Legislature(1999 - 2000)
04/21/1999 01:10 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE April 21, 1999 1:10 p.m. MEMBERS PRESENT Representative Pete Kott, Chairman Representative Joe Green Representative Norman Rokeberg Representative Jeannette James Representative Lisa Murkowski Representative Eric Croft Representative Beth Kerttula MEMBERS ABSENT All members present COMMITTEE CALENDAR 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." - MOVED HB 176 OUT OF COMMITTEE HOUSE BILL NO. 155 "An Act relating to municipal assembly forms of representation and apportionment." - MOVED HB 155 OUT OF COMMITTEE HOUSE BILL NO. 135 "An Act relating to use of eavesdropping and recording devices by peace officers." - HEARD AND HELD HOUSE BILL NO. 158 "An Act relating to the annual report of the director of the division of insurance and to notice of cancellation of personal insurance." - MOVED CSHB 158(L&C) OUT OF COMMITTEE * HOUSE BILL NO. 28 "An Act imposing a surcharge on fines imposed for misdemeanors, infractions, and violations and authorizing disposition of estimated receipts from that surcharge; and creating the juvenile justice grant fund in order to provide financial assistance for the operation of youth courts." - MOVED CSHB 28(JUD) OUT OF COMMITTEE * HOUSE JOINT RESOLUTION NO. 31 Proposing an amendment to the Constitution of the State of Alaska requiring that the Governor be elected by a majority vote if a preferential voting system is provided by law. - SCHEDULED BUT NOT HEARD SENATE COMMITTEE SUBSTITUTE FOR SENATE BILL NO. 11(JUD) "An Act relating to good time credits for prisoners serving sentences of imprisonment for certain murders." - SCHEDULED BUT NOT HEARD (* First public hearing) PREVIOUS ACTION BILL: HB 176 SHORT TITLE: PUBLIC INTEREST LITIGANTS SPONSOR(S): REPRESENTATIVES(S) GREEN, Rokeberg, James 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 4/15/99 (H) HEARD AND HELD 4/15/99 (H) MINUTE(JUD) 4/16/99 852 (H) COSPONSOR(S): ROKEBERG 4/21/99 (H) JUD AT 1:00 PM CAPITOL 120 BILL: HB 155 SHORT TITLE: MUNICIPAL ASSEMBLY APPORTIONMENT SPONSOR(S): REPRESENTATIVES(S) SMALLEY, Davis, Phillips Jrn-Date Jrn-Page Action 3/24/99 555 (H) READ THE FIRST TIME - REFERRAL(S) 3/24/99 555 (H) CRA, JUD 3/29/99 606 (H) COSPONSOR(S): DAVIS 4/07/99 679 (H) COSPONSOR(S): PHILLIPS 4/08/99 (H) CRA AT 8:00 AM CAPITOL 124 4/08/99 (H) MOVED OUT OF COMMITTEE 4/08/99 (H) MINUTE(CRA) 4/08/99 686 (H) CRA RPT 6DP 4/08/99 686 (H) DP: JOULE, KOOKESH, DYSON, MURKOWSKI, 4/08/99 686 (H) HARRIS, HALCRO 4/08/99 686 (H) ZERO FISCAL NOTE (DCRA) 4/21/99 (H) JUD AT 1:00 PM CAPITOL 120 BILL: HB 135 SHORT TITLE: POLICE USE OF EAVESDROPPING DEVICES SPONSOR(S): REPRESENTATIVES(S) KOTT Jrn-Date Jrn-Page Action 3/12/99 438 (H) READ THE FIRST TIME - REFERRAL(S) 3/12/99 438 (H) JUDICIARY 4/09/99 (H) JUD AT 1:00 PM CAPITOL 120 4/09/99 (H) SCHEDULED BUT NOT HEARD 4/21/99 (H) JUD AT 1:00 PM CAPITOL 120 BILL: HB 158 SHORT TITLE: NOTICE OF INS. CANCELLATION TO ELDERLY SPONSOR(S): REPRESENTATIVES(S) ROKEBERG Jrn-Date Jrn-Page Action 3/24/99 556 (H) READ THE FIRST TIME - REFERRAL(S) 3/24/99 556 (H) L&C, JUD 4/07/99 (H) L&C AT 3:15 PM CAPITOL 17 4/07/99 (H) HEARD AND HELD 4/07/99 (H) MINUTE(L&C) 4/09/99 (H) L&C AT 3:15 PM CAPITOL 17 4/09/99 (H) HEARD AND HELD 4/09/99 (H) MINUTE(L&C) 4/12/99 (H) L&C AT 3:15 PM CAPITOL 17 4/12/99 (H) SCHEDULED BUT NOT HEARD 4/14/99 (H) L&C AT 3:15 PM CAPITOL 17 4/14/99 (H) MOVED CSHB 158(L&C) OUT OF COMMITTEE 4/14/99 (H) MINUTE(L&C) 4/16/99 841 (H) L&C RPT CS(L&C)1DP 6NR 4/16/99 841 (H) DP: ROKEBERG; NR: MURKOWSKI, HARRIS, 4/16/99 842 (H) CISSNA, BRICE, SANDERS, HALCRO 4/16/99 842 (H) ZERO FISCAL NOTE (DCED) 4/19/99 (H) JUD AT 1:00 PM CAPITOL 120 4/19/99 (H) SCHEDULED BUT NOT HEARD 4/21/99 (H) JUD AT 1:00 PM CAPITOL 120 BILL: HB 28 SHORT TITLE: SURCHARGE ON FINES; YOUTH COURTS SPONSOR(S): REPRESENTATIVES(S) CROFT, Green Jrn-Date Jrn-Page Action 1/19/99 25 (H) PREFILE RELEASED 1/8/99 1/19/99 25 (H) READ THE FIRST TIME - REFERRAL(S) 1/19/99 25 (H) HES, JUDICIARY, FINANCE 2/01/99 121 (H) HES REFERRAL WAIVED 4/21/99 (H) JUD AT 1:00 PM CAPITOL 120 WITNESS REGISTER REPRESENTATIVE HAROLD SMALLEY Alaska State Legislature Capitol Building, Room 428 Juneau, Alaska 99801 Telephone: (907) 465-3779 POSITION STATEMENT: Sponsor of HB 155. LINDA MURPHY, Borough Clerk Kenai Peninsula Borough 144 North Binkley Street Soldotna, Alaska 99669 Telephone: (907) 262-4441 POSITION STATEMENT: Urged passage of HB 155. PAT HARMAN, Legislative Administrative Assistant to Representative Pete Kott Alaska State Legislature Capitol Building, Room 118 Juneau, Alaska 99801 Telephone: (907) 465-3777 POSITION STATEMENT: Provided sponsor statement on HB 135. CORY WINCHELL, Administrative Assistant to Representative Pete Kott Alaska State Legislature Capitol Building, Room 118 Juneau, Alaska 99801 Telephone: (907) 465-3777 POSITION STATEMENT: Discussed the legal issues related to HB 135. DUANE UDLAND, Chief Anchorage Police Department 4501 South Bragaw Street Anchorage, Alaska 99507 Telephone: (907) 786-8590 POSITION STATEMENT: Testified on HB 135. DAVID HUDSON, First Sergeant Division of Alaska State Trooper Department of Public Safety 5700 East Tudor Road Anchorage, Alaska 99507-1225 Telephone: (Not provided) POSITION STATEMENT: Testified on HB 135. BLAIR McCUNE, Deputy Director Central Office 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 135 and waived his time to other testifiers on HB 28. GERALD LUCKHAUPT, Attorney Legislative Legal Counsel Legislative Legal and Research Services Legislative Affairs Agency 130 Seward Street, Suite 409 Juneau, Alaska 99801-2105 Telephone: (907) 465-2450 POSITION STATEMENT: Answered questions of the committee members. ANNE D. CARPENETI, Assistant Attorney General Legal Services Section-Juneau Criminal Division Department of Law P.O. Box 110300 Juneau, Alaska 99811-0300 Telephone: (907) 465-3428 POSITION STATEMENT: Testified on HB 135. JOHN GEORGE, Lobbyist for the National Association of Independent Insurers 3328 Fritz Cove Road Juneau, Alaska 99801 Telephone: (907) 789-0172 POSITION STATEMENT: Answered questions regarding HB 158. KATE AMPHAY, Intern for Representative Eric Croft Alaska State Legislature Capitol Building, Room 400 Juneau, Alaska 99801 Telephone: (907) 465-4998 POSITION STATEMENT: Presented sponsor statement on HB 28. LINDA JOHNSON, Legal Advisor Anchorage Youth Court P.O. Box 102735 Anchorage, Alaska 99510 Telephone: (907) 274-5986 POSITION STATEMENT: Testified in support of HB 28. WENDY LEACH, Executive Director North Star Youth Court 800 Cushman Street Fairbanks, Alaska 99701 Telephone: (907) 457-6792 POSITION STATEMENT: Testified in support of HB 28. LISA MAKAR, Program Coordinator Mat-Su Youth Court 1801 Parks Highway, Suite C-06 Palmer, Alaska 99645 Telephone: (907) 373-5193 POSITION STATEMENT: Testified in support of HB 28. MATT NEIL 441 West 5th Avenue, Suite 701 Anchorage, Alaska 99501 Telephone: (907) 279-9609 POSITION STATEMENT: Testified in support of HB 28. BILL EDWARDS 12721 Schooner Drive Anchorage, Alaska 99515 Telephone: (907) 345-9477 POSITION STATEMENT: Testified in support of HB 28. LADDIE SHAW, Executive Director Alaska Police Standards Council Department of Public Safety P.O. Box 111200 Juneau, Alaska 99811-1200 Telephone: (907) 465-4378 POSITION STATEMENT: Testified on HB 28 in regards to the surcharge. STUART BANNAN, Vice-President Anchorage Youth Court Bar Association 2130 Atwood Drive Anchorage, Alaska 99517 Telephone: (Not provided) POSITION STATEMENT: Testified in support of HB 28. RANDALL PATTERSON, Vice President Anchorage Youth Court Board of Directors 1015 West 7th Avenue Anchorage, Alaska 99501 Telephone: (907) 272-6434 POSITION STATEMENT: Testified in support of HB 28. ROBERT BUTTCANE, Juvenile Probation Officer Youth Corrections Division of Family and Youth Services Department of Health and Social Services P.O. Box 110630 Juneau, Alaska 99811-0630 Telephone: (907) 465-2212 POSITION STATEMENT: Testified in support of HB 28. ACTION NARRATIVE TAPE 99-36, SIDE A Number 0001 CHAIRMAN PETE KOTT called the House Judiciary Standing Committee meeting to order at 1:10 p.m. Members present at the call to order were Representatives Kott, Green, Rokeberg and James. Representatives Murkowski, Croft and Kerttula arrived at 1:12 p.m., 1:15 p.m. and 1:29 p.m., respectively. HB 176 - PUBLIC INTEREST LITIGANTS CHAIRMAN KOTT announced the first order of business is HB 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." Number 0089 REPRESENTATIVE ROKEBERG made a motion to move HB 176 [1-LS0656\D] from the committee with individual recommendations and the attached fiscal note(s). There being no objection, HB 176 was so moved from the House Judiciary Standing Committee. HB 155 - MUNICIPAL ASSEMBLY APPORTIONMENT CHAIRMAN KOTT announced the next order of business is HB 155, "An Act relating to municipal assembly forms of representation