Legislature(1999 - 2000)
04/15/1999 01:24 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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 penalty. 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 sponsor. 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 testimony. 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 country. 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 concluded. 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 not?" 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 safety." 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 expanded." 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 deterred. 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 them." 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 Committee. 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 law. 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 unconstitutional. 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 revenues. 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 overhead." 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 litigant. 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 resources. 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 abused. 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 standing. 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 standing." 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 statement. 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 jest.] 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.] ADJOURNMENT Number 2444 CHAIRMAN KOTT adjourned the House Judiciary Standing Committee meeting at 3:45 p.m.