Legislature(1999 - 2000)

04/15/1999 01:24 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
         HOUSE JUDICIARY STANDING COMMITTEE                                                                                     
                   April 15, 1999                                                                                               
                     1:24 p.m.                                                                                                  
MEMBERS PRESENT                                                                                                                 
Representative Pete Kott, Chairman                                                                                              
Representative Joe Green                                                                                                        
Representative Norman Rokeberg                                                                                                  
Representative Jeannette James                                                                                                  
Representative Eric Croft                                                                                                       
Representative Beth Kerttula                                                                                                    
MEMBERS ABSENT                                                                                                                  
Representative Lisa Murkowski                                                                                                   
COMMITTEE CALENDAR                                                                                                              
HOUSE BILL NO. 75                                                                                                               
"An Act relating to murder; authorizing capital punishment,                                                                     
classifying murder in the first degree as a capital felony, and                                                                 
allowing the imposition of the death penalty when certain of those                                                              
murders are committed against children; establishing sentencing                                                                 
procedures for capital felonies; and amending Rules 32, 32.1, and                                                               
32.3, Alaska Rules of Criminal Procedure, and Rules 204, 209, 210,                                                              
and 212, Alaska Rules of Appellate Procedure."                                                                                  
     - HEARD AND HELD; ASSIGNED TO SUBCOMMITTEE                                                                                 
HOUSE BILL NO. 67                                                                                                               
"An Act relating to release of certain persons alleged to have                                                                  
committed certain sexual offenses."                                                                                             
     - MOVED CSHB 67(JUD) OUT OF COMMITTEE                                                                                      
HOUSE BILL NO. 176                                                                                                              
"An Act relating to attorney fees and costs and the granting of                                                                 
public interest litigant status in proceedings related to                                                                       
administrative actions and inactions; and amending Rules 79 and 82,                                                             
Alaska Rules of Civil Procedure, and Rule 508, Alaska Rules of                                                                  
Appellate Procedure."                                                                                                           
     - HEARD AND HELD                                                                                                           
HOUSE JOINT RESOLUTION NO. 30                                                                                                   
Proposing amendments to the Constitution of the State of Alaska                                                                 
repealing provisions relating to the constitutional budget reserve                                                              
fund and providing that the balance in the fund be deposited into                                                               
the budget reserve fund established by statute.                                                                                 
     - HEARD AND HELD                                                                                                           
* HOUSE JOINT RESOLUTION NO. 2                                                                                                  
Proposing amendments to the Constitution of the State of Alaska                                                                 
relating to a biennial state budget, to the appropriation limit,                                                                
and to appropriations from the budget reserve fund.                                                                             
     - BILL HEARING CANCELED                                                                                                    
* HOUSE BILL NO. 56                                                                                                             
"An Act relating to the crimes of murder, manslaughter, and                                                                     
criminally negligent homicide of children and other victims."                                                                   
     - BILL HEARING CANCELED                                                                                                    
(* First public hearing)                                                                                                        
PREVIOUS ACTION                                                                                                                 
BILL: HB  75                                                                                                                    
SHORT TITLE: CAPITAL PUNISHMENT FOR CHILD MURDER                                                                                
SPONSOR(S): REPRESENTATIVES(S) MASEK                                                                                            
Jrn-Date    Jrn-Page           Action                                                                                           
 2/03/99       131     (H)  READ THE FIRST TIME - REFERRAL(S)                                                                   
 2/03/99       132     (H)  JUDICIARY, FINANCE                                                                                  
 4/14/99               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
 4/14/99               (H)  HEARD AND HELD                                                                                      
 4/15/99               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
BILL: HB 67                                                                                                                     
SHORT TITLE: BAIL HEARING FOR SEX OFFENDERS                                                                                     
SPONSOR(S): REPRESENTATIVES(S) ROKEBERG, Dyson                                                                                  
Jrn-Date    Jrn-Page           Action                                                                                           
 1/25/99        81     (H)  READ THE FIRST TIME - REFERRAL(S)                                                                   
 1/25/99        81     (H)  JUDICIARY, FINANCE                                                                                  
 2/12/99       210     (H)  COSPONSOR(S): DYSON                                                                                 
 2/24/99               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
 2/24/99               (H)  HEARD AND HELD                                                                                      
 2/24/99               (H)  MINUTE(JUD)                                                                                         
 3/03/99               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
 3/03/99               (H)  SCHEDULED BUT NOT HEARD                                                                             
 4/15/99               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
BILL: HB 176                                                                                                                    
SHORT TITLE: PUBLIC INTEREST LITIGANTS                                                                                          
SPONSOR(S): REPRESENTATIVES(S) GREEN                                                                                            
Jrn-Date    Jrn-Page           Action                                                                                           
 3/31/99       628     (H)  READ THE FIRST TIME - REFERRAL(S)                                                                   
 3/31/99       628     (H)  JUD, FIN                                                                                            
 4/14/99               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
 4/14/99               (H)  SCHEDULED BUT NOT HEARD                                                                             
 4/15/99               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
BILL: HJR 30                                                                                                                    
SHORT TITLE: CONST. AM: REPEAL BUDGET RESERVE FUND                                                                              
SPONSOR(S): REPRESENTATIVES(S) JAMES                                                                                            
Jrn-Date    Jrn-Page           Action                                                                                           
 3/19/99       513     (H)  READ THE FIRST TIME - REFERRAL(S)                                                                   
 3/19/99       513     (H)  JUDICIARY, FINANCE                                                                                  
 4/12/99               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
 4/12/99               (H)  SCHEDULED BUT NOT HEARD                                                                             
WITNESS REGISTER                                                                                                                
REPRESENTATIVE BEVERLY MASEK                                                                                                    
Alaska State Legislature                                                                                                        
Capitol Building, Room 432                                                                                                      
Juneau, Alaska  99801                                                                                                           
Telephone:  (907) 465-2679                                                                                                      
POSITION STATEMENT:  As sponsor of HB 75, testified about intent.                                                               
CYNTHIA STROUT, Attorney at Law                                                                                                 
510 L Street, Number 306                                                                                                        
Anchorage, Alaska  99501                                                                                                        
Telephone:  (907) 276-0377                                                                                                      
POSITION STATEMENT:  Testified in opposition to HB 75, as attorney                                                              
                     and as president of Alaskans Against                                                                       
                     the Death Penalty.                                                                                         
KEVIN McCOY                                                                                                                     
1113 N Street                                                                                                                   
Anchorage, Alaska  99501                                                                                                        
Telephone:  (907) 272-4972                                                                                                      
POSITION STATEMENT:  Testified in opposition to HB 75.                                                                          
M.J. HADEN                                                                                                                      
P.O. Box 671122                                                                                                                 
Chugiak, Alaska  99567                                                                                                          
Telephone:  (907) 688-7530                                                                                                      
POSITION STATEMENT:  Testified on HB 75 in opposition to death                                                                  
JENNIFER RUDINGER, Executive Director                                                                                           
Alaska Civil Liberties Union                                                                                                    
P.O. Box 201844                                                                                                                 
Anchorage, Alaska  99520                                                                                                        
Telephone:  (907) 258-0044                                                                                                      
POSITION STATEMENT:  Testified in opposition to HB 75.                                                                          
BLAIR McCUNE, Deputy Director                                                                                                   
Public Defender Agency                                                                                                          
Department of Administration                                                                                                    
900 West 5th Avenue, Suite 200                                                                                                  
Anchorage, Alaska  99501-2090                                                                                                   
Telephone:  (907) 264-4400                                                                                                      
POSITION STATEMENT:  Testified on HB 75; explained concerns.                                                                    
BARBARA BRINK, Director                                                                                                         
Public Defender Agency                                                                                                          
Department of Administration                                                                                                    
900 West 5th Avenue, Suite 200                                                                                                  
Anchorage, Alaska  99501-2090                                                                                                   
Telephone:  (907) 264-4400                                                                                                      
POSITION STATEMENT:  Testified on HB 75; discussed costs.                                                                       
MARGO KNUTH, Assistant Attorney General                                                                                         
Office of the Commissioner - Juneau                                                                                             
Department of Corrections                                                                                                       
240 Main Street, Suite 700                                                                                                      
Juneau, Alaska  99801                                                                                                           
Telephone:  (907) 465-4338                                                                                                      
POSITION STATEMENT:  Testified on HB 75; explained Department of                                                                
                     Corrections fiscal note and spoke on own                                                                   
                     behalf against the death penalty.                                                                          
JANET SEITZ, Legislative Assistant                                                                                              
   to Representative Norman Rokeberg                                                                                            
Alaska State Legislature                                                                                                        
Capitol Building, Room 24                                                                                                       
Juneau, Alaska  99801                                                                                                           
Telephone:  (907) 465-4968                                                                                                      
POSITION STATEMENT:  Explained changes in proposed CS for HB 67.                                                                
DOUG WOOLIVER, Administrative Attorney                                                                                          
Office of the Administrative Director                                                                                           
Alaska Court System                                                                                                             
820 West 4th Avenue                                                                                                             
Anchorage, Alaska  99501-2005                                                                                                   
Telephone:  (907) 264-8265                                                                                                      
POSITION STATEMENT:  Commented on changes to HB 67.                                                                             
JEFFREY LOGAN, Legislative Assistant                                                                                            
   to Representative Joe Green                                                                                                  
Alaska State Legislature                                                                                                        
Capitol Building, Room 214                                                                                                      
Juneau, Alaska  99801                                                                                                           
Telephone:  (907) 465-3727                                                                                                      
POSITION STATEMENT:  Presented HB 176 on behalf of sponsor.                                                                     
WILLIAM GREENE, Deputy Municipal Attorney                                                                                       
Municipality of Anchorage                                                                                                       
P.O. Box 196650                                                                                                                 
Anchorage, Alaska  99519                                                                                                        
Telephone:  (907) 343-4545                                                                                                      
POSITION STATEMENT:  Testified that HB 176 is a step in the right                                                               
                     direction; suggested that municipality be                                                                  
                     included under the bill.                                                                                   
STEVE WILLIAMS, Attorney at Law                                                                                                 
500 L Street, Suite 400                                                                                                         
Anchorage, Alaska  99501                                                                                                        
Telephone:  (907) 276-6922                                                                                                      
POSITION STATEMENT:  Testified in opposition to HB 176.                                                                         
KEVIN JARDELL, Legislative Assistant                                                                                            
   to Representative Joe Green                                                                                                  
Alaska State Legislature                                                                                                        
Capitol Building, Room 214                                                                                                      
Juneau, Alaska  99801                                                                                                           
Telephone:  (907) 465-6791                                                                                                      
POSITION STATEMENT:  Testified on behalf of sponsor of HB 176.                                                                  
LAUREE HUGONIN, Director                                                                                                        
Alaska Network on Domestic Violence and Sexual Assault                                                                          
130 Seward Street, Room 501                                                                                                     
Juneau, Alaska  99801                                                                                                           
Telephone:  (907) 586-3650                                                                                                      
POSITION STATEMENT:  Testified on HB 176; suggested changes.                                                                    
BARBARA COTTING, Legislative Assistant                                                                                          