and apportionment." Number 0190 REPRESENTATIVE HAROLD SMALLEY, Alaska State Legislature, came before the committee as sponsor of the bill. He noted that Linda Murphy may be on-line as clerk of the Kenai Peninsula School District [Kenai Peninsula Borough]. He explained that she contacted him and suggested legislation that would allow flexibility for boroughs and municipalities across the state regarding elections in times of reapportionment and boundary lines. He noted that there are conflicts and confusion, especially on the Kenai Peninsula. In some precincts there are four different assembly positions. This bill would allow the flexibility to follow existing policy or to wait until such time the state has drawn the boundary lines. He noted to the committee members that there is a sectional analysis in the bill packet. The big change is in Section 3, which allows for the flexibility. The new language reads, "The assembly may provide, by ordinance, for a change in an existing apportionment of the assembly whenever a final state redistricting plan is changed as a result of federal or court action." Hopefully, by allowing boroughs to wait there would be fewer challenges to ballots, and a lot less confusion in regards to whether or not a voter is in the right precinct. Number 0393 CHAIRMAN KOTT noted that the bill had a previous committee of referral - House Community and Regional Affairs - with six "due passes." Number 0408 REPRESENTATIVE ROKEBERG noted that there are a number of people on the Kenai Peninsula lined up to testify. He asked Representative Smalley whether there is a particular problem there regarding this issue. Number 0418 REPRESENTATIVE SMALLEY replied Ms. Murphy can probably answer that question better. There have been some difficulties in the past, and the potential is even greater because there are at least four assembly seats in the area with different boundary lines. Number 0448 REPRESENTATIVE JAMES noted that there is area-wide representation in the Fairbanks North Star Borough. She asked Representative Smalley what is the positive effect of having district representation for the assembly seats. REPRESENTATIVE SMALLEY replied Ms. Murphy can probably answer that question better. It's a direction that the borough chose some time ago. It is done with the school board and assembly seats. It has to do with community members feeling that they are better represented. REPRESENTATIVE SMALLEY noted that the council seats for the city of Kenai are basically open, but the assembly and school board seats are apportioned. Number 0518 CHAIRMAN KOTT opened the meeting to public testimony. Number 0533 LINDA MURPHY, Borough Clerk, Kenai Peninsula Borough, testified via teleconference from Utah. She informed the committee that Representative Smalley drafted HB 155 per her request. Under current state law, boroughs with district assembly seats must present the voters with a reapportionment plan prior to the time the state reveals its plan. When the state reapportions, the state's voter precinct lines are shifted and changed. Ms. Murphy explained that it is easier for areas with district seats to have the area's assembly lines follow state precinct lines because then the voter only has one ballot. Currently, there is no way of knowing where the state's voter precinct lines will fall. As mentioned, one precinct in the Kenai Peninsula Borough contains portions of four different assembly seats. Such a situation is confusing for the volunteer election workers, for qualifying someone to run for a district seat, and for absentee ballot requests in those precincts. This legislation would provide the borough with the flexibility to present its redistricting plan to the voters after the state has done reapportionment. She urged the committee to pass HB 155. REPRESENTATIVE ROKEBERG pointed out that Section 4, of existing statute, says that the ordinance will be submitted to the voters. He asked whether the voters have to ratify the reapportionment plan under the existing statute. MS. MURPHY replied yes. REPRESENTATIVE ROKEBERG asked whether there is anything in statute that mandates that there "shall" be a reapportionment. MS. MURPHY clarified that Representative Rokeberg was referring to Section 3, which does not deal with the initial reapportionment after the decennial census. Once the state adopts a plan, the state's plan must be cleared by the Department of Justice in Washington, D.C. because Alaska falls under the Federal Voting Rights Act. Therefore, the state's adopted plan could be changed by the federal government or challenged in court by anyone in the state. If an area adopts a plan based on the state's plan, which is subsequently overturned or changed by the federal government or the court, that area would be able to revise the plan and present the voters with a new plan based on the new lines for the state. The current state law only allows boroughs to present a new plan to the voters if the borough determines that apportionment does not meet state standards. CHAIRMAN KOTT closed the meeting to public testimony. Number 0873 REPRESENTATIVE GREEN moved to report HB 155 out of committee with individual recommendations and the accompanying zero fiscal note. There being no objection, HB 155 was so moved from the House Judiciary Standing Committee. HB 135 - POLICE USE OF EAVESDROPPING DEVICES CHAIRMAN KOTT announced the next order of business is HB 135, "An Act relating to use of eavesdropping and recording devices by peace officers." Number 1045 PAT HARMAN, Legislative Administrative Assistant to Representative Pete Kott, Alaska State Legislature, came before the committee to present the sponsor statement. He said social changes have occurred since the State v. Glass (1978) decision over two decades ago. Illegal drugs are now a major social issue. Violence and potential violence is a major concern to law enforcement because drug dealers are usually armed. This bill is for peace officer safety. It would allow an officer to wear a wire without a warrant for purposes of safety. It would allow backup officers to monitor a conversation and come to the rescue if an officer's safety is at risk. Presently, they use hand signals or other visual signals to call for backup. However, many conversations are out of sight of the backup and requires this bill to improve an officer's safety. He noted that the following restrictions are included: - The monitoring can only occur during the investigation or arrest of a person for a crime and if that officer is a party to that conversation; - It must be for the safety of the officer; - The conversation cannot be recorded; and - The backup officer(s) may not testify in a criminal proceeding involving the content of the conversation or that it actually occurred. MR. HARMAN further noted that there are constitutional issues that need to be discussed which can only be resolved by the courts. The issue for this committee is whether or not officer safety is important enough to test its constitutionality, if it were to become law. The American Civil Liberties Union has submitted an amendment that the sponsor agrees with. He explained that page 2, line 23, would be changed to read, "communications and consented to the interception," which means that an officer would have to consent to wearing a wire. In other words, a peace officer could not be required to wear a wire. Number 1229 CORY WINCHELL, Administrative Assistant to Representative Pete Kott, Alaska State Legislature, came before the committee to discuss the legal and constitutional issues of the bill. He noted that the seminal case on point is State v. Glass. In Glass, the police used a wiretap and sought to admit it as evidence. The bill does not seek to do that, however. It is solely for the safety of peace officers. Mr. Winchell further noted that in Glass the court grappled with the issue of privacy. It talked a lot about the supreme court decisions, particularly Justice Harlan's decision on an expectation of privacy and a reasonable belief that privacy is there. The court adopted that rationale. It also said that the state has the right to extend rights of privacy further than what the supreme court did. He referred to page 9, of the Glass decision, and read the following: "Legitimate interests of law enforcement authorities, however, may generally be met in the same manner as in other searches and seizures. In the absence of limited exceptions, a search warrant should be obtained from an impartial magistrate, based on probable cause to believe that criminal activity will be discovered, before electronic monitoring of conversations should be allowed. It may be that, as in other search and seizure contexts, the requirement of a warrant may be obviated under exigent circumstances. We withhold passing on that issue until presented with a specific case." MR. WINCHELL noted that