Legislature(1999 - 2000)

03/27/2000 01:20 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
         HOUSE JUDICIARY STANDING COMMITTEE                                                                                     
                   March 27, 2000                                                                                               
                     1:20 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. 367                                                                                                              
"An Act providing for the revocation of driving privileges by a                                                                 
court for a driver convicted of a violation of traffic laws in                                                                  
connection with a fatal motor vehicle or commercial motor vehicle                                                               
accident; and amending Rules 43 and 43.1, Alaska Rules of                                                                       
Administration."                                                                                                                
                                                                                                                                
     - MOVED HB 367 OUT OF COMMITTEE                                                                                            
                                                                                                                                
HOUSE BILL NO. 435                                                                                                              
"An Act making corrective amendments to the Alaska Statutes as                                                                  
recommended by the revisor of statutes; and providing for an                                                                    
effective date."                                                                                                                
                                                                                                                                
     - MOVED CSHB 435(JUD) OUT OF COMMITTEE                                                                                     
                                                                                                                                
HOUSE BILL NO. 372                                                                                                              
"An Act relating to criminal sentencing and restitution."                                                                       
                                                                                                                                
     - MOVED CSHB 372(JUD) OUT OF COMMITTEE                                                                                     
                                                                                                                                
HOUSE BILL NO. 325                                                                                                              
"An Act relating to priorities, claims, and liens for payment for                                                               
certain medical services provided to medical assistance recipients;                                                             
and providing for an effective date."                                                                                           
                                                                                                                                
     - MOVED CSHB 325(JUD) OUT OF COMMITTEE                                                                                     
                                                                                                                                
HOUSE JOINT RESOLUTION NO. 53                                                                                                   
Proposing amendments to the Constitution of the State of Alaska                                                                 
relating to a preference for taking wildlife for human consumption.                                                             
                                                                                                                                
     - MOVED CSHJR 53(JUD) OUT OF COMMITTEE                                                                                     
                                                                                                                                
PREVIOUS ACTION                                                                                                                 
                                                                                                                                
BILL: HB 367                                                                                                                    
SHORT TITLE: REVOCATION OF DRIVING PRIVILEGES                                                                                   
                                                                                                                                
Jrn-Date    Jrn-Page           Action                                                                                           
 2/11/00      2180     (H)  READ THE FIRST TIME - REFERRALS                                                                     
 2/11/00      2180     (H)  STA, JUD, FIN                                                                                       
 2/11/00      2180     (H)  INDETERMINATE FISCAL NOTE (ADM)                                                                     
 2/11/00      2180     (H)  2 ZERO FISCAL NOTES (LAW, DPS)                                                                      
 2/11/00      2180     (H)  GOVERNOR'S TRANSMITTAL LETTER                                                                       
 2/22/00               (H)  STA AT  8:00 AM CAPITOL 102                                                                         
 2/22/00               (H)  Scheduled But Not Heard                                                                             
 2/29/00               (H)  STA AT  8:00 AM CAPITOL 102                                                                         
 2/29/00               (H)  Scheduled But Not Heard                                                                             
 3/02/00               (H)  STA AT  8:00 AM CAPITOL 102                                                                         
 3/02/00               (H)  Scheduled But Not Heard                                                                             
 3/07/00               (H)  STA AT  8:00 AM CAPITOL 102                                                                         
 3/07/00               (H)  Moved Out of Committee                                                                              
 3/07/00               (H)  MINUTE(STA)                                                                                         
 3/08/00      2451     (H)  STA RPT 2DP 1DNP 3NR                                                                                
 3/08/00      2451     (H)  DP: KERTTULA, SMALLEY; DNP: GREEN;                                                                  
 3/08/00      2451     (H)  NR: JAMES, HUDSON, OGAN                                                                             
 3/08/00      2451     (H)  INDETERMINATE FISCAL NOTE(ADM)                                                                      
                            2/11/00                                                                                             
 3/08/00      2451     (H)  2 ZERO FISCAL NOTES (LAW, DPS)                                                                      
                            2/11/00                                                                                             
 3/27/00               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
                                                                                                                                
BILL: HB 435                                                                                                                    
SHORT TITLE: REVISOR'S BILL                                                                                                     
                                                                                                                                
Jrn-Date    Jrn-Page           Action                                                                                           
 3/20/00      2612     (H)  READ THE FIRST TIME - REFERRALS                                                                     
 3/20/00      2612     (H)  JUD                                                                                                 
 3/27/00               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
                                                                                                                                
BILL: HB 372                                                                                                                    
SHORT TITLE: COMMUNITY BASED SENTENCING                                                                                         
                                                                                                                                
Jrn-Date    Jrn-Page           Action                                                                                           
 2/11/00      2184     (H)  READ THE FIRST TIME - REFERRALS                                                                     
 2/11/00      2184     (H)  JUD, FIN                                                                                            
 3/06/00               (H)  JUD AT  2:15 PM CAPITOL 120                                                                         
 3/06/00               (H)  Heard & Held                                                                                        
 3/06/00               (H)  MINUTE(JUD)                                                                                         
 3/27/00               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
                                                                                                                                