   to Representative Jeannette James                                                                                            
Alaska State Legislature                                                                                                        
Capitol Building, Room 102                                                                                                      
Juneau, Alaska  99801                                                                                                           
Telephone:  (907) 465-6822                                                                                                      
POSITION STATEMENT:  Gave opening statement on HJR 30 on behalf of                                                              
ACTION NARRATIVE                                                                                                                
TAPE 99-32, SIDE A                                                                                                              
Number 0001                                                                                                                     
CHAIRMAN PETE KOTT called the House Judiciary Standing Committee                                                                
meeting to order at 1:24 p.m.  Members present at the call to order                                                             
were Representatives Kott, Green, Croft and Kerttula.                                                                           
Representatives Rokeberg and James arrived at 1:25 p.m. and 1:26                                                                
p.m., respectively.                                                                                                             
HB 75 - CAPITAL PUNISHMENT FOR CHILD MURDER                                                                                     
CHAIRMAN KOTT announced that the committee would continue its                                                                   
hearing on House Bill No. 75, "An Act relating to murder;                                                                       
authorizing capital punishment, classifying murder in the first                                                                 
degree as a capital felony, and allowing the imposition of the                                                                  
death penalty when certain of those murders are committed against                                                               
children; establishing sentencing procedures for capital felonies;                                                              
and amending Rules 32, 32.1, and 32.3, Alaska Rules of Criminal                                                                 
Procedure, and Rules 204, 209, 210, and 212, Alaska Rules of                                                                    
Appellate Procedure."  Chairman Kott asked whether the sponsor had                                                              
additional comments.                                                                                                            
Number 0080                                                                                                                     
REPRESENTATIVE BEVERLY MASEK, Alaska State Legislature, sponsor,                                                                
thanked the chairman but indicated she would rather hear the public                                                             
Number 0135                                                                                                                     
CYNTHIA STROUT, Attorney at Law, testified via teleconference from                                                              
Anchorage.  A criminal defense attorney since 1982 and president of                                                             
Alaskans Against the Death Penalty, Ms. Strout said she would focus                                                             
on two areas.  First, current laws sufficiently protect the public.                                                             
She is aware of no case being overturned in our court system where                                                              
people have received sentences of 99 years.  She believes the                                                                   
courts are well able to provide sentences for people who commit                                                                 
homicides under these conditions that will ensure that they are not                                                             
released back into their communities.  Second, somewhat contrary to                                                             
the intent, under this bill the state could execute people 16 years                                                             
old or younger, including a 15-year-old who killed a 12-year-old                                                                
while playing Russian roulette, for example, or a 7-year-old who                                                                
killed his 4-year-old brother, as in a recent case.  Ms. Strout                                                                 
noted that the previous week's newspaper discussed recent studies                                                               
showing that prison populations are full of people who were abused                                                              
as children.  Ms. Strout asked whether it wouldn't be better to put                                                             
the necessary funds to enact this bill into preventing child abuse,                                                             
thereby stopping that cycle of violence.                                                                                        
Number 0407                                                                                                                     
CHAIRMAN KOTT commented that when he had posed the question the                                                                 
previous day, he was inquiring whether anyone was aware of someone                                                              
in Alaska sent to prison for life, then later cleared because of                                                                
finding out that person wasn't the perpetrator of the crime.                                                                    
MS. STROUT referred to an article that she believes the committee                                                               
has, in which studies indicate that when Alaska had the death                                                                   
penalty, in territorial days, there were serious factual questions                                                              
about the guilt of two people who were executed.  She believes that                                                             
other states' history should be a guide; in Illinois, 11 people                                                                 
have been released from death row, for example, based on "factual                                                               
innocence."  Alaska, with no death penalty, has nothing to                                                                      
correlate with that.  However, it should give people pause.                                                                     
Number 0528                                                                                                                     
KEVIN McCOY testified via teleconference from Anchorage in                                                                      
opposition to HB 75.  An Alaska resident since 1976, he is married                                                              
and has raised two children, his most precious connection to this                                                               
world and this state, he told members.  The best teachers have been                                                             
those who teach by example, Mr. McCoy pointed out.  He is most                                                                  
troubled by this proposal because of the example that it sets,                                                                  
trying to teach people, by killing, that killing is wrong.                                                                      
Although he would be devastated if something happened to his                                                                    
children, this bill would not remedy that.  He recalled testimony                                                               
by Marietta Yeager (ph) a few years ago against a death penalty                                                                 
bill; her daughter had been taken from a campground and killed, and                                                             
her comments had really made Mr. McCoy think about the issue.  He                                                               
cannot endorse the death penalty, he told members, because it                                                                   
wouldn't bring the child back.  Furthermore, he wouldn't want a                                                                 
memorial for his child to be the death of another person.  Mr.                                                                  
McCoy endorsed all the comments made the previous day and urged                                                                 
members to vote against this bill.  It would cost too much, it                                                                  
wouldn't work, and it seems there are more serious budgetary                                                                    
concerns, which would have more of a direct, positive impact on                                                                 
Alaskans, he concluded.                                                                                                         
Number 0691                                                                                                                     
M.J. HADEN testified via teleconference from Anchorage in                                                                       
opposition to the death penalty.  A paralegal with the federal                                                                  
public defenders office, she moved to Alaska last year from                                                                     
Georgia, where she had also worked for the federal public defenders                                                             
office.  She noted that her testimony is along the lines of Mr.                                                                 
Curtner's testimony regarding his first-hand experiences with the                                                               
death penalty in Ohio, heard the previous day.  However, her own                                                                
experience, both at the trial level and at the post-conviction                                                                  
stage, was in Georgia, which, unlike Ohio, does execute defendants                                                              
sentenced to death.  Since 1976, when the death penalty was                                                                     
reinstated there, the state has executed 23 people.  In the past 20                                                             
years, three individuals sentenced to the electric chair were                                                                   
proven innocent.  Currently, 123 people are on Georgia's death row.                                                             
MS. HADEN told members that she has witnessed so many pitfalls in                                                               
the implementation of the death penalty in Georgia that it would be                                                             
difficult to share them all.  These include defendants represented                                                              
by lawyers with no criminal law experience; trials where the                                                                    
appointed attorney only met with the defendant a couple of days                                                                 
before trial was to begin; cases where vital exculpatory evidence                                                               
was discovered to have been withheld from defense counsel; and                                                                  
cases where witnesses, including law enforcement officers, were                                                                 
found to have lied.  Furthermore, because the decision of whether                                                               
to seek the death penalty is exclusively that of the district                                                                   
attorney in Georgia, she has seen the death penalty used as a                                                                   
political ploy in election years.  She said she can't begin to                                                                  
recount the disparity and discrimination surrounding Georgia's use                                                              
of the death penalty.                                                                                                           
MS. HADEN shared two memorable moments in her career.  One was her                                                              
first visit to Georgia's death row.  She had been studying her case                                                             
file, reading the transcripts and reviewing the graphic evidence,                                                               
and she didn't know what to expect from this person.  When he came                                                              
in, he was not a monster or a devil, she discovered, but a human                                                                
being who laughed, cried, and got angry like anyone else.  The                                                                  
second memory was from the end of a trial, awaiting sentencing for                                                              
a client who had been found guilty.  Waiting in a room with his                                                                 
mother and brother to see how the 12 jurors had voted, she could                                                                
see the pain on their faces, and the love they still had for their                                                              
family member, despite what he might have done.  "We're talking                                                                 
about putting to death sons and daughters, sisters and brothers,                                                                
mothers and fathers," Ms. Haden concluded.  "We're talking about                                                                
our government killing human beings, and that is wrong."                                                                        
Number 0992                                                                                                                     
JENNIFER RUDINGER, Executive Director, Alaska Civil Liberties Union                                                             
(AKCLU), testified via teleconference from Anchorage in opposition                                                              
to HB 75, noting that the AKCLU is a nonprofit, nonpartisan                                                                     
organization with statewide membership, an affiliate of the                                                                     
American Civil Liberties Union (ACLU) whose mission is to preserve                                                              
and defend the guarantees of individual liberties found in the Bill                                                             
of Rights and in the Alaska constitution.                                                                                       
MS. RUDINGER told the committee that while there is no good reason                                                              
for the passage of HB 75, there are many reasons for its defeat,                                                                
including constitutional and economic factors; the racially                                                                     
discriminatory fashion in which the death penalty is allocated; and                                                             
the fact that people have been sent to death row only to later be                                                               
proven innocent.  She believes that most people would say the                                                                   
government is inefficient and has too much power already.  However,                                                             
adoption of the death penalty would give the state the ultimate                                                                 
power of deciding who lives and who dies.                                                                                       
MS. RUDINGER emphasized the proven racial disparities in the                                                                    
charging, sentencing and imposition of the death penalty.  In 1990,                                                             
the U.S. General Accounting Office reported to Congress that in                                                                 
this nation's trial courts, the killing of a White person is                                                                    
treated much more severely than the killing of a person of color.                                                               
For example, 80 percent of the victims of the 313 people executed                                                               
between January 1977 and the end of 1995 were White.                                                                            
MS. RUDINGER next addressed erroneous convictions resulting in                                                                  
death sentences, which she said have occurred in virtually every                                                                
jurisdiction in the nation.  Advances in scientific technology,                                                                 
such as DNA testing, have exonerated people on death row, and                                                                   
crucial testimony has sometimes later been proven false.  Ms.                                                                   
Rudinger cited two examples.  The first was a Florida couple                                                                    
convicted of a murder; although the husband was executed, the                                                                   
wife's conviction was vacated when it was proven that the crucial                                                               
evidence against them had consisted mainly of the perjured                                                                      
testimony of an ex-convict who had turned state's witness to avoid                                                              
a death sentence himself.  In the second example, reported in the                                                               
Anchorage Daily News in February, a man on death row in Illinois                                                                
was exonerated due to the efforts of students at Northwestern                                                                   
University.  Ms. Rudinger concluded, "All governments do make                                                                   
mistakes.  Please, do not give our state government the power to                                                                
make a mistake by executing an innocent person."                                                                                
Number 1259                                                                                                                     
BLAIR McCUNE, Deputy Director, Public Defender Agency, Department                                                               
of Administration, testified via teleconference from Anchorage.  He                                                             
said he is personally opposed to the death penalty but would                                                                    
address the nuts and bolts of HB 75; in addition, he would try to                                                               
provide written comments about the problems he sees with the bill.                                                              
MR. McCUNE pointed out that because this bill does not call for an                                                              
advisory vote, death penalty prosecutions could begin immediately                                                               
after it became effective.  In addition, when he first saw the                                                                  
bill's title, he expected a statute making an intentional killing                                                               
of a child an offense.  However, on page 3, lines 20 and 21, for                                                                
example, it makes all first-degree murders capital offenses.  This                                                              
bill greatly expands the power of Alaska statutes to have death                                                                 
penalties for other first-degree murders, in addition to the murder                                                             
of a child, to be punished by death.                                                                                            
MR. McCUNE urged members to consider that in recent years the                                                                   
legislature has been asked to expand murder in the first degree, to                                                             
include situations where someone knowingly engages in conduct that                                                              
is not necessarily intentional.  Furthermore, accomplices who do                                                                
not cause the death of a person can be found guilty of murder in                                                                
the first degree.                                                                                                               
MR. McCUNE noted that the bill sets up a sentencing procedure.  He                                                              
called attention to page 8, lines 21 through 23, then explained                                                                 
that if somebody is convicted of any first-degree murder, HB 75                                                                 
would require that person to go to the sentencing phase for a death                                                             