the bill would be the case. It would probably wind its way up the courts. The exigent circumstance is officer safety. In addition, the person listening to the electronic communication cannot testify as to any of the matters. Number 1428 REPRESENTATIVE JAMES said this all sounds well and good for officer safety, but once a person hears something, she wonders how there can be assurance that it is not used for other reasons. Number 1461 MR. WINCHELL stated it is a policy call that this committee and the legislature have to make. He informed Representative James that this is being limited to the safety of peace officers. Number 1489 REPRESENTATIVE JAMES asked Mr. Winchell to show her the language. MR. WINCHELL replied the language is in Section 2(b) - "(b) A peace officer monitoring a receiving unit under (a) of this section is not competent to testify in a criminal proceeding involving a party to the oral communication about the contents of the oral communication that was intercepted or the fact that the communication occurred." The officer who is bugged can testify, write a report, or swear upon an affidavit. After all, it is a face-to-face conversation. Number 1552 REPRESENTATIVE JAMES said that isn't the scenario she is worried about. She is worried about somebody listening to a recording when an officer is shot and killed. That person can't tell anybody, but he will. MR. WINCHELL said there is a theory called the, "fruit of the poisonous tree." If a person hears incriminating words that lead to evidence further on, that evidence can be excluded based on that theory, and a good defense attorney would argue and protect a person under that doctrine. Number 1638 REPRESENTATIVE JAMES said therein lies the problem in the current legal system - utilizing the truth, but it can't be told. That is one of the reasons the public has so much discomfort with the decisions that come out of the courts. She sees some real problems by opening this door and at the same time keeping it shut to the room in certain circumstances that are not necessarily good for society. Number 1671 MR. WINCHELL stated other states permit this, but Alaska has a right of privacy that is a little bit higher than other states in the union, which the supreme court recognized as important in Glass. At this point, our hands are tied, unless there is a constitutional amendment sweeping away that right. Number 1701 REPRESENTATIVE CROFT confirmed that whether the Glass decision says it can't be done or whether it can't be used as evidence. MR. WINCHELL read the following: "One argument advanced is that bugging aids in safeguarding informants. This may be questionable since the presence of electronic devices on the informant may add to his risk, because sophisticated 'anti-bugging' technology may disclose the presence of the device or it may otherwise be discovered. In any event, New Hampshire has met that contention by holding that a statute which permits participant monitoring does not permit the introduction at trial of a tape recording of a conversation transmitted by such a device. The court held that the purpose of the statute's exception was to allow police officers to protect the undercover officer and that monitoring for purposes of rescue was not equivalent to monitoring for purposes of introduction of the conversation at trial." [n34 of Glass] MR. WINCHELL noted that is exactly what the bill is trying to do. The bill is asking the court to recognize that there are exigent circumstances for the safety of peace officers. Number 1782 REPRESENTATIVE CROFT stated the case from New Hampshire has a rule like Glass, but the court said that their statute is okay because it doesn't require using it. MR. WINCHELL said their statute permits participants to monitor [a conversation] for safety reasons as long as they don't introduce the tape in a trial. Number 1806 REPRESENTATIVE CROFT clarified that whether the State v. Ayers case [State v. Ayers, 118 N.H. 90, 383 A.2d 87, 88 (N.H. 1978)] was a question of statutory interpretation rather than a constitutional limitation. MR. WINCHELL replied it is the same kind of case that would come down the pipe, if the bill passed out of the committee. REPRESENTATIVE CROFT referred to the State v. Brackman case [State v. Brackman, 582 P.2d 1216 (Mont. 1978)] and noted that at least Montana has the same rule that Alaska does in Glass. MR. WINCHELL replied the case held that privacy protections were of such a large degree that it was distinguished between federal case law and other states such as California. The bill asks, as a matter of policy, for the legislature to empower peace officers to protect themselves. Number 1843 REPRESENTATIVE CROFT wondered why a statute is needed to do this. Glass is an evidentiary limitation. He asked Mr. Winchell whether he agrees that peace officers can wear a wire now; they just can't use it as evidence. Number 1864 MR. WINCHELL replied perhaps peace officers can wear a wire now, but it might incur civil liabilities for constitutional violations. Number 1894 REPRESENTATIVE CROFT asked Mr. Winchell why this should be exempted from the warrant requirements. This arguably is the right thing to do for the safety of officers, but these are planned setups. There is plenty of time to go to a judge and get a warrant. Number 1933 MR. WINCHELL replied it would streamline the system, perhaps to the detriment of rights. But, if peace officers have to go to a magistrate every time [to get a warrant] for a buy, they would flood the magistrates. Yes, they have to do it anyway. The bill just says that it would not be used for evidence. Number 1962 REPRESENTATIVE CROFT said: "So, they can do it now. They just have to get a warrant to do it." MR. WINCHELL replied yes a Glass warrant. REPRESENTATIVE CROFT noted that it is standard enough now to even have a name - Glass warrant. MR. WINCHELL noted that there is worry about the propensity of violence. He reiterated the gist of the bill is for the safety of peace officers. Number 1987 CHAIRMAN KOTT stated when he introduced the bill there was discussion from the Municipality of Anchorage that some of the courts do not go along with it and some do, therefore, clarification is needed on whether or not this is legal. In addition, there are special circumstances that do not allow an officer to go to a magistrate. For example, there are unusual types of things that occur on the spur of the moment when there isn't time to get a Glass warrant. Number 2038 MR. WINCHELL noted that the court recognized in Glass the existence of AS 11.60.290. He's not sure whether that statute is still on the books, however. It is unlawful to eavesdrop, and an officer shouldn't be subjected to those kinds of problems. Number 2077 REPRESENTATIVE GREEN referred to a rendering by Judge Sigurd Murphy - a judge that he holds in high regard - and stated a person can never be sure about how a judge may come down on something. He can, therefore, see why there is this kind of "belt-and-suspenders" approach to protect an officer. He asked Mr. Winchell to address Representative James' concern regarding a murdered officer. Number 2108 MR. WINCHELL replied, if an officer is murdered and somebody is listening on the other end, that testimony can be used if a compelling state interest is shown. Baring that, other types of evidence would have to be used to prove that a murder occurred. He reiterated the bill is trying to comply with the constitutional right to privacy and the Glass decision. Number 2160 CHAIRMAN KOTT noted that's how people commit homicides and "get off the hook." Number 2165 REPRESENTATIVE KERTTULA said there are many, many exceptions to hearsay, which is one of the problems here, but the fundamental rule of the constitution is started out with, which is freedom from unreasonable searches. MR. WINCHELL said it's unreasonable searches and an express right to privacy. REPRESENTATIVE KERTTULA referred to the language - "(8) the making by a uniformed peace officer of an audio recording in conjunction with the video recording of traffic and other law enforcement patrol contact;" - and stated it seems to go off on a different tangent. Number 2217 MR. WINCHELL replied when he read that portion he thought of a "COPS" show on television. He doesn't know whether routine traffic stops are so important and dangerous that they need to be carved out as an exception. Number 2240 REPRESENTATIVE KERTTULA said she can see the intent of the bill, but this went off on another tangent. She isn't real clear on whether it might or might not cause damage to the intent of the rest of the bill. Number 2266 REPRESENTATIVE MURKOWSKI stated this is a crazed world anymore. An officer can respond to a domestic violence call, for example, and get "nailed." She asked Mr. Winchell, in recognizing the concern of the safety of officers, how can we keep from going down a slippery slope. In other words, what's to stop an officer from saying anytime he puts his badge on he is in a life threatening situation? MR. WINCHELL replied one response is the vigilance of the legislature and a decision not to walk down that slippery slope. The other response is in trusting the prosecutors and peace officers. There has to be hope and trust that the peace officers would act accordingly, and when they don't, that the court systems would pick it up. CHAIRMAN KOTT opened the meeting to public testimony. Number 2370 DUANE UDLAND, Chief, Anchorage Police Department, testified via teleconference from Anchorage. He is also president of the Alaska Chiefs of Police Association. He thanked the sponsor for bringing the bill in. This is an important issue for law enforcement. He noted that twenty-five years ago, when doing undercover work, officers rarely came upon guns. Now, it's almost the norm. The nature of the business has changed and it has become more violent out there. This issue is near and dear to the working cops out on the streets. CHIEF UDLAND further stated, in response to Representative James' frustration with the limitations of the statute, officers are stuck with the boundaries where the supreme court has already ruled. In response to Representative Croft, as far as the existing statutes are concerned, he has looked at that for years, and the district attorney has always recommended that the law is not clear enough and that peace officers would be committing a misdemeanor if safety wires were used. Therefore, universally, peace officers across the state have not used safety wires. He does not let his officers wear safety wires, under the current law, knowing that they may be committing a misdemeanor. In reference to the question of getting warrants now and just continuing to do so, sometimes there isn't enough information to get one. Often times, officers go out and make a drug-buy to establish probable cause then go get a Glass warrant. And, unfortunately, an officer can't wear a safety wire on that first buy requiring officers to go in cold without any resources or monitoring of what's going on around them. He noted that this is not just limited to drug-buys... TAPE 99-36, SIDE B Number 0001 CHIEF UDLAND continued. There are decoy officers, such as women officers dressed as prostitutes, that cannot be monitored. If a "John" pulls up and puts a gun to that officer's head, they would not be able to hear any of that transaction making it very difficult to protect that officer. In reference to Representative Murkowski's [Kerttula's] concern regarding traffic, officers share the same concern. He's not sure why it should be in statute. The law is already very clear on videotaping and electronically monitoring conversations with a uniformed officer performing his duties when a person knows that he is dealing with a peace officer. Personally, he would like to see that language taken out. In regards to the slippery slope concern, he agrees with the comments made in terms of trusting peace officers, but the reality is an officer can wear a recorder now while performing his duties. The peace officers are asking to wear that recorder when there's danger and where a person doesn't know that they are officers, which inherently involves undercover work and a lot of risk. The peace officers are asking that the legislature take a look at this. They fully expect this to be litigated, and hopefully, there will be a favorable ruling. He would be happy to answer any questions. Number 0070 REPRESENTATIVE CROFT asked Chief Udland whether officers have tried to apply for a safety Glass warrant to wear a wire going into a buy that is possibly dangerous with a magistrate. CHIEF UDLAND replied he can't say that there hasn't been a peace officer who tried that approach. He said: "The problem is, you know, say you are a citizen and you call us, you think that there is dope activity going on in a house down the street. And, that's about all you know. You just know that you have cars coming and going late at night and you see a bunch of strange people hanging around there all the time stopping in for brief moments. And, that's all the information you have. Well, that probably describes a dope house or crack house of some sort. I don't know what information we could possibly develop based on that to tell a magistrate that we think we've got a dangerous situation and we need a safety warrant. There's no authorization for, in the current law, for safety warrant. And, so it looks like the dilemma that in order to get information we have to go up to the house, and believe it or not a lot of the cases we make are just on situation I outlined where an officer walks up and knocks on the door and says, 'Hey, I heard you're selling dope. Anybody buying dope?' And, then we go back and then we get a warrant to do what we call a Glass warrant so we can get a recorded buy. And, then we go back with that first--that first contact with the crack house that we simply there's not enough information to articulate so, even if there was an allowance for a safety wire I don't know how we would ever develop the information, you know, to be able to articulate before a magistrate." Number 0140 REPRESENTATIVE CROFT said that's an interesting distinction. It doesn't have to rise to the level of a full probable cause. It can be crafted however. While he can see how it would be difficult to articulate a probable cause standard, he asked Chief Udland whether there is some other standard that could be included to justify the danger. There are lower standards - reasonable suspicion or articulated facts justifying a danger. Number 0173 CHIEF UDLAND suggested the language, "upon the belief of the police officer." He doesn't see the need to do that, however, because of the prostitute example mentioned earlier. Would an officer have to have a wire warrant for every citizen that was in a car that stopped to talk to the decoy based on fear? He doesn't know what the standard would be and it seems somewhat impractical. Number 0198 REPRESENTATIVE KERTTULA asked Chief Udland what situations this would have helped with in the past. She also asked what would change with this. CHIEF UDLAND replied it would change any times in the past and present where officers are being sent into situations that are dangerous. "We" are asking officers now to go into a dangerous situation without backup and monitoring, which goes on every day across the state, particularly with drug investigations. More times than not, when knocking on that hypothetical house he mentioned earlier, some form of weapon is found and that house later ends up being searched with a warrant. He reiterated "we" are sending officers into those situations without any protection knowing that they are at great risk. This bill would fix that. This is not unusual. A lot of states and the federal government get by just fine allowing this. The Glass decision never really anticipated the direction that violence has taken in this country. Number 0261 REPRESENTATIVE KERTTULA said she understands what he is saying and she certainly respects and admires peace officers. She noted that everything is done to protect officers, therefore, she is concerned about the vigilance in terms of it becoming a reliance on monitoring rather than actually watching the officer. She is trying to think of a concrete example where this would have helped in terms of stopping violence towards an officer. She agrees with Representative Murkowski that an officer can face a violent situation on a simple call. Number 0291 CHIEF UDLAND replied a uniformed officer can wear a tape recorder right now on a call. He is talking about undercover work where people don't know that the person is an officer. Every day peace officers are going behind closed doors into potentially dangerous situations and nobody is able to monitor them for safety. If an officer goes into an apartment and a gun is pulled to him, the backup officers have no idea what is taking place. Number 0341 REPRESENTATIVE ROKEBERG asked Chief Udland what misdemeanor would an officer be breaking if that officer wore a safety wire. CHIEF UDLAND replied that officer would be breaking a misdemeanor in AS 42.20.300 - "Unauthorized publication or use of communications." Number 0367 DAVID HUDSON, First Sergeant, Division of Alaska State Trooper, Department of Public Safety, testified via teleconference from Anchorage. He is not here to talk about the legal issues. He is here to talk about officer safety. In 1993 and 1994, he worked in a combined task force with the Anchorage Police Department. During that time frame, he worked on one of the largest heroin cases ever held in Alaska. He noted that often times, there isn't time in a drug case to develop appropriate probable cause - because of its tempo - to go before a magistrate in order to get a