penalty, even though the victim of the offense was not a child.                                                                 
Mr. McCune said that is a very odd provision that doesn't seem to                                                               
fit within the intent of the bill, and he believes that the                                                                     
committee ought to take a close look at it.                                                                                     
MR. McCUNE discussed the aggravating factors, referring to pages 9,                                                             
beginning at line 31, and continuing to page 10, line 8.  Noting                                                                
that this section finally mentions children as victims, he                                                                      
expressed concern that instead of listing the aggravating factors                                                               
numerically, and saying that the jury must find one of the listed                                                               
aggravating factors, the bill says a penalty may be imposed if                                                                  
aggravating factors are found.  He believes that the intention of                                                               
the bill is that all the aggravating factors have to be met before                                                              
a death penalty could be imposed.  However, it could be interpreted                                                             
that if any of the aggravating factors is found, the death penalty                                                              
could be imposed.                                                                                                               
MR. McCUNE next expressed concern that only four mitigating factors                                                             
are listed.  In every other type of criminal case, there is a much                                                              
longer list of mitigating factors that the judge can take into                                                                  
account in deciding what sentence to impose.  These mitigating                                                                  
factors are found in AS 12.55.151(d).  Among them is the defender                                                               
who was an accomplice in the case, but played a minor role; an aged                                                             
defendant who acted under a mental infirmity; the existence of                                                                  
serious provocation from the victim of the offense; and, most                                                                   
important - which Mr. McCune believes absolutely should be included                                                             
as a mitigating factor that the jury, in this case, could take into                                                             
account - is whether the offense was among the least serious of the                                                             
offenses set out in the statute.  However, a jury would be                                                                      
powerless to take that into account, because it is not included in                                                              
the mitigating factors that are in this bill.                                                                                   
MR. McCUNE drew member's attention to page 8, line 28.  He                                                                      
explained that he is concerned about the provision that says that                                                               
evidence [as to any aggravating or mitigating factor] can be                                                                    
admitted "regardless of the admissibility of the evidence under the                                                             
rules of evidence."  He said he understands that in a sentencing                                                                
proceeding hearsay can be allowed if a person has an adequate                                                                   
change to rebut it.  However, he believes that this provision goes                                                              
much beyond that, as it would allow evidence that was illegally                                                                 
seized to be used in the penalty phase in a death penalty case.                                                                 
MR. McCUNE advised members that the final concern regards merit                                                                 
appeals.  On page 10, lines 20 through 31, it says that the                                                                     
sentence review procedure is set up in the Alaska Supreme Court.                                                                
He pointed out that sentence review is distinguished from issues                                                                
like whether the trial judge made errors in admitting evidence,                                                                 
whether illegally seized evidence was admitted, or whether a                                                                    
confession without the benefit of Miranda rights was admitted                                                                   
against the defendant.  These are types of merit appeal issues that                                                             
the Alaska Court of Appeals currently handles.  In this bill, it                                                                
isn't clear which court - the Alaska Court of Appeals or the Alaska                                                             
Supreme Court - would review the merit issues.                                                                                  
Number 1683                                                                                                                     
REPRESENTATIVE KERTTULA responded that the section on page 8, line                                                              
28, about admitting testimony regardless of the admissibility of                                                                
the evidence, had bothered her, as well.  She asked whether Mr.                                                                 
McCune knows what happens in sentencing phases in other states on                                                               
that issue.                                                                                                                     
MR. McCUNE replied that although he hasn't studied other state law                                                              
cases, he has seen federal cases where, for example, the United                                                                 
States Supreme Court has overturned death sentences because of                                                                  
admissibility problems in the evidence.  He said he believes there                                                              
is a U.S. Supreme Court case in which the jury heard prejudicial                                                                
types of statements that had swayed them.  With this provision,                                                                 
he'd be afraid that the trial judge would think that he or she                                                                  
didn't have the power to apply Evidence Rule 403 and find that if                                                               
the probative value of the evidence was not outweighed by the                                                                   
prejudicial effect, the judge would be powerless to remove that                                                                 
evidence from the consideration of the jury.                                                                                    
Number 1755                                                                                                                     
REPRESENTATIVE CROFT referred to page 8, line 22, which says that                                                               
if, after a trial by jury, a defendant is convicted of a capital                                                                
offense, the court shall conduct a separate proceeding.  He asked                                                               
whether the state would run all first-degree murders through this,                                                              
even if there wasn't an allegation that there was a child involved.                                                             
MR. McCUNE replied that it is the way the bill is currently                                                                     
written, which is odd to him, because the title leads him to                                                                    
believe it would involve just murders of a child.  As written,                                                                  
first-degree murder is a capital felony, and for a capital felony,                                                              
there must be a separate sentencing proceeding before a jury.                                                                   
Number 1821                                                                                                                     
BARBARA BRINK, Director, Public Defender Agency, Department of                                                                  
Administration, testified via teleconference from Anchorage about                                                               
the costs.  She said she believes that the fiscal note is                                                                       
self-explanatory.  The figures that seem high are because of the                                                                
unique requirement of "capital litigation."  Capital punishment in                                                              
Alaska, as in every other state, will be more expensive than                                                                    
convicting and sentencing people to life imprisonment without the                                                               
possibility of parole, she explained.  These costs are not what is                                                              
commonly believed to be the result of some frivolous and lengthy                                                                
appeal process, but, rather, the result of the constitutional                                                                   
uniqueness of the death penalty cases, and the safeguards that have                                                             
been set up by the United States Supreme Court.  Ms. Brink expanded                                                             
on that:                                                                                                                        
     Basically, those safeguards require that every jury be given                                                               
     very clear guidelines on sentencing, in exclusive provisions                                                               
     defining what are aggravating and mitigating circumstances.                                                                
     A defendant is constitutionally entitled to have two jury                                                                  
     trials.  The first jury trial is to establish their guilt or                                                               
     innocence, and then, if the person is convicted, they are                                                                  
     entitled to a second jury trial to determine whether or not                                                                
     they should receive the death penalty.                                                                                     
     Constitutionally, every defendant is granted automatic                                                                     
     oversight protection by the state supreme court, and all of                                                                
     these constitutional safeguards translate into what has been                                                               
     described as "super due process."  The result of that                                                                      
     heightened scrutiny - because we're so concerned about who                                                                 
     gets convicted, and we don't want any bad convictions - is                                                                 
     that there is a much more extensive jury selection procedure                                                               
     at any capital trial.                                                                                                      
     There is a fourfold increase in the numbers of motions that                                                                
     are filed in capital cases than in normal murder cases without                                                             
     possibility of the death sentence.  As I've pointed out,                                                                   
     there's a longer, dual sentencing process.  That translates                                                                
     into more investigation needed, more expert testimony needed,                                                              
     and more lawyers who specialize solely in death penalty                                                                    
     litigation.  That, combined with the automatic mandatory                                                                   
     appeals, has resulted in some dramatic costs.                                                                              
     We don't have to operate in a vacuum, and this isn't just my                                                               
     speculation about what it's going to cost. ... There've been                                                               
     a myriad of studies conducted across the Lower 48 in those                                                                 
     states that do have the death penalty, and every one of those                                                              
     studies concludes that it is much more costly to have a death                                                              
     penalty than not to have one.  The most comprehensive study                                                                
     that's been conducted so far was done by Duke University in                                                                
     May of 1993, and it simply studied North Carolina.  In North                                                               
     Carolina, they found that the death penalty cost $2.16 million                                                             
     dollars, per execution, over the cost of a non-death-penalty                                                               
     murder case.  They also determined that the bulk of that cost                                                              
     did occur at the trial level, not the appellate level.                                                                     
     A study in California found that in California the state spent                                                             
     $90 million annually over and above the ordinary costs of                                                                  
     noncapital litigation to have a death penalty.  They also                                                                  
     found that $78 out of that $90 million was incurred at the                                                                 
     trial level.  Florida did a study in 1988 where they found                                                                 
     that they've spent $57 billion dollars on the death penalty                                                                
     between 1973 and 1988, and yet only achieved 18 executions.                                                                
     Therefore, it cost them about $3.2 million to try and convict                                                              
     and execute a single person.                                                                                               
     In Texas, a study was done in 1992, and there they found that                                                              
     the average death penalty case cost the taxpayer $2.3 million,                                                             
     which was three times the cost of imprisoning someone in a                                                                 
     single cell, at the highest level of security, for 40 years.                                                               
     I'd also wanted to point out that even though Florida spent                                                                
     $3.2 million per execution, they've (indisc.) a budget crisis                                                              
     two years ago, similar to what we're looking at; the                                                                       
     department of correction's budget was cut mid-year, and that                                                               
     resulted in the early release of 3,000 prisoners from the                                                                  
     department of corrections.  In Texas, the costs are saved by                                                               
     giving Texas prisoners so much "good time" that the average                                                                
     Texas prisoner only serves 20 percent of their imposed                                                                     
     sentence; and it should also probably mean, though, ... that                                                               
     even though Texas has a death penalty - has had one for years,                                                             
     and has executed the most number of people in the United                                                                   
     States - its murder rate is among the highest in the entire                                                                
     There's some more current data, too, because other states have                                                             
     decided that this is becoming a very costly proposition to                                                                 
     them.  In 1998, a new report from the Nebraska judiciary                                                                   
     committee concluded that any savings that they had from                                                                    
     executing an inmate were far outweighed by the financial legal                                                             
     costs; and the conclusion of that report was a recommendation,                                                             
     or a belief, that the current death penalty was not in the                                                                 
     best interests of Nebraskans.                                                                                              
     The federal government has also studied the cost of the death                                                              
     penalty.  There was a report from the judicial conference on                                                               
     the United States; that report concluded that defense costs                                                                
     were four times higher in any case where the death penalty was                                                             
     brought than ... when death was not sought.  It also concluded                                                             
     that prosecution costs were 60 percent higher than the defense                                                             
     costs, even without adding in all the money provided by law                                                                
     enforcement agents doing investigations.                                                                                   
     A recent study in Louisiana - and that study was done in 1998                                                              
     - convinced the prosecutor that life in prison would be a                                                                  
     better solution than the death penalty.  He said it's a matter                                                             
     of simple economics:  It just costs too much to execute                                                                    
     somebody.  You might remember that a couple of years ago New                                                               
     York was considering whether or not to impose a death penalty;                                                             
     they have recently done so.  But in the studies that they did,                                                             
     to decide whether or not to implement the death penalty, they                                                              
     concluded it was going to cost them $118 million a year.  The                                                              
     first death row inmate in New York, a gentleman by the name of                                                             
     Dale Harris (ph), the entire, total costs of his case are                                                                  
     going to be $3 million; and a recent columnist decided that                                                                
     after spending $3 million for a capital case, they really had                                                              
     bought themselves nothing that they couldn't have gotten with                                                              
     a sentence of life without parole. ...                                                                                     
     Washington State is also looking at the cost of their death                                                                
     penalty.  They had determined, according to a 1999 study, that                                                             
     a single death penalty trial approaches $1 million.  The                                                                   
     county - who down in Washington is responsible for providing                                                               
     those fees - had to let one government position go unfilled;                                                               