Glass warrant. He cited an example of buying heroin in Spenard [Anchorage] in January. It was extremely hard to stay close to his partner. He was not in sight or hearing range of him when he would go into a particular house for a buy. They had decided beforehand how long to stay in a particular place. It was an extremely tenuous situation and often he would proceed to locate his partner. He noted that, in these types of cases, the dynamics change very rapidly. In addition, the bad guys recognize the procedures. They watch "COPS" just like everybody else. They realize that it takes time to set up an operation and to do other things. They naturally want to avoid getting caught, so they often change locations, directions, names and places rapidly. "We don't have time to do all the things that you see in 'COPS' where they set up a raid team and they get backup and they do all this other stuff." He has been in places in Anchorage during the winter where a gun shot could have gone off and his partner and backup would not have heard it. They were in locales that weren't close enough to visually watch him or touch him. He thanked Representative Kott for taking the initiative on this issue. He would be glad to answer any questions. Number 0540 BLAIR McCUNE, Deputy Director, Central Office, Public Defender Agency, Department of Administration, testified via teleconference from Anchorage. The agency is concerned with the bill because it believes that it is unconstitutional. It is a difficult legal area. In a wiretapping situation, "A" is talking to "B" and someone who is not a party to the conversation, "C," taps in and listens to the conversation. In a situation that the bill targets, "A" is talking to "B," and "B" consents to a recording and/or to broadcasting the conversation, which is not illegal under the federal constitution or under most state constitutions. He cited in Vermont and Massachusetts their supreme courts have ruled that it violates the right to privacy when done in a home. The Glass case is older and has recently been reaffirmed in a case that involves a slightly different fact-pattern - State v. Page. MR. McCUNE noted it is important to understand what can be done now. If an officer identifies him or herself as a peace officer, that officer can tape or broadcast with or without the consent of the person being contacted. That was made possible by a decision in the City and Borough of Juneau v. Quinto case [684 P.2d 127 (Alaska 1984)]. In addition, if an officer has probable cause, that officer can get a Glass warrant for participant monitoring. The legislature has made a lot of changes to the statute for the judiciary to issue a warrant. For example, it can be issued over a telephone with telephonic testimony - AS 12.35.015. In addition, he noted that the statute refers to peace officers and stated that there are special commissioned peace officers and he's not certain whether they would be covered. They are not regular peace officers, but people who are brought in specifically for drug undercover work. The basic concern is the right of privacy, of going into a person's home without probable cause by an undercover agent. In reference to the "fruit of the poisonous tree doctrine," if an officer monitors a conversation, it is questionable whether or not that information can be used to develop further leads and probable cause. It could taint a further warrant, even though the information was clear. In conclusion, he echoes the concern of the fact that there are more dangerous situations today. Other societies have taken steps to de-arm their citizens rather than going after constitutional rights. That's probably not a popular thing to say these days, but there are other ways to deal with safety concerns. Number 1007 REPRESENTATIVE CROFT said he's not sure that he buys the "fruit of the poisonous tree doctrine." He asked Mr. McCune how is it materially different from an officer who heard something live versus an officer who heard it outside. Number 1047 MR. McCUNE replied it's a situation where "A" and "B" are talking together and "C" overhears the conversation. "B" can certainly go to a magistrate and furnish probable case for a warrant. But, it's against the constitution for "C" who overheard the conversation to go to a magistrate and furnish probable cause for a warrant. Number 1122 REPRESENTATIVE KERTTULA said one of the problems is the issue of whether or not a person could have gotten a warrant. There'll be a lot of challenges to whether or not an officer wore a wire for safety reasons. Number 1149 REPRESENTATIVE ROKEBERG said, he thought, the question is whether the probable cause is issued by one of the witnesses to the event. He wondered how getting a Glass warrant after the fact would be tainted. Number 1187 CHAIRMAN KOTT questioned Mr. McCune as to whether there is a distinction between the Page and Glass cases because the bill requires an officer to wear a recording device on his person. The circumstances were not the same in Page. A bugging device planted in a wall would clearly be unconstitutional. Number 1222 MR. McCUNE replied in Page a video camera was set up with the consent of one of the participants. It is distinguishable, but the courts looked at the people who set up the video camera as agents and closely associated with one of the participants. The case went to the supreme court and Chief Justice Warren W. Mathews provided a long legal opinion on participant monitoring, which is a real primer and good source of information for the committee to consider. CHAIRMAN KOTT asked Mr. Gerald Luckhaupt [Attorney, Legislative Counsel, Legislative Legal and Research Services, Legislative Affairs Agency] to clarify the inclusion of an officer using audio recording in conjunction with video recording. Number 1340 GERALD LUCKHAUPT, Attorney, Legislative Counsel, Legislative Legal and Research Services, Legislative Affairs Agency, came before the committee to answer questions. He noted that the language was included based on discussion with staff. He didn't want to make it seem that the legislature was finding a practice - that is now legal and constitutional - illegal. Currently, uniformed officers can secretly tape-record conversations with suspects. Even if they aren't in uniform, if they are known to the person they are talking to as a police officer, they can secretly tape-record and video tape conversations. The addition of the language talks about how undercovered officers can do this without authorizing the activities that the supreme court and court of appeals have found to be legal and constitutional. This line of thought came to him from a footnote in Glass which excluded surreptitious tape recordings by peace officers, not on a constitutional ground, but because it was excluded from a statute like AS 42.20.300. Because of Glass, any amendments made to the statute could be argued as illegal, therefore, he felt it was necessary to put that language in to authorize those activities. Number 1534 REPRESENTATIVE CROFT asked Mr. Luckhaupt why doesn't the language - "(6) a peace officer, or a person acting at the direction or request of a peace officer, engaging in conduct authorized by or under AS 12.37" - take care of that. MR. LUCKHAUPT replied AS 12.37 is the wiretapping statute. Maybe, it is something that he overlooked. It is a different level of law and probable cause and a warrant is required for a wiretap. Number 1580 REPRESENTATIVE CROFT asked Mr. Luckhaupt why does it need to be repeated because Section 2, of the bill, puts this instance in AS 12.37. MR. LUCKHAUPT replied, "We may not. Now that I think about it." There may be a way around that. He noted that subparagraph (6) may need to be amended to indicate that a warrant is not required for these types of activities. Number 1635 REPRESENTATIVE CROFT asked Mr. Luckhaupt why Glass warrants aren't misdemeanors now. MR. LUCKHAUPT replied they aren't misdemeanors now because of the supreme court decision. He doesn't know whether that decision has been codified, however. There were changes made in the wiretapping law to accommodate the Glass decision, which is why it is unique to Alaska. He noted that it is participant-monitored activities, so they would not be illegal. Number 1719 REPRESENTATIVE CROFT said it seems that AS 42.20.310 ["Eavesdropping"] is clear. A person may not use an eavesdropping device, and there is no exception for police conduct (indisc.) a warrent. He questioned whether every Glass warrant has been violating this statute for twenty years. MR. LUCKHAUPT said he doesn't know. He would have to think about that. REPRESENTATIVE CROFT said it could be true, but there isn't a district attorney in the world who would prosecute an officer that had a warrant to wear a wire as part of his duties. Number 1813 REPRESENTATIVE KERTTULA asked Mr. Luckhaupt to look into the eavesdropping exemption in AS 42.20.320(a)(4) as well. It looks like the situations being discussed might already be covered, and maybe, it's something that hasn't been utilized. Number 1885 MR. LUCKHAUPT referred Representative Croft to AS 42.20.300(a), in response to his question regarding an officer who is transmitting pursuant to a Glass warrant. The officer who has a Glass warrant is doing the transmitting and assisting others in receiving, therefore, he would not be subject to prosecution. The supreme court requires an officer to get a warrant under Glass, if that officer is undercover and not known to the person he is speaking to as a peace officer. That does not clearly exempt the parties listed, so he can see the concern of Representative Croft. Number 1955 REPRESENTATIVE CROFT asked Mr. Luckhaupt why the exceptions in the bill do not talk about covers. He referred to AS 12.37. MR. LUCKHAUPT noted that AS 12.37 is the wiretapping statute, which requires a different type of warrant to engage in that activity. When the statute was written, the drafters didn't want to tie them together. Number 2009 REPRESENTATIVE CROFT asked Mr. Luckhaupt whether there is any statutory section that codifies Glass warrants. MR. LUCKHAUPT replied no. Number 2026 REPRESENTATIVE KERTTULA asked Mr. Luckhaupt whether the exemption in AS 42.20.320(a)(4) reaches the same result. MR. LUCKHAUPT replied that was added about two years ago to allow law enforcement to tap into a phone during a hostage situation. It doesn't apply to anything at all in this bill. He cited a hostage situation, a barricade, and imminent illegal use of an explosive as examples. That operates as an exemption in the normal wiretapping statute as well. It basically codifies exemptions that other courts have found to be exigent circumstances, and have recognized police activities to intercept those types of communications as warranted due to the danger to the public. Number 2170 REPRESENTATIVE KERTTULA clarified that whether an officer can already monitor in those types of situations. MR. LUCKHAUPT replied the exemptions apply by meeting the subparagraphs - AS 42.20.320(a)(b) and (c). REPRESENTATIVE KERTTULA noted that she is reading the section a little bit more broadly than Mr. Luckhaupt, particularly AS 42.20.320 (a)(4). MR. LUCKHAUPT stated he reads AS 42.20.320 (a)(4) as the communications that are not being made by a law enforcement agency. He has not seen that exemption applied towards allowing an officer to use a wiretap, which is why he added the other statute in order to allow wiretapping in these emergency situations. Number 2375 REPRESENTATIVE KERTTULA questioned Mr. Luckhaupt as to whether there has been any court case since this exemption was put in place. MR. LUCKHAUPT replied not in Alaska. Number 2420 ANNE D. CARPENETI, Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law, came before the committee to testify. The Glass decision specifically states that the monitoring or recording of private conversations without a warrant violates the constitution - Article 1, Section 14; and Article 1, Section 22. The decision was more than evidentiary; it was a decision based on a person's right to privacy, which has a higher protection under the state constitution than the federal constitution and many other state constitutions... TAPE 99-37, SIDE A Number 0001 MS. CARPENETI continued. The Ayers decision found that monitoring for the safety of police officers is okay, but the use of the evidence is not. The department would suggest, as one way to help litigate this in court, adopting specific legislative findings that repeat what Chief Udland has said regarding the times since the Glass decision was handed down. Life has changed since then in this state and the country. Certain investigations are a lot more dangerous. MS. CARPENETI further stated that one thing to consider is an individual coming into an officer's automobile and having the conversation recorded even though the wire is not on the officer's person, but in the car itself. That would not be allowed under the bill as it is presently drafted. Number 0187 CHAIRMAN KOTT asked Ms. Carpeneti whether she is talking about a privately owned automobile or a black-and-white police automobile. MS. CARPENETI replied she is talking about an unmarked police officer's car. CHAIRMAN KOTT said, so a person wouldn't know it was a police officer. MS. CARPENETI said right. MS. CARPENETI referred to Section 3(8), of the bill, and stated the department would recommend that it not be included. This activity has been upheld by the courts in Quinto and Reynolds. A peace officer in uniform can record a suspect's conversation, and even if an officer is not in uniform as long as the suspect knows he is an officer. By including it in the bill, the courts may question the language - "uniformed peace officer" - and interpret it to not mean a peace officer who is not in uniform is not included and may not be covered under this exemption. She suggested considering the issue of when an officer is killed and provisions on whether or not what the monitoring officer heard can be used [as evidence]. In addition, she suggested considering Evidence Rule 412 where, in cases of perjury, evidence can be used that was obtained from a confession in a prosecution for perjury, or specifically provide for otherwise. Number 0388 REPRESENTATIVE GREEN asked Ms. Carpeneti whether there is an avenue to take to help law enforcement enhance their ability to catch "bad guys" in terms of letting them off because what was heard is not admissible. MS. CARPENETI replied there could be language indicating, in the event the officer who is wearing the body wire is killed, the evidence can be used by the monitoring officer. It could be an exemption. Number 0456 REPRESENTATIVE GREEN asked Ms. Carpeneti whether the bill could read - "put in harm's way" - rather then "killed." In other words, where does it stop? Things have changed in the past twenty years; it's dangerous out there. MS. CARPENETI said everybody has said, this bill would be litigated and it's not clear whether it would be upheld. Number 0546 REPRESENTATIVE CROFT said: "Let me understand that perjury idea. So, we--it would pass this bill and somebody may have a security wiretap on a police--undercover police officer who goes in to make a buy. They make a buy. They prosecute the guy for it. The guy stands up and says, 'I didn't do it,' in court and is convicted. Well, even before conviction, stands up testifies and says, 'I wasn't there' or 'I didn't say--sell it to him.' And, then we say 'ah ha' now that you've said that we're bringing in the officer who was out in the car and say, 'What did you hear on the wire?' Didn't you hear him say, 'I'll sell you twenty pounds of heroin.'... MS. CARPENETI interjected and said she was thinking of it more as a separate prosecution. REPRESENTATIVE CROFT noted that is possible too under evidentiary rule. It doesn't go to prove the truth of the matter, but to impeach the person who said it. MS. CARPENETI reiterated she was thinking of it more as a separate prosecution. It's probably safer to keep the bill as it is, but at a certain point it won't work if an officer is lost. Number 0652 REPRESENTATIVE CROFT asked Ms. Carpeneti whether he is right about the impeachment possibility, if there isn't a caveat in the bill. MS. CARPENETI said it couldn't be used in any circumstances under the bill the way it is drafted. Number 0680 REPRESENTATIVE KERTTULA wondered, if a defendant perjury himself, whether it can be used as impeachment since the evidence is suppressed because of a constitutional ruling. MS. CARPENETI said it can be used if there is a violation of a person's Miranda rights. Number 0728 CHAIRMAN KOTT stated it is the intent of the Chairman to hold the bill over until tomorrow [April 22, 1999]. HB 158 - NOTICE OF INS. CANCELLATION TO ELDERLY CHAIRMAN KOTT announced that the next order of business is HB 158, "An Act relating to the annual report of the director of the division of insurance and to notice of cancellation of personal insurance." CHAIRMAN KOTT indicated that the committee will take up CSHB 158(L&C), Version 1-LS0128\I. Number 0889 REPRESENTATIVE ROKEBERG, Sponsor of HB 158, explained that the bill would permit the Division of Insurance [Department of Commerce and Economic Development] to gather in-depth statistical information regarding health insurance policies. The bill would also provide a mechanism by which to inform Alaskan seniors of a missed insurance payment. Representative Rokeberg informed the committee that one of his constituents, an over 80-year-old man, was in a substantial automobile accident and did not realize that he had not paid his premium. REPRESENTATIVE ROKEBERG noted that the House Labor and Commerce Standing committee worked with the insurance industry in order to develop a