     they've eliminated (indisc.); they've drained a $300,000                                                                   
     contingency fund; they eliminated all capital improvements;                                                                
     and a sheriff's request to replace a van ... for prisoners,                                                                
     which has broken down, has been canceled.  So, in those                                                                    
     states, the smaller jurisdictions have to pay for it, and are                                                              
     having a very ... hard time of doing it.                                                                                   
     The state of Ohio also did a recent study; this is also from                                                               
     1999.  They spent $1.5 million to kill one person; he actually                                                             
     was mentally ill and asked to be executed, and didn't even                                                                 
     want any appeals.  So, they're finding it to be a pretty high                                                              
     cost, as well.                                                                                                             
Number 2164                                                                                                                     
REPRESENTATIVE CROFT referred to page 2 of the fiscal note, where                                                               
it states the assumption that this would only be done where the                                                                 
victim was under the age of 18.  He agreed with Mr. McCune that as                                                              
the bill reads, on page 3, murder in the first degree is a capital                                                              
felony, punishable under AS 12.55.125, which lists these "sort of                                                               
aggravated first-degree" offenses, including killing a police                                                                   
officer, having done it before, or clear and convincing evidence of                                                             
torture.  He asked Ms. Brink how she would change the fiscal note                                                               
if they take the bill at its word and include every aggravated                                                                  
offense, every "mandatory 99" trial, that will be held in Alaska.                                                               
MS. BRINK explained that the fiscal note assumption was that the                                                                
bill didn't mean what it says and would be corrected in drafting.                                                               
As to Representative Croft's question, the calculation would be                                                                 
difficult to do off the top of her head.  For every defendant who                                                               
currently gets sentenced to the 99 years, they would do an                                                                      
additional jury trial, which she doesn't believe would be more than                                                             
a couple of cases per year.  It would cost her staff additional                                                                 
investigation, witness testimony and, mostly, time, as a jury trial                                                             
is much more time-consuming than is a hearing before a judge.  It                                                               
is not the same as figuring the cost of capital litigation, she                                                                 
pointed out.                                                                                                                    
Number 2289                                                                                                                     
REPRESENTATIVE CROFT said that Ms. Brink had made assumptions to                                                                
bring the fiscal note down, to make it a conservative number.  He                                                               
asked whether Ms. Brink had used the studies she had cited to make                                                              
the fiscal note.                                                                                                                
MS. BRINK affirmed that.  She had also consulted with Rich Curtner,                                                             
the chief federal defender for Alaska, who had testified the                                                                    
previous day, she said, although he had not identified himself as                                                               
such.  Because Mr. Curtner is one of the few people in Alaska with                                                              
capital litigation experience, she had relied on figures and                                                                    
information that he had at his disposal.                                                                                        
MS. BRINK reported that she also had looked at the American Bar                                                                 
Association standards; they have published exclusive guidelines for                                                             
the appointment and performance of counsel in death penalty cases.                                                              
They require, specifically, that in any case where the death                                                                    
penalty is sought, two qualified trial attorneys must be assigned                                                               
to represent the defendant.                                                                                                     
Number 2337                                                                                                                     
REPRESENTATIVE CROFT remarked that he just wanted to get on the                                                                 
record that this is, if anything, a conservative fiscal note.  He                                                               
then stated his understanding that as the bill is drafted, it is a                                                              
"sort of superfluous jury trial" if the victim is known to be over                                                              
the age of 18.  However, it says that "the following aggravating                                                                
factors may be considered"; if construed to mean that other                                                                     
aggravating factors could be considered, then this is no longer a                                                               
superfluous trial.  He asked whether, under that reading, all of                                                                
these "not mandatory 99s" would become death penalty cases.                                                                     
MS. BRINK agreed it could be read that way, although she believes                                                               
they would try to read it in a much more narrow sense.  She pointed                                                             
out that in addition to the facts of whether the child who died was                                                             
under 18, the jury has to decide what punishment is appropriate;                                                                
the purpose of the sentencing jury trial is to introduce a whole                                                                
variety of evidence concerning the defendant's entire life, so that                                                             
the jury can decide that.  "So, I don't think a jury trial would                                                                
ever be superfluous if the state was asking for capital punishment,                                                             
because there would be many more issues happening at the jury                                                                   
trial, not just proof of the mitigators or aggravators," she                                                                    
Number 2406                                                                                                                     
REPRESENTATIVE CROFT said that is an interesting point, although he                                                             
doesn't know that he understands it.  He asked, "If we knew for a                                                               
fact that the victim was a 55-year-old, ... what does this empower                                                              
that jury trial to determine, other than whether it's capital or                                                                
MS. BRINK said that is the part that doesn't make, the way the bill                                                             
is drafted.   She explained, "In a capital trial, they usually                                                                  
draft the statute so that the jury's decision is 'life' or 'death.'                                                             
So, they'd have to make that decision, in addition to deciding                                                                  
whether or not there's enough proof to prove all those aggravators                                                              
or mitigators.  In this case, if every capital murder - which is                                                                
defined as first-degree murder for a jury trial - conceivably, I                                                                
suppose, if you gave the statute its most broad interpretation, you                                                             
could have the jury deciding what (indisc.) this defendant could be                                                             
facing, which is very odd.  It would not usually happen under the                                                               
Alaska Statutes, where sentencing is purely the province of the                                                                 
judge."  She offered to provide written facts and figures relating                                                              
to her earlier testimony.                                                                                                       
TAPE 99-32, SIDE B                                                                                                              
Number 0001                                                                                                                     
MS. BRINK mentioned that Los Angeles County spends $3 million per                                                               
execution.  She expressed concern that the exorbitant cost of                                                                   
capital punishment is apt to make Alaska less safe, because badly                                                               
needed financial and legal resources will be diverted from more                                                                 
effective crime-fighting strategies.  For example, the greatly                                                                  
increased number of police officers on the street is responsible                                                                
for the reduced crime rate, she said, both nationwide and in                                                                    
Alaska.  In states with the death penalty, however, police are                                                                  
being laid off, prisoners are getting released early, and the court                                                             
systems are clogged.  Ms. Brink told members, "Let's not turn                                                                   
Alaska into another state where millions of dollars are poured into                                                             
the death penalty machine, with no resulting increase in public                                                                 
CHAIRMAN KOTT thanked Ms. Brink and asked that she forward the                                                                  
studies and statistics to the committee.                                                                                        
Number 0106                                                                                                                     
MARGO KNUTH, Assistant Attorney General, Office of the Commissioner                                                             
- Juneau, Department of Corrections (DOC), came forward, specifying                                                             
that she was speaking only for the DOC, not the Department of Law.                                                              
She told members that the DOC's fiscal note for HB 75 indicates the                                                             
department would need $2.185 million the first year for a capital                                                               
expenditure, to build a separate, ten-bed death row facility.                                                                   
MS. KNUTH explained that other states' experience is that death row                                                             
inmates are a distinct population within a prison.  They have                                                                   
nothing to lose.  They present a special danger to other inmates                                                                
and to correctional officers, with a special risk for escape                                                                    
attempts.  It is not possible to keep death row inmates in the                                                                  
general prison population.  The special facility that would need to                                                             
be built would appropriately be at Spring Creek Correctional                                                                    
Center, the state's current maximum-security facility.  Additional                                                              
operating expenses for manning this facility are also reflected in                                                              
the fiscal note.                                                                                                                
MS. KNUTH said the DOC's budget has been cut by the House, by $3                                                                
million, this year.  [She later corrected this, clarifying that                                                                 
they had received $3 million less than they need.]  She told                                                                    
members, "One of the things that we do, in trying to evaluate how                                                               
to function with a decreased budget, is the first thing to go are                                                               
new initiatives; things that we have not started yet are not taken                                                              
on.  And that makes sense, that when you're trying to evaluate what                                                             
to do with finite resources, you have to honor your ongoing                                                                     
commitments in the first place.  And it seems inappropriate to the                                                              
Department of Corrections that when we're going to be short maybe                                                               
$3 million, for dealing with overcrowding and for trying to deal                                                                
with the existing population that we have, that we would incur a $2                                                             
million obligation to do something that we have not done in the                                                                 
state, since statehood. ... The timing is unfortunate."                                                                         
MS. KNUTH advised members that in ten years of testifying before                                                                
this committee, not once had she expressed a personal opinion on a                                                              
bill.  However, the subject of the death penalty is one that people                                                             
obviously have strong feelings about.  Noting that as a former                                                                  
prosecutor she has seen "horrible human beings," she recounted how                                                              
Tony Garcia (ph) in Juneau committed one of the most heinous                                                                    
offenses; he drove out in the Valley, randomly picked a household,                                                              
knocked on the door, and stabbed to death the person who answered                                                               
the door, with no provocation or justification.  She stated, "A                                                                 
despicable human being.  Nonetheless, I've got to tell you, if it's                                                             
wrong to kill, it's wrong to kill.  And all we do is reduce                                                                     
ourselves to the level of these offenders, if we take on this                                                                   
prerogative of saying, 'I'm going to make a value judgment on your                                                              
life, and I'm going to decide that it is appropriate, somehow, for                                                              
you to be killed. ... It's not a level that state government should                                                             
stoop to.  It would bring us down to their level, and I know we can                                                             
do other things with these offenders.  Tony Garcia is never going                                                               
to go anywhere, except maybe to Colorado, where he's wanted on                                                                  
multiple murder convictions, as well."                                                                                          
Number 0305                                                                                                                     
CHAIRMAN KOTT asked whether the Garcias of the world, who aren't                                                                
going anywhere, pose more of a threat, to society and the security                                                              
of those charged with looking after them, than those on death row.                                                              
He suggested that they have nothing to lose, either.                                                                            
MS. KNUTH replied, "There actually is something substantively                                                                   
different about facing death, the death penalty.  We do have a                                                                  
number of inmates in Alaska who are serving 99-, 300-, 400-year                                                                 
sentences.  And, in fact, I'll guarantee you that they were                                                                     
involved in the manufacture of the desks that you are sitting at                                                                
now.  Most of our correctional industries workers are convicted                                                                 
murderers who have these extremely long sentences.  And I've been                                                               
through Spring Creek.  I've been to the program there.  I've met                                                                
them.  And they're good workers. ... They're in there for the long                                                              
haul, and they're proud ... to have a useful activity.  And so,                                                                 
you've got different types of people.  Tony Garcia is not the type                                                              
of person I'm describing.  I mean, he really is a loathsome human                                                               
being.  But there is a group of murderers out there who are in                                                                  
their 50s, and even older now, who are making a contribution                                                                    
somehow.  And so, as is always true, there's a continuum of people                                                              
out there, and there'll be some who are like Tony Garcia, but                                                                   
that's the exception."                                                                                                          
Number 0393                                                                                                                     
CHAIRMAN KOTT referred to the DOC's fiscal note, which anticipates                                                              
construction of a ten-bed facility to house these death row                                                                     
inmates.  He asked whether the average appeals time for those on                                                                
death row is ten years, and whether some of those could extend                                                                  
beyond ten years.  He noted that if there were more than one                                                                    
capital case per year, there could be a need for additional beds.                                                               
MS. KNUTH replied, "You're quite right, and especially if we're to                                                              
consider that Alaska's population is predicted to continue                                                                      
increasing.  If we have just one capital case a year now, sooner or                                                             
later our population is going to double, and that, in itself, will                                                              
increase numbers."  She indicated the fiscal note assumes some                                                                  