compromise bill. The original bill required certified mailings. This bill covers personal insurance which includes property, casualty, automobile, and liability type insurance. Under HB 158, notification is provided to all insurers in Alaska that a person 70 years old or older has the right to designate a third party to receive notice of payment of premium and/or cancellation on three occasions per current statute. The industry is willing to send multiple notices for the three different statutory notification requirements. This is believed to be of lesser cost to the insurance industry and would not create a mandate as would requiring certified return receipt mailings. This bill is supported by a number of senior groups around the state. CHAIRMAN KOTT noted that the committee substitute elevates the age from 67 to 70. He asked Representative Rokeberg why that was changed. REPRESENTATIVE ROKEBERG informed the committee that testimony in the House Labor and Commerce Standing Committee from the Division of Motor Vehicles [Department of Administration] and senior groups revealed that the condition of dementia increases with age and becomes particularly acute around the age of 70. Therefore, rather than using the new social security age of 67, the age was raised to 70 which would include some 16,000 people. CHAIRMAN KOTT asked whether all of the personal insurance policies addressed in the bill require a person to provide his age. REPRESENTATIVE ROKEBERG stated the industry believes that information would be available due to underwriting purposes. CHAIRMAN KOTT asked whether that applies to homeowner's insurance. REPRESENTATIVE ROKEBERG noted that was discussed. The testimony indicated that the age information would be available and it would not be a burden on the insurance industry. If the insurance industry does not have this information, it will have to gather it. CHAIRMAN KOTT inquired as to why the certification and registered mail requirement was omitted. REPRESENTATIVE ROKEBERG explained that, currently, the insurance industry mails by certification with a computer printout and delivers the mail to the U.S. Post Office. That list is filed as their proof of mailing for cancellation. The insurance industry felt that if an individual certified mail, return receipt requested there would be fairly substantial fiscal note implications which would be passed on to the consumers. Representative Rokeberg did not want to, in the process of protecting people, end up raising their premiums. Number 1255 REPRESENTATIVE GREEN asked whether there would be any litigation caused later if a notice was sent to the designated recipient. REPRESENTATIVE ROKEBERG clarified that the notice would be sent to both parties. The insurance industry is mandated to inform an individual of the availability of this option in the regular notification. REPRESENTATIVE GREEN asked, if the insurance company fails to notify the bill payer, would that alleviate the fact that the elderly are not covered because the payments were not made. REPRESENTATIVE ROKEBERG stated that the level of notification has been increased. The desire is to avoid a situation in which the individual does not have coverage as was the case for Representative Rokeberg's constituent. He acknowledged that some coverages have grace periods. REPRESENTATIVE MURKOWSKI noted that there were discussions regarding grace periods in the House Labor and Commerce Standing Committee. She feels that if this is going to be done for personal insurance, it should also be done for life and health insurance as well. She informed the committee that typically, life insurance has an allowance for a grace period for reinstatement, which is not the case for personal insurance policies. CHAIRMAN KOTT pointed out that the committee packet includes a letter from the Alliance of American Insurers which indicates that homeowner's policies do not make any reference to the age of the insured. He said, "Is that just a 'red herring' that they are throwing up or would they change there way of doing business and require age to be recognized?" REPRESENTATIVE ROKEBERG deferred the question to Mr. George [lobbyist for the National Association of Independent Insurers]. REPRESENTATIVE KERTTULA indicated that there may be a language error in Section 2(1) of the committee substitute. REPRESENTATIVE ROKEBERG stated that the language was taken from existing law. Number 1498 JOHN GEORGE, Lobbyist for the National Association of Independent Insurers, informed the committee that it does not really matter whether the insurance company has the age of the individual in the file. This requires that everyone be offered a notice saying that if a person is 70 years of age or older, that person may request to be placed in the multiple notification program. At some point, there would have to be a determination that the individual requesting this multiple notification is actually age 70 or older. That information could be ascertained upon request of the program. Mr. George noted that this would apply primarily to homeowner's insurance, fire insurance, and auto insurance. REPRESENTATIVE MURKOWSKI asked whether it would be possible to request dual statements for individuals under the age of 70. MR. GEORGE noted that there are notices to lenders, however there is no statutory requirement for an insurance company to offer that. Mr. George assumed that some insurance companies would offer that service if requested. This legislation would require that the insurance company provide that notification if the individual is over the age of 70. Mr. George emphasized that insurance companies are not in the business of canceling insurance, but rather insurance companies are in the business of writing insurance. Insurance companies would like to keep a policy in effect once it is in effect. CHAIRMAN KOTT closed the meeting to public testimony. Number 1643 CHAIRMAN KOTT moved to report HB 158 [CSHB 158(L&C), Version 1-LS0128\I] out of committee with individual recommendations and accompanying zero fiscal notes. There being no objection, HB 158 was so moved from the House Judiciary Standing Committee. CHAIRMAN KOTT called for an at-ease at 3:12 p.m. and called the meeting back to order at 3:13 p.m. HB 28 - SURCHARGE ON FINES; YOUTH COURTS CHAIRMAN KOTT announced the next order of business is HB 28, "An Act imposing a surcharge on fines imposed for misdemeanors, infractions, and violations and authorizing disposition of estimated receipts from that surcharge; and creating the juvenile justice grant fund in order to provide financial assistance for the operation of youth courts." Number 1699 KATE AMPHAY, Intern, for Representative Eric Croft, Alaska State Legislature, came before the committee to present the sponsor statement. The bill is about a stable funding source for the youth courts throughout the state. It creates a juvenile justice grant fund which would provide $80,000 in matching grants to communities who would like to set up a youth court. The youth courts are worthwhile programs because they save $30,000 per defendant. An average of $9,000 is paid annually to the youth courts to compensate the victims of juvenile crimes. It's an effective way to deal with juvenile crime in communities. The youths who have committed crimes learn that if they had gone to an actual court the crime would become part of a record. Youth court gives them a second chance. In addition, those who participate in youth court as judges and attorneys have gone through a rigorous course taught by actual attorneys who volunteer their time. The Anchorage Youth Court handles about 500 cases per year. Of those 500 cases, there is a very low rate of recidivism - 11 percent. That means 89 percent of the completed cases are done successfully. She believes, that the participants in youth court learn certain skills that are valuable throughout their lives. She cited clear logical thinking as an example. Some who participate as a defendant decide to join the court and straighten out. That aside, it's one thing to say that the youth court is a successful program, but every successful program has room for growth to be even more successful. This committee is considering HB 151, which would give the youth courts the opportunity to hear alcohol-related cases. The point is, in order for this program to grow and take on more responsibilities, it needs to be supported. She reiterated the grant would provide a stable source of funding. She noted that there is some concern about whether or not the funds would infringe on the police training program. That is not the goal. The sponsor doesn't want to infringe upon those funds and is willing to work to ensure that the bill becomes an applicable piece of legislation. Number 2015 REPRESENTATIVE GREEN asked Ms. Amphay to clarify the 89 percent figure. MS. AMPHAY stated that 89 percent of the cases that