degree of stability in the state.                                                                                               
CHAIRMAN KOTT asked, "Can you anticipate what we would do, in the                                                               
event that we had more on death row than we had the ability to                                                                  
accommodate?  Ship them out to Arizona?"                                                                                        
MS. KNUTH replied, "By the way, Mr. Chairman, Arizona won't take                                                                
our worst boys.  We have to keep them.  Private prisons don't want                                                              
the Tony Garcias.  They will not take them.  And that's something                                                               
we need to keep in the back of our minds when we're using private                                                               
prisons.  They do not want your maximum-security inmates.  They                                                                 
want 'mediums.' ... We would have to ... expand it somehow, and a                                                               
facility like this would have to be built so that it could be                                                                   
Number 0476                                                                                                                     
REPRESENTATIVE CROFT pointed out that the Public Defender Agency                                                                
had estimated two to three capital cases per year, whereas in                                                                   
constructing the ten-bed facility, the DOC estimated one bed per                                                                
year for the fiscal note.                                                                                                       
MS. KNUTH affirmed that, explaining that there is a significant                                                                 
difference between the number of cases tried and the number of                                                                  
convictions anticipated.                                                                                                        
REPRESENTATIVE CROFT asked whether, if Alaska had had a death                                                                   
penalty, Tony Garcia would have known that and therefore been                                                                   
MS. KNUTH responded, "As Mr. Campbell so eloquently testified                                                                   
yesterday, the more depraved the person, the less likely there is                                                               
any rational process going on.  And deterrence assumes a rational                                                               
thought process.  Deterrence works wonderfully for me.  I am                                                                    
personally never going to do something that places me in [the]                                                                  
prison population, because I don't want to be there.  But we've got                                                             
judgment-impaired people, and those are the ones who commit the                                                                 
worst offenses, and they have the least going on upstairs.  And we,                                                             
as a society, have never found an adequate way of dealing with                                                                  
Number 0546                                                                                                                     
REPRESENTATIVE GREEN asked whether there is any chance, in Ms.                                                                  
Knuth's estimation, that a judge may someday find a disparity                                                                   
between the treatment of those like Garcia and those like the men                                                               
who make furniture, ruling that it is somehow inequitable, although                                                             
both groups would be serving 99 years or more.                                                                                  
MS. KNUTH replied that departments of corrections are given fairly                                                              
broad latitude in evaluating the risk posed by inmates, and are                                                                 
expected to make individualized determinations. "So, I think not,"                                                              
she concluded.                                                                                                                  
Number 0638                                                                                                                     
REPRESENTATIVE ROKEBERG stated his understanding that the                                                                       
legislature had raised the DOC budget by $5 million this year, and                                                              
that perhaps it was the request that was $3 million less.                                                                       
MS. KNUTH replied, "We were underfunded $3 million from what we                                                                 
believe is essential to meet our current population.  But thank you                                                             
for the correction."                                                                                                            
REPRESENTATIVE ROKEBERG said he believes there was testimony before                                                             
the finance subcommittee, by the commissioner, that they've reached                                                             
a plateau on population growth.  He asked whether Ms. Knuth knows                                                               
if that is still holding up in the last month.                                                                                  
MS. KNUTH answered, "We are experiencing some growth, but not as                                                                
much as had been forecasted, say, a year ago.  And we're very                                                                   
fortunate in that regard.  But we are overexpense, overbudget; for                                                              
example, at Cook Inlet facility, we're holding more inmates there                                                               
than we have room for, because Anchorage is the service hub for                                                                 
medical services and items like that.  So, even though our total                                                                
population is being very cooperative with our budget crisis, we do                                                              
still have a problem."                                                                                                          
Number 0703                                                                                                                     
CHAIRMAN KOTT asked whether anyone else wished to testify, then                                                                 
closed public testimony.                                                                                                        
Number 0721                                                                                                                     
REPRESENTATIVE GREEN commented that this is the third death penalty                                                             
bill that he has seen in this committee over seven years.  He noted                                                             
that the general public sometimes doesn't have access to this much                                                              
detail, and polls often reflect how a question was asked.  In a                                                                 
poll in his own district, the initial question was asked:  Do you                                                               
favor the death penalty?  And 60 percent said yes.  However, when                                                               
asked whether they would favor it if they knew that the cost was                                                                
two and a half times as great, the same respondents changed their                                                               
answers, and the positive answers fell below 50 percent.  He                                                                    
pointed out that that doesn't go to the moral issue or the issue or                                                             
later proving that someone is innocent.  He also noted that Texas                                                               
is now reconsidering whether they should keep the death penalty.                                                                
Representative Green concluded by saying he has reservations about                                                              
even moving this from the committee.                                                                                            
Number 0874                                                                                                                     
CHAIRMAN KOTT asked the sponsor whether the intent is to try to                                                                 
convict and execute a 15-year-old for killing a 12-year-old.                                                                    
REPRESENTATIVE MASEK replied, "The intent of the bill was not to                                                                
put a 15-year-old to death.  It's for people that are over the age                                                              
of 18, for adults that prey upon children, and that being children                                                              
under the age of 18."                                                                                                           
CHAIRMAN KOTT noted that there had been discussion that Section 6                                                               
leads one to believe that those who committed a murder in the first                                                             
degree would fall within the purview of the bill, based on the                                                                  
aggravators.  He asked whether that is the intent.                                                                              
REPRESENTATIVE MASEK answered, "Well, the title is pretty                                                                       
restrictive, Mr. Chairman.  It says for murder of the child."  She                                                              
said that any other language therefore will not change what the                                                                 
title says.                                                                                                                     
CHAIRMAN KOTT maintained that there is a problem with that one                                                                  
section.  He pointed out that even the title says "An Act relating                                                              
to murder;" at the beginning.  He said he doesn't know if that is                                                               
the intent, to go that far.                                                                                                     
REPRESENTATIVE MASEK replied, "No, that isn't the intent.  It was                                                               
just for those that kidnap and assault and murder children."                                                                    
Number 1033                                                                                                                     
REPRESENTATIVE ROKEBERG said there seem to be technical problems                                                                
that need to be worked on.                                                                                                      
CHAIRMAN KOTT agreed, acknowledging that there are other issues, as                                                             
well.  He noted that testifiers the previous day had provided good                                                              
information, and that the committee had requested background                                                                    
information and studies from one family member who had testified,                                                               
as well as statistics from Barbara Brink regarding costs.  Chairman                                                             
Kott said although this committee is not charged with the financial                                                             
aspects, the bill certainly does have costs associated with the DOC                                                             
and the judiciary that should be addressed.  He said he wants to                                                                
work with the drafter regarding the intent.                                                                                     
CHAIRMAN KOTT assigned HB 75 to a subcommittee, to be chaired by                                                                
Representative Green.  Also on the subcommittee would be                                                                        
Representatives James and Croft.  He asked them to try to iron out                                                              
the difficulties with the legal side, after which they perhaps                                                                  
could discuss other issues.                                                                                                     
REPRESENTATIVE GREEN asked whether they could seek outside                                                                      
expertise on legal issues.                                                                                                      
CHAIRMAN KOTT agreed to that, emphasizing the need to start with                                                                
something that clearly is indicative of the will of the sponsor.                                                                
[HB 75 was held over.]                                                                                                          
Number 1300                                                                                                                     
CHAIRMAN KOTT called an at-ease at 2:39 p.m.; he called the meeting                                                             
back to order at 2:40 p.m.                                                                                                      
HB 67 - BAIL HEARING FOR SEX OFFENDERS                                                                                          
CHAIRMAN KOTT announced that the next item of business would be                                                                 
House Bill No. 67, "An Act relating to release of certain persons                                                               
alleged to have committed certain sexual offenses."  He noted that                                                              
it had been heard by the committee previously.                                                                                  
Number 1327                                                                                                                     
REPRESENTATIVE NORMAN ROKEBERG, sponsor, referred to a new proposed                                                             
committee substitute, Version I [l-LS0197\I, Luckhaupt, 3/12/99],                                                               
which was subsequently distributed.                                                                                             
Number 1379                                                                                                                     
JANET SEITZ, Legislative Assistant to Representative Norman                                                                     
Rokeberg, Alaska State Legislature, came forward to explain the                                                                 
changes.  Instead of the plan envisioned in the original bill,                                                                  
Version I is similar to a judge's release in domestic violence                                                                  
cases.  It adds a new section to cover all sexual assaults, not                                                                 
just those against children.  It also permits the judge to impose                                                               
additional conditions on a person charged or convicted of these                                                                 
crimes, concerning having no contact with the alleged victim,                                                                   
residing in a place where there is no likelihood of coming in                                                                   
contact with the victim, and taking medication as prescribed.                                                                   
MS. SEITZ explained that the victim is currently notified of the                                                                
bail hearing, but there is no inquiry by the judicial officer to                                                                
see whether the victim actually got the notice; this was where the                                                              
system had broken down in Representative Rokeberg's constituent's                                                               
case.  Under this bill, before a person who is charged or convicted                                                             
of one of these crimes is released, the judicial officer is                                                                     
required to ask the victim, or the victim's representative, about                                                               
the notice.  The judicial officer is also to inquire whether the                                                                
victim or the victim's representative is in court and wishes to                                                                 
testify; testifying is not mandatory, however.  Ms. Seitz noted                                                                 
that they had worked with Anne Carpeneti of the Department of Law                                                               
and Doug Wooliver of the Alaska Court System, both of whom had                                                                  
suggested changes that are in Version I.                                                                                        
Number 1502                                                                                                                     
DOUG WOOLIVER, Administrative Attorney, Office of the                                                                           
Administrative Director, Alaska Court System, noted that one                                                                    
previous concern was that a judge might be precluded from releasing                                                             
a defendant on bail if the Department of Law was unable to notify                                                               
the victim, for whatever reason.  This requires the judge to make                                                               
the inquiry.  However, if reasonable efforts have been made, but to                                                             
no avail, the process can continue.  That had been their main                                                                   
concern, Mr. Wooliver said, and has been addressed in this version.                                                             
Number 1542                                                                                                                     
REPRESENTATIVE GREEN asked whether the changes in Version I are                                                                 
procedural, then, rather than addressing changes in the penalties.                                                              
MR. WOOLIVER affirmed that.                                                                                                     
Number 1573                                                                                                                     
REPRESENTATIVE JAMES made a motion to adopt Version I as the                                                                    
working draft.  There being no objection, it was so ordered.                                                                    
Number 1600                                                                                                                     
REPRESENTATIVE ROKEBERG complimented his staff on working closely                                                               
with the department and the court system to overcome problems                                                                   
without creating a burden on the court system and to result in a                                                                
zero fiscal note.  He pointed out that  Mr. Wooliver has contacted                                                              
a number of sitting judges to see how this would work as a                                                                      
practical matter.  Upon Mr. Wooliver's counsel, they have elevated                                                              
the rights of the victims to make sure that if there are unique                                                                 
circumstances, judges can take up 24-hour supervision, if                                                                       
appropriate.  However, they have removed the penalty provisions, to                                                             
give the judges discretion.                                                                                                     
Number 1691                                                                                                                     
REPRESENTATIVE JAMES made a motion to move Version I [l-LS0197\I,                                                               
Luckhaupt, 3/12/99], out of committee with individual                                                                           
recommendations and the attached zero fiscal note.  There being no                                                              
objection, CSHB 67(JUD) moved out of the House Judiciary Standing                                                               