are completed by youth courts are successful. The recidivism rate is 11 percent. The figures are based on a three-year span. She also noted that the youth courts model their system after the actual court system. Number 2065 CHAIRMAN KOTT pointed out that nine out of ten youths do not re-offend, according to the sponsor statement. The youth courts do not let anybody off on a technicality. Number 2078 MS. AMPHAY further noted that those who go through the youth courts participate in community service as part of their punishment, earn back the $50 that is charged to hear their case, and write letters-of-understanding to the victim(s). Number 2126 LINDA JOHNSON, Legal Advisor, Anchorage Youth Court (AYC), testified via teleconference from Anchorage. The money that the bill would create is needed by all the youth courts around the state. The AYC, currently, receives about $22,300 from the federal government in grants. However, the grant cannot be applied for next year because it has run its course. The AYC has been receiving about $110,000 from the municipality mostly as revenue sharing monies, which is in jeopardy. Today, without taking on new alcohol cases and without expanding staff - and it is understaffed - the AYC needs about $250,000 per year to run its program. She noted that the youth court in Kodiak would take more cases if it had more money. All the youth courts around the state are always scrambling to support themselves. Anchorage Youth Court has never asked for money from the state, and the state has never given any money. She noted that the intervention and education that the youth courts provide helps prevent re-offenders and takes a load off of the court system and probation officers. In effect, it tries to lessen the burden on the state. Number 2290 WENDY LEACH, Executive Director, North Star Youth Court, testified via teleconference from Fairbanks. The youth court in Fairbanks had an 8 percent recidivism rate for the first year and a half of its operation. That means 92 percent of the offenders did not come back through the program. All of the youth courts are always scrambling for funding. As a new program, the North Star Youth court started off in a small cabin. It continues to write grants for funding. A permanent source of funding is crucial to the continuing operation for all of the youth courts. Most of them are operating as nonprofit organizations and address prevention needs and early intervention. A permanent source of funding would not only secure the continued operation of the youth courts, but also work to establish additional ones. She cited Delta Junction is interested in starting a youth court. In addition, there is no way that the North Star Youth Court would be able to take on the consuming cases addressed in another House bill [HB 151], without additional funding. The youth who participate in the program go through an inordinate amount of hours of training, and the offenders who come through the program also serve as jurors, provide community work service hours, and provide a restoration to the victim(s). It is important to note that, in the absence of the North Star Youth Court, the youth who are being arrested at the misdemeanor level are at the most receiving a 30 to 45 minute conference with a juvenile probation officer, which is not adequate to meet the needs of these youths. When the youth court sees them... TAPE 99-37, SIDE B Number 0001 MS. LEACH continued. In Fairbanks, the youth court is handling a number of domestic violence cases. These are youth who have committed crimes against their mothers or grandmothers within their homes. She could go on about how it is important to offer a permanent source of funding for the continued operation and further establishment of youth courts throughout the state, but she would also like to let others testify. Number 0040 LISA MAKAR, Program Coordinator, Mat-Su Youth Court, testified via teleconference from Mat-Su. She wanted to plug all the adult attorneys who help the program and the public defender's office in the valley, which has almost single-handedly organized the volunteers. They work really hard and even on their weekends. It is so important to address the youth-in-trouble in the very beginning and to work on prevention and intervention. She worked at McLaughlin Youth Center for over ten years. She has seen both sides of the story. She knows that the first time a youth is arrested is a very important time. She asked the committee members to consider supporting the bill. Number 0097 MATT NEIL testified via teleconference from Anchorage. He noted that the 98-percent figure is accurate. He does the statistics for the youth courts and works with the Volunteers of America's youth restitution program. Over a three-year time frame, the youth courts have given over 25,000 hours to local nonprofit programs, and have paid over $23,000 directly to victims as restitution. It has been very successful. In addition, he noted that the Office of Juvenile Justice and Delinquency Prevention [U.S. Department of Justice] has indicated the importance of the immediate consequence and social response to an action. He strongly encouraged the committee members to support the bill. Number 0167 BILL EDWARDS testified via teleconference from Anchorage. He is a judge with the youth court program. It is the best program that he has been a part of in the city. It has taught him indelible lessons. It has given him many skills, which is a purpose of the youth courts as well. The recidivism rate speaks to the effect of the program, but in talking to the offenders, it really has had an effect on them. They care about what has been told to them. Number 0235 BLAIR McCUNE, Deputy Director, Central Office, Public Defender Agency, Department of Administration, waived his time to others wanting to testify. Number 0246 LADDIE SHAW, Executive Director, Alaska Police Standards Council, Department of Public Safety, testified via teleconference from Anchorage. He noted that the surcharge, in the current bill, is $25. CHAIRMAN KOTT stated that is correct. There is an amendment reducing it to $10. Number 0270 MR. SHAW explained his concern. The council has a surcharge of $50 for misdemeanor offenses when an incarceration may be imposed, and a surcharge of $10 for all other offenses and infractions. He is concerned that a $25 surcharge may do some harm to the collections of the council. CHAIRMAN KOTT said that is one of the reasons for the amendment. Number 0296 STUART BANNAN, Vice-President, Anchorage Youth Court Bar Association, testified via teleconference from Anchorage. He is also a judge. The youth courts are effective because they treat the offenders as people. They receive two defense attorneys and two prosecutors to represent the state. Even though they are criminals, they are people that can be rehabilitated. Number 0370 RANDALL PATTERSON, Vice President, Anchorage Youth Court Board of Directors, testified via teleconference from Anchorage. He is a former public defender and currently practices criminal defense cases. The criminal defense lawyer in him doesn't like the idea of having a client pay additional money at the end of a case. Often times, they don't have the money to pay and it becomes an additional burden. However, this particular surcharge is something that is needed for the reasons outlined earlier by Ms. Johnson. The Anchorage Youth Court is in danger of losing about one-half of its budget, so it's important to point out that the youth courts around the state provide a service that would have to be provided - or should be provided - by the state if the courts were not here. If they weren't here, that service would be provided by the Department of Health and Social Services and the court system. The youth courts save the state a lot of money and, therefore, the surcharge is a good idea. He asked the committee members to pass the bill out of the committee. Number 0485 ROBERT BUTTCANE, Juvenile Probation Officer, Youth Corrections, Division of Family and Youth Services, Department of Health and Social Services, came before the committee to testify. The department supports the bill and encourages the legislature to find any steady stream of funding for a very viable resource. Number 0516 CHAIRMAN KOTT closed the meeting to public testimony. Number 0528 REPRESENTATIVE CROFT made a motion to move Amendment 1 [1-LS0212\A.1, Luckhaupt, 2/22/99]. There being no objection, it was so adopted. It reads as follows: Page 2, line 24: Delete "$25" Insert "$10" Number 0548 REPRESENTATIVE GREEN made a motion to move HB 28, as amended, from the committee with individual recommendations and the attached fiscal note(s). There being no objection, CSHB 28(JUD) was so moved from the House Judiciary Standing Committee. ADJOURNMENT Number 0570 CHAIRMAN KOTT adjourned the House Judiciary Standing Committee meeting at 3:45 p.m.