HB 176 - PUBLIC INTEREST LITIGANTS                                                                                              
CHAIRMAN KOTT announced that the next item of business would be                                                                 
House Bill No. 176, "An Act relating to attorney fees and costs and                                                             
the granting of public interest litigant status in proceedings                                                                  
related to administrative actions and inactions; and amending Rules                                                             
79 and 82, Alaska Rules of Civil Procedure, and Rule 508, Alaska                                                                
Rules of Appellate Procedure."  Present to explain the bill and                                                                 
answer questions were Jeff Logan and Kevin Jardell, staff to                                                                    
Representative Green.                                                                                                           
Number 1786                                                                                                                     
JEFFREY LOGAN, Legislative Assistant to Representative Joe Green,                                                               
Alaska State Legislature, spoke on behalf of the sponsor, saying HB
176 is designed to "take the 'kick me' sign off of our backs."                                                                  
Noting Alaska's resource development economy, he said the state                                                                 
leases, sells, rents or somehow disposes of its resources, and then                                                             
collects a royalty, rent, tax, fee or other form of payment to fund                                                             
government services.  To protect the public interest, the                                                                       
legislature has spelled out a process that is carried out by the                                                                
Administration.  There are three stages of notice; integrated                                                                   
throughout are opportunities for extensive public involvement.  The                                                             
people who carry out this process are almost always people with                                                                 
impressive academic credentials, experience in their fields, and                                                                
dedication to public service, he said.  There is a clear process,                                                               
carried out by competent people.  But if a member of the public                                                                 
opposes an agency action or inaction, there is yet another                                                                      
opportunity to express that opposition:  the administrative appeals                                                             
process.  Failing that, a person can appeal to the courts.  Mr.                                                                 
Logan stated:                                                                                                                   
     Mr. Chairman, some people who oppose the development of our                                                                
     resources, and whose arguments don't win the day in this                                                                   
     extensive public process, choose this final category,                                                                      
     litigation in the courts, in an attempt to circumvent your                                                                 
     policy and the executive branch's application of it.  And                                                                  
     that's okay, Mr. Chairman.  House Bill 176 doesn't address the                                                             
     process, or those people's right to access the court system.                                                               
     What House Bill 176 does address is that under a doctrine                                                                  
     established by the court, these people are getting paid by the                                                             
     state to sue the state; and that doctrine is called the Public                                                             
     Interest Litigant Doctrine.  The court has said that some                                                                  
     litigation is so important, [to] not just the parties bringing                                                             
     the action but to the public at large, that the public at                                                                  
     large should ... foot the bill for the legal expenses, because                                                             
     the public at large will benefit from the resolution of the                                                                
     question at hand.  And there is probably some merit to that,                                                               
     if it worked that way.                                                                                                     
     Unfortunately, the court has seen fit to allow the people of                                                               
     Alaska to foot the bill for other, smaller, more specific                                                                  
     questions before the court.  House Bill 176 is a proposal to                                                               
     change state policy, to go from getting sued and paying the                                                                
     plaintiffs to sue us, to getting sued and letting them pay for                                                             
     their own legal expenses, in essence, taking the "kick me"                                                                 
     sign off of our backs.                                                                                                     
MR. LOGAN indicated he had a lot more material, then deferred to                                                                
testifiers on teleconference.                                                                                                   
Number 2172                                                                                                                     
WILLIAM GREENE, Deputy Municipal Attorney, Municipality of                                                                      
Anchorage, testified via teleconference from Anchorage that HB 176                                                              
is a step in the right direction.  However, political subdivisions                                                              
have similar problems, and the municipality would appreciate having                                                             
the burden of public interest litigant fees included under the                                                                  
coverage of HB 176.  He referred briefly to SB 123, then indicated                                                              
the municipality has found, in its experience in the courts, the                                                                
very liberal awarding of public interest litigant fees and the                                                                  
determination of who is a public interest litigant.                                                                             
MR. GREENE said in cases involving state statute, the constitution,                                                             
or municipal law, the administrative or executive official making                                                               
the decision is limited by what the law states to a greater extent                                                              
than the courts are limited, he said.  Accordingly, they run into                                                               
cases frequently in which, under the existing statutory or                                                                      
ordinance law, the decision was correct but the courts overrode                                                                 
that judgment and made the plaintiff or the appellant a public                                                                  
interest litigant.  The municipality ends up paying 100 percent of                                                              
the actual reasonable attorneys fees of the other side; in this                                                                 
context, there is a great deal of leeway in determining what is                                                                 
reasonable.  Under Civil Rule 82, the court has wide discretion to                                                              
deviate from the schedules; at least in theory it could grant full                                                              
actual attorneys fees.                                                                                                          
TAPE 99-33, SIDE A                                                                                                              
Number 0001                                                                                                                     
MR. GREENE, in response to a question of Representative Rokeberg,                                                               
said in one instance the municipality prevailed in supporting the                                                               
ruling of its administrative official, and one minor matter ended                                                               
up being an advisory matter.  The municipality is in the process of                                                             
litigating whether or not the plaintiff will obtain full public                                                                 
interest litigant status on a relatively minor issue, because the                                                               
courts generally will not apportion fees between issues.                                                                        
MR. GREENE told members that in a second case, the administrative                                                               
official followed the ordinance, the state statutes and the                                                                     
constitution, but is limited in the degree to which the official                                                                
may amend an initiative ballot proposition, whereas the court has                                                               
some additional powers that allowed it to make some changes in                                                                  
language in the petition statement itself.  Those are two instances                                                             
in which the municipality faces a real prospect, they believe, of                                                               
paying full actual attorneys fees, in cases where the municipality                                                              
was, at least in part, correct.  And in another instance where the                                                              
controlling issue in the case was answered by the court in the                                                                  
municipality's favor, they are still looking at the potential of                                                                
substantial fees.  Mr. Greene offered to provide further examples                                                               
in writing.                                                                                                                     
Number 0234                                                                                                                     
STEVE WILLIAMS, Attorney at Law, testified at length via                                                                        
teleconference from Anchorage, noting that he has been an attorney                                                              
in Fairbanks and Anchorage for 21 years, mostly representing civil                                                              
commercial clients, although he does some public interest                                                                       
litigation.  He stated, "I'm here because I believe that this bill                                                              
is a bad policy and, frankly, bad politics."  He told members:                                                                  
     One thing I think that needs to be made clear is that the                                                                  
     state is not paying people to sue them.  What they are doing                                                               
     is ... if - at the end of the litigation, often several years                                                              
     out after a lawsuit is filed - the judiciary determines that                                                               
     the state acted unconstitutionally or unlawfully, then the                                                                 
     party is entitled to reasonable attorneys fees under the                                                                   
     public interest ... litigant standard.                                                                                     
     Secondly, with respect to Mr. Greene's testimony, I can fully                                                              
     understand that the municipality would want in on this being                                                               
     let off the hook for fees where they've acted unlawfully.  No                                                              
     executive likes to be sued and called to task for acting                                                                   
     unlawfully or unconstitutionally.                                                                                          
     But I think that the key point that I want to make here is                                                                 
     that our society - our democratic society - is founded on the                                                              
     rule of law; and that's a principal distinction between our                                                                
     democracy and other places such as Stalinist Russia, "banana                                                               
     republics," or modern-day Kosovos.  Now, I'm not saying Alaska                                                             
     is like that.  But the principle is that the executive branch                                                              
     of government must act lawfully and constitutionally, not                                                                  
     arbitrarily, and is subject to review and restraint by an                                                                  
     independent judiciary.  This principle is recognized as                                                                    
     essential for emerging (indisc.) democracies around the world,                                                             
     to protect the freedom and the rights of all citizens.                                                                     
     The public interest attorneys fees doctrine, which has been                                                                
     recognized in Alaska for about 25 years, has as its purpose to                                                             
     encourage private citizens to raise issues of public interest                                                              
     where officials may be acting in an unlawful or                                                                            
     unconstitutional way, acting as a private attorney general to                                                              
     vindicate the public interest and the rule of law.  By                                                                     
     definition, ... under current law, a person is a public                                                                    
     interest litigant only if the case is designed to effectuate                                                               
     strong public policies; if the plaintiff succeeds, numerous                                                                
     people receive benefits from that success - numerous members                                                               
     of the public; that only a private party could reasonably have                                                             
     been expected to bring the suit; and that the purported public                                                             
     interest litigant did not have a substantial, sufficient                                                                   
     economic incentive to file the suit, but was instead primarily                                                             
     motivated to bring it by desire to raise and have decided                                                                  
     issues of significant public policy and legal importance.                                                                  
     ... Currently, the successful public interest litigant is one                                                              
     who's prevailed, who's obtained a judicial determination that                                                              
     a public official's conduct was unlawful, is entitled to a                                                                 
     full reasonable fee ... for work devoted to pursuing that                                                                  
     determination.  However, the court is required to reduce the                                                               
     fee if the hourly rate is excessive, the total hours are                                                                   
     unreasonable, or if the party has unreasonably asserted issues                                                             
     which are frivolous or were asserted in bad faith.                                                                         
     Furthermore, under current law ... a public interest litigant                                                              
     is not liable to a public defendant for an award of attorneys                                                              
     fees if the court does not rule in the public interest                                                                     
     litigant's favor.  The reason for that rule is to eliminate                                                                
     the substantial disincentive [that] would be presented to                                                                  
     citizens bringing cases of significant public interest.  Few                                                               
     people can afford to sue the government and face the risk of                                                               
     having to pay substantial attorneys fees awards, in cases                                                                  
     where they have no significant economic interests but merely                                                               
     are wanting to vindicate the public interest and the rule of                                                               
     HB 176 would eliminate these long-established public interest                                                              
     principles in all cases where a public interest litigant                                                                   
     challenges action by the executive branch of state government.                                                             
     It would treat public interest litigants as the same as those                                                              
     who are motivated purely by financial incentive to sue, and,                                                               
     therefore, add an economic interest in incurring the costs                                                                 
     and risks of litigation.  It would thus dramatically reduce                                                                
     the incentive to bring public interest cases, where state                                                                  
     officials are, in fact, acting in a way which is unlawful or                                                               
     Instead of allowing a successful litigant to recover full                                                                  
     reasonable fees for vindicating the public interest in having                                                              
     the executive branch - which, as we all know, at this point is                                                             
     the Knowles Administration - acting ... lawfully and                                                                       
     constitutionally, it would allow the recovery of only 20 to 30                                                             
     percent of those fees.  And since most public interest fees                                                                
     are matters of law and ... decided by summary judgment, it                                                                 
     would, in most cases, limit recovery to 20 percent of the                                                                  
     actual reasonable fees incurred in the case.                                                                               
     And I would submit that, with respect to private attorneys in                                                              
     Alaska, many of whom work by themselves or in relatively small                                                             
     firms, very few Alaskan lawyers could take on a public                                                                     
     interest case if, in the end - ... after perhaps three or four                                                             
     years of litigation - they would be permitted to recover only                                                              
     20 percent of their actual fees for work on the case.  Those                                                               
     of you on the committee who are attorneys, or who have worked                                                              
     ... in the law business, know that that percentage of a fee                                                                
     would not even cover the overhead for most law firms, which                                                                
     generally ranges somewhere around 30 to 40 percent ... of                                                                  
     Moreover, by exposing public interest litigants to the risk of                                                             
     facing award of fees, should the court not agree with their                                                                
     legal challenge to the state executive's conduct, HB 176 will                                                              
     clearly and dramatically ... deter such challenges from being                                                              
     brought.  The average citizen would face bankruptcy, were he                                                               
     or she not to prevail on a public interest case, and be                                                                    
     subjected to a substantial fee award.                                                                                      
Number 0670                                                                                                                     
     Now, I understand from talking to several folks, and it was                                                                
     reaffirmed by [Representative] Green's staffer, that this bill                                                             
     is apparently a reaction to certain public interest lawsuits,                                                              
     with which ... some legislators disagree, or which they view                                                               
     to be a nuisance, particularly in the natural resources area.                                                              
     However, it is just a reaction, in the sense that this law                                                                 
     would affect all public interest litigants.                                                                                
     Alaska's public interest fee doctrine is not partisan.  It                                                                 
     protects the rights of all Alaskans, of all political and                                                                  
     philosophical persuasions, to litigate issues of substantial                                                               
     public interest.  In fact, to the extent this ... bill                                                                     
     purports to be a, quote, "conservative political reaction" is                                                              
     insulting to conservative principles.  ...                                                                                 
MR. WILLIAMS offered as proof the following discussion of reported                                                              
cases on public interest litigation:                                                                                            
     Those cases involving the administration of state laws ... in                                                              
     which a litigant has been found to be a public interest                                                                    
     litigant included [a] considerable number of cases involving                                                               
     political candidates or officeholders challenging election                                                                 
     conduct; cases contesting the conduct and result of state                                                                  
     elections; cases challenging state reapportionment schemes;                                                                
     cases challenging fish and game regulatory statutes, or fish                                                               
     and game enforcement or interpretation of them, where the                                                                  
     litigant relies on fish or game resources for personal, ...                                                                
     rather than commercial, use, or where the litigation is                                                                    
     principally designed to implement the public interest; cases                                                               
     challenging the state's public school ... funding formula                                                                  
     laws, in the way that they discriminate between REAA [Rural                                                                
     Education Attendance Area] and non-REAA schools; cases                                                                     
     challenging regulations concerning the use of boats on the                                                                 
     Kenai River; challenges to the Local Boundary Commission                                                                   
     decisions concerning incorporation of municipalities;                                                                      
     challenges to the implied powers of government concerning                                                                  
     state rights-of-way.                                                                                                       
     And I think that these cases - and there are many more which                                                               
     don't involve ... the state administration, but which involve                                                              
     local government - these cases, if you review them fairly,                                                                 
     make it clear that the public interest litigation doctrine is                                                              
     not, one, a doctrine which is merely about, quote, "liberal                                                                
     groups" or "environmental groups" or even "civil liberties                                                                 
     groups."  It's a doctrine which protects the rights of us all,                                                             
     and protects the rights of people of all philosophical and                                                                 
     political persuasions to seek to vindicate the rule of law.                                                                
     The only other comment I would make is that, in fact, what                                                                 
     this law will do is deter any private attorneys from taking                                                                
     public interest cases brought by individual citizens.  In                                                                  
     fact, the concern of some members of the legislature, and of                                                               
     this committee, as expressed by Representative Green's aide,                                                               
     is to somehow deter environmental organizations and law firms                                                              
     from bringing lawsuits challenging natural resource decisions                                                              
     by the state executive.                                                                                                    
     I would suggest that this bill will not do that, mainly                                                                    
     because that is what those groups exist to do.  At most, this                                                              
     bill will somewhat reduce their income from this particular                                                                
     source, which they might get, again, if they were right, and                                                               
     if they won the case - in other words, if their view of the                                                                
     law was correct, ... at the end of a lawsuit.  But, in fact,                                                               
     those kinds of interest groups are out there and established                                                               
     specifically to litigate these issues.  So, I don't think that                                                             
     this is going to be a deterrent to those sorts of interests                                                                
     being asserted in litigation against the state executive.                                                                  
     Instead, it's going to be a deterrent against people who                                                                   
     aren't a part of organized environmental groups or other                                                                   
     organized groups, who may not have an organization ... with a                                                              
     few staff attorneys who ... are capable of bringing cases.  It                                                             
     will, in fact, deter people who go to lawyers like me and say,                                                             
     "I think that I was not treated fairly," or "I think that the                                                              
     state government is acting unlawfully; will you help me?"  And                                                             
     I'd have to look at that people and say, "I really want to.                                                                
     I care about this.  But you have to understand that I can't                                                                
     afford to take a case on where, even if we're right, and even                                                              
     if we get paid some fee three years from now, or four years                                                                
     from now, it will only be 20 percent of what I actually put                                                                
     into the case, which won't even be enough to cover my                                                                      
     So, in conclusion, I just think that ... there's no doubt that                                                             
     this bill will seriously reduce the power of Alaskans of all                                                               
     political persuasions to ensure that the executive branch of                                                               
     their government - the Knowles Administration, for at least                                                                
     the next three and a half years - conducts itself in a way                                                                 
     which is lawful, consistent with the laws passed by this                                                                   
     legislature, and constitutional.  Simply put, the bill will                                                                
     erode the rule of law in Alaska, and I would urge the                                                                      
     committee not to pass it out.                                                                                              
Number 1002                                                                                                                     
KEVIN JARDELL, Legislative Assistant to Representative Joe Green,                                                               
Alaska State Legislature, responded that he takes some exception to                                                             
the loose analogy to Kosovo and "banana republic" countries,                                                                    
although he realizes it was to make a point.  He then reminded                                                                  
members that neither the federal system nor any other state system,                                                             
to his knowledge, has such a broad doctrine.  He stated:                                                                        
     I don't think, if the doctrine is eliminated or is defined in                                                              
     some other way, that we would see an all-out destruction of                                                                
     the rule of law by any means, or even an erosion of the rule                                                               
     of law.  Throughout this state's history, we've had people                                                                 
     stand up and take it upon themselves to challenge actions by                                                               
     municipalities, the state; and we're not saying that they                                                                  
     can't do that now.  In fact, in the state of Alaska we have a                                                              
     system, under Rule 82, that pays a portion of their fees if                                                                
     they do, in fact, win and are considered the prevailing party.                                                             
     This just eliminates the doctrine, or will redefine the                                                                    
     doctrine, in a way, that some policymakers believe brings it                                                               
     more in line with what they feel [it] should be.                                                                           
     Some of the problems that we see have been brought out by the                                                              
     Administration, in its arguments in cases, when it argues that                                                             
     the courts have reimbursed public interest litigants for                                                                   
     legislative lobbying costs.  The courts have allowed public                                                                
     interest litigant status to be awarded to groups and                                                                       
     individuals that are seeking policy agendas, and not                                                                       
     necessarily in the public interest. ...                                                                                    
     The question the Administration posed to the court was:  What                                                              
     amount should the Alaska Center for the Environment be awarded                                                             
     as an accidental beneficiary of an unfortunately drafted                                                                   
     settlement agreement, the fatal deficiencies (indisc.) which                                                               
     were established by others?  This is a case where ACE won                                                                  
     approximately three out of eleven claims.  The court decided                                                               
     that even those three weren't significant.  The superior court                                                             
     said, "We won't give you any fees."  The supreme court                                                                     
     remanded the case and said, "Not only will you pay them fees,                                                              
     but you'll pay them $456,000."  That's the type of abuse of                                                                
     the policy that we [have] recognized, and that we are trying                                                               
     to remedy.                                                                                                                 
     Now, whether there are other solutions, other considerations                                                               
     that can be brought up -- I know the sponsor is always open to                                                             
     suggestions.  The municipality has raised some points that                                                                 
     they would like to bring up, apparently, and ... the sponsor                                                               
     would be more than happy to listen to those suggestions.  But                                                              
     there is a problem, and it needs to be addressed.  And this is                                                             
     an attempt to address that problem.                                                                                        
CHAIRMAN KOTT asked whether Mr. Williams wished to reply briefly.                                                               
Number 1211                                                                                                                     
MR. WILLIAMS responded that, first, he was obviously not comparing                                                              
Governor Knowles to [Yugoslav President] Milosevic.  He himself                                                                 
believes that the conduct of the government is subject to review by                                                             
the judiciary, and there is no doubt that the ability of people to                                                              
obtain judicial review of executive conduct will be diminished                                                                  
here.  Second, he agrees with Mr. Jardell that most other states                                                                
don't provide for attorneys fees, except in certain statutorily                                                                 
provided situations.  In fact, very few other states provide for an                                                             
award of attorneys fees against the losing party, period.  It is,                                                               
therefore, a two-edged sword.  He believes that HB 176 will provide                                                             
a substantial disincentive to people bringing public interest                                                                   
cases, although probably not to some organizations that exist for                                                               
this very purpose.                                                                                                              
Number 1318                                                                                                                     
LAUREE HUGONIN, Director, Alaska Network on Domestic Violence and                                                               
Sexual Assault, came forward.  She told members that unfortunately                                                              
the network had entered into litigation as a public interest                                                                    
litigant after passage of the domestic violence prevention and                                                                  
victim protection Act of 1996.  It was a case against the court                                                                 
system, which had refused to recognize the three separate types of                                                              
protective orders that the legislature had made provision for in                                                                
the Act; through court forms, only two kinds of protective orders                                                               
were available.                                                                                                                 
MS. HUGONIN explained, "We tried to work with their forms                                                                       
committee.  We tried to work with Mr. Snowden, who was the                                                                      
administrator at the time.  We tried to intervene through talks                                                                 
with the Administration, talking to the court system.  Then                                                                     
Representative Parnell also tried to work with the court system to                                                              
remedy this short of litigation.  And we were not successful in any                                                             
of our attempts to do so.  And so, we believe strongly enough that                                                              
victims were being put at risk, by not being able to ... avail                                                                  
themselves of this remedy that the legislature had provided, that                                                               
we did enter into litigation against the court system."                                                                         
MS. HUGONIN noted that they had been successful in that litigation,                                                             
winning on all issues.  They tried to reduce costs, she said, and                                                               
they sold T-shirts and sweatshirts.    They are a small                                                                         
organization that is lucky if it has $10,000 in the bank.  Although                                                             
only about two-thirds of their attorneys fees were awarded to them,                                                             
the ability to collect those attorneys fees helped them to stay a                                                               
viable entity.  She understands that the concern is of maybe a                                                                  
bigger proportion in terms of money that the state has to return to                                                             
programs.  However, it affects little programs, as well - and on                                                                
matters of life and death.                                                                                                      
MS. HUGONIN said as she reads them, HB 176 differs from the Senate                                                              
bill in that it applies to executive branch actions.  Although                                                                  
their particular case against the judicial branch may not fall                                                                  
within the scope of this bill, there could be occasions where they                                                              
need to litigate against the Administration, if the Administration                                                              
chooses to not follow a policy meant for the protection of victims,                                                             
for example, and is, in fact, endangering them.  Ms. Hugonin                                                                    
expressed hope that some consideration would be given to narrowing                                                              
the scope or, for a prevailing party, allowing the court to                                                                     
continue to have discretion in the amount of the attorneys fees                                                                 
awarded.  Noting that their case was the first time her                                                                         
organization had to be a public interest litigant, she said she                                                                 
hopes it is the last.  "But we would like to be able to avail                                                                   
ourselves of that, if it became necessary again," she concluded.                                                                
Number 1515                                                                                                                     
REPRESENTATIVE GREEN asked whether that two-thirds was awarded                                                                  
because of being a public interest litigant or because of being the                                                             
victorious party.                                                                                                               
MS. HUGONIN replied that she believes it was for both reasons.                                                                  
REPRESENTATIVE GREEN asked whether she believes they would have                                                                 
been awarded no fees if they hadn't applied as a public interest                                                                
MS. HUGONIN said she wasn't sure, as she is not an attorney.                                                                    
Number 1617                                                                                                                     
MR. JARDELL, who is an attorney, clarified that under Rule 82 the                                                               
court can award more than the 30 percent or 20 percent that is                                                                  
given in section (b), and factors are set out for the courts to                                                                 
look at.  Even under Rule 82, therefore, the court could always                                                                 
come back, for whatever reason deemed necessary, and award whatever                                                             
it believes to be adequate.                                                                                                     
Number 1714                                                                                                                     
REPRESENTATIVE ROKEBERG asked whether it is a fair analysis that                                                                
the legislature, rather than the court system, makes the laws, and                                                              
that in this case the courts clearly have usurped the lawmaking                                                                 
ability of the legislature.                                                                                                     
MR. JARDELL answered that if one goes far enough back, to common                                                                
law, the courts set all law.  It has evolved from that to more of                                                               
a civil law, to where we now codify almost everything.  Reserved in                                                             
the common law is the concept that if the legislature hasn't spoken                                                             
to it, the courts can create it.  Therefore, until the legislature                                                              
speaks to it, the courts can create a doctrine.                                                                                 
REPRESENTATIVE ROKEBERG asked whether the legislature couldn't                                                                  
repeal any public interest doctrine or principles, and restrict the                                                             
court from applying them.                                                                                                       
MR. JARDELL replied, "Absolutely."                                                                                              
REPRESENTATIVE ROKEBERG thanked Representative Green for                                                                        
introducing HB 176, saying it is one of the best bills he has seen                                                              
this session, including his own.  He disagreed with Mr. Williams                                                                
that this would erode the rule of law, then stated, "I'd say the                                                                
existence of this is making scofflaws of people who intentionally                                                               
litigate for the very purpose of filling their own coffers and                                                                  
pursuing agendas, and of taking advantage of this, to the degree                                                                
that it's stifled development and cost literally thousands of jobs                                                              
in this state.  And it's the most frustrating thing I've witnesses                                                              
here for the last 50 years of my life, the development of this type                                                             
of thing."                                                                                                                      
Number 1786                                                                                                                     
CHAIRMAN KOTT referred to Mr. Greene's suggestion that HB 176 be                                                                
extended to apply to municipalities.  He asked whether that had                                                                 
been given any thought.                                                                                                         
MR. JARDELL affirmed that, then added, "We didn't have any good                                                                 
communications with the municipality, and weren't aware of exactly                                                              
what type of problem existed there.  We were working under a rough                                                              
assumption that they may see more of ... causes of action that ...                                                              
may be in the realm where the policy makers here believe it should                                                              
be a sole individual standing up for zoning problems against the                                                                
municipality, and not really running into the same problems that                                                                
the state does.  We work with the state, so we're more aware of the                                                             
state's problems."  Mr. Jardell said they would contact Mr. Greene                                                              
and work with him; if there is a need to extend this to                                                                         
municipalities, and a way to do that, then the sponsor's office                                                                 
will see whether it can be done.                                                                                                
Number 1848                                                                                                                     
REPRESENTATIVE KERTTULA pointed out that courts create the rule of                                                              
law along with the legislature.                                                                                                 
REPRESENTATIVE ROKEBERG responded, "I don't disagree with                                                                       
Representative Kerttula; I just think we're in the constitutionally                                                             
superior position."  He then asked whether there is a potential                                                                 
here to distinguish between natural resource or development                                                                     
activities and other grievances, without running afoul of                                                                       
constitutional fairness mandates, for example.                                                                                  
Number 1903                                                                                                                     
MR. JARDELL replied that the federal method and most states'                                                                    
methods are to determine specific causes of action, such as                                                                     
election laws, and make a determination that election laws are an                                                               
area that they want to encourage people to challenge, for instance,                                                             
as a foundation of democracy; therefore, they will allow full                                                                   
reasonable attorneys fees as an exception to that cause of action.                                                              
However, it is very difficult to develop each and every cause of                                                                
action that could come up.  It is also difficult to try to come up                                                              
with a balance for the carrot and the stick, without having a                                                                   
doctrine like we do now.                                                                                                        
REPRESENTATIVE KERTTULA responded that therein lies the problem.                                                                
They would foreclose a whole range of public interest litigation,                                                               
including civil rights cases, public information matters or those                                                               
raised by Ms. Hugonin, for example, not just that involving natural                                                             
REPRESENTATIVE ROKEBERG said he takes exception, asking whether the                                                             
issue is now paying Mr. Williams' overhead.  He commented that                                                                  
members of the bar have an obligation to look out for people whose                                                              
rights are being stepped on, and who don't have the resources to                                                                
come forward.  He said he believes the current situation is being                                                               
MR. JARDELL addressed Representative Kerttula's comment, saying                                                                 
that the exception mentioned earlier in Rule 82 would still provide                                                             
the courts a remedy for those situations that aren't being abusive,                                                             
and which truly merit a greater award of attorneys fees than the 30                                                             
percent or 20 percent.                                                                                                          
Number 2054                                                                                                                     
MR. LOGAN referred to the 1990 Alaska Supreme Court opinion                                                                     
provided in committee packets regarding Anchorage Daily News v.                                                                 
Anchorage School District.  He clarified that although that is the                                                              
case where the court enumerated the four standards that must be met                                                             
in order to be considered a public interest litigant, that was a                                                                
case where the plaintiff was a subsidiary of a large newspaper                                                                  
corporation.  It isn't always an indigent organizations that is                                                                 
granted public interest litigation status, he pointed out.                                                                      
Number 2089                                                                                                                     
MS. HUGONIN expressed her understanding that one reason why her                                                                 
organization became a public interest litigant was because it                                                                   
needed standing in order to appear in court.  Part of what HB 176                                                               
does is remove the notion of public interest litigant or doctrine.                                                              
She asked the committee to consider still allowing these litigants                                                              
to have standing in court, to continue to bring these matters                                                                   
forward, aside from the issue of attorney fees.                                                                                 
Number 2158                                                                                                                     
MR. JARDELL pointed out that standing is a completely different                                                                 
issue from attorneys fees, and this would have no affect,                                                                       
whatsoever, on the ability of one person or another to obtain                                                                   
REPRESENTATIVE ROKEBERG said he is aware of a part-time fisherman                                                               
in Haines with standing enough to bring down and stop any                                                                       
development anywhere in the state of Alaska, in terms of the                                                                    
practical application of the Alaska courts.                                                                                     
MR. JARDELL stated, "Even with public interest litigants, when                                                                  
there's a group the courts still look to the members of the group                                                               
to see if the members having standing, so that the group will have                                                              
standing.  And so, whether you're claiming to be a public interest                                                              
litigant or not, you're still going to have to have an individual                                                               
standing classification, some injury, in fact.  So, this really                                                                 
would not have any effect on a person's ability to get so-called                                                                
Number 2231                                                                                                                     
CHAIRMAN KOTT asked whether there were further questions or                                                                     
testifiers, then closed public testimony.                                                                                       
Number 2247                                                                                                                     
REPRESENTATIVE KERTTULA told members she would like to be sure on                                                               
the issue of standing, as she doesn't want to change the statute on                                                             
that.  Second, she would like to show the committee the kinds of                                                                
cases that get these awards.  These are people who have won their                                                               
cases, which is why they are getting the awards, she noted.                                                                     
REPRESENTATIVE ROKEBERG agreed that would be great information,                                                                 
stating his understanding that with resource cases, it is "merely                                                               
technical, minor provisions that allow 100 percent awards, and it                                                               
stops development for five years."                                                                                              
REPRESENTATIVE KERTTULA responded that those aren't the cases she                                                               
has seen.                                                                                                                       
CHAIRMAN KOTT agreed that these are valid concerns.  He indicated                                                               
he looked forward to hearing from Representative Kerttula regarding                                                             
standing and the types of cases, at the next hearing on the bill.                                                               
He concluded by announcing that HB 176 would be held over.                                                                      
HJR 30 - CONST. AM: REPEAL BUDGET RESERVE FUND                                                                                  
CHAIRMAN KOTT announced that the final item of business would be                                                                
House Joint Resolution No. 30, proposing amendments to the                                                                      
Constitution of the State of Alaska repealing provisions relating                                                               
to the constitutional budget reserve fund and providing that the                                                                
balance in the fund be deposited into the budget reserve fund                                                                   
established by statute.  There was no longer a quorum, and Chairman                                                             
Kott advised listeners that there would be only an opening                                                                      
Number 2336                                                                                                                     
BARBARA COTTING, Legislative Assistant to Representative Jeannette                                                              
James, Alaska State Legislature, explained on behalf of the sponsor                                                             
that HJR 30 simply proposes a constitutional amendment to do away                                                               
with the constitutional budget reserve (CBR) fund; where the money                                                              
would go is up to the committee.  She referred members to a fiscal                                                              
note to cover the Official Election Pamphlet, and to the sponsor                                                                
statement, which contained a history of how the CBR started and why                                                             
it appears to have outlived its usefulness.  Created to keep the                                                                
legislature from spending more money, the CBR has had the opposite                                                              
effect, she said.  It complicates the budget process and creates                                                                
dissent between the minority and majority at budget time.                                                                       
Therefore, Representative James believes it should be repealed.  A                                                              
lot of plans are coming out regarding use of the CBR money.  As HJR
30 stands, the money would go into a "long-established budget                                                                   
reserve fund in statute," but Representative James is not set on                                                                
that idea.  It could go anywhere that it earns a good amount of                                                                 
interest and is available without a three-quarters' vote.                                                                       
[Representative Rokeberg's motion to move the resolution was in                                                                 
CHAIRMAN KOTT announced that HJR 30 would be held over until the                                                                
following Monday, at which time he would ask about the debt owed by                                                             
the state to the CBR.  Specifically, he wanted to know what becomes                                                             
of the pay-back status, and whether it is transferred into a                                                                    
subsequent fund, for example, in the event that the state doesn't                                                               
have enough to repay that loan.  [HJR 30 was held over.]                                                                        
Number 2444                                                                                                                     
CHAIRMAN KOTT adjourned the House Judiciary Standing Committee                                                                  
meeting at 3:45 p.m.                                                                                                            

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