BILL: HB 325                                                                                                                    
SHORT TITLE: MEDICAL ASSISTANCE:LIENS & CLAIMS                                                                                  
                                                                                                                                
Jrn-Date    Jrn-Page           Action                                                                                           
 2/02/00      2061     (H)  READ THE FIRST TIME - REFERRALS                                                                     
 2/02/00      2061     (H)  HES, JUD, FIN                                                                                       
 2/02/00      2061     (H)  FISCAL NOTE (DHSS)                                                                                  
 2/02/00      2061     (H)  GOVERNOR'S TRANSMITTAL LETTER                                                                       
 2/24/00               (H)  HES AT  3:00 PM CAPITOL 106                                                                         
 2/24/00               (H)  Moved CSHB 325(HES) Out of Committee                                                                
 2/24/00               (H)  MINUTE(HES)                                                                                         
 2/28/00      2329     (H)  HES RPT CS(HES) 2DP 4NR                                                                             
 2/28/00      2329     (H)  DP: GREEN, DYSON; NR: WHITAKER,                                                                     
 2/28/00      2329     (H)  COGHILL, BRICE, KEMPLEN                                                                             
 2/28/00      2329     (H)  FISCAL NOTE (DHSS) 2/2/00                                                                           
 3/27/00               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
                                                                                                                                
BILL: HJR 53                                                                                                                    
SHORT TITLE: CONST AM: WILD FOOD RESOURCES                                                                                      
                                                                                                                                
Jrn-Date    Jrn-Page           Action                                                                                           
 2/07/00      2114     (H)  READ THE FIRST TIME - REFERRALS                                                                     
 2/07/00      2115     (H)  RES, JUD, FIN                                                                                       
 2/09/00      2155     (H)  COSPONSOR(S): DYSON                                                                                 
 2/21/00      2259     (H)  COSPONSOR(S): HARRIS                                                                                
 2/28/00               (H)  RES AT  1:00 PM CAPITOL 124                                                                         
 2/28/00               (H)  Moved CSHJR 53(RES) Out of Committee                                                                
 2/28/00               (H)  MINUTE(RES)                                                                                         
 3/01/00      2352     (H)  RES RPT CS(RES) NT 5DP 2NR 2AM                                                                      
 3/01/00      2352     (H)  DP: COWDERY, BARNES, MORGAN,                                                                        
                            WHITAKER,                                                                                           
 3/01/00      2352     (H)  MASEK; NR: JOULE, KAPSNER;                                                                          
                            AM: HARRIS,                                                                                         
 3/01/00      2352     (H)  HUDSON                                                                                              
 3/01/00      2352     (H)  FISCAL NOTE (GOV)                                                                                   
 3/20/00               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
 3/20/00               (H)  Heard & Held                                                                                        
 3/20/00               (H)  MINUTE(JUD)                                                                                         
 3/27/00               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
                                                                                                                                
WITNESS REGISTER                                                                                                                
                                                                                                                                
ANNE CARPENETI, Assistant Attorney General                                                                                      
Legal Services Section - Juneau                                                                                                 
Criminal Division                                                                                                               
Department of Law                                                                                                               
PO Box 110300                                                                                                                   
Juneau, Alaska 99811-0300                                                                                                       
POSITION STATEMENT:  Presented HB 367.                                                                                          
                                                                                                                                
MARK CAMPBELL                                                                                                                   
No address provided.                                                                                                            
Palmer, Alaska                                                                                                                  
POSITION STATEMENT:  Related his experience regarding the subject                                                               
of HB 367, which he stated is a good bill.                                                                                      
                                                                                                                                
PAMELA FINLEY, Revisor of Statutes                                                                                              
Legislative Legal Counsel                                                                                                       
Legislative Legal and Research Services                                                                                         
Legislative Affairs Agency                                                                                                      
129 Sixth Street, Room 329                                                                                                      
Juneau, Alaska 99801                                                                                                            
POSITION STATEMENT:  Presented HB 435.                                                                                          
                                                                                                                                
PETER TORKELSON, Staff to Representative Dyson                                                                                  
Alaska State Legislature                                                                                                        
Capitol Building, Room 104                                                                                                      
Juneau, Alaska  99801                                                                                                           
POSITION STATEMENT:  Presented HB 372 on behalf of the sponsor.                                                                 
                                                                                                                                
BLAIR McCUNE, Deputy Director                                                                                                   
Public Defender Agency                                                                                                          
Department of Administration                                                                                                    
900 West 5th Avenue, Suite 200                                                                                                  
Anchorage, Alaska  99501-2090                                                                                                   
POSITION STATEMENT:  Testified on HB 372; had not seen latest                                                                   
version but approved of having "with the consent of the victim" on                                                              
line 6, and would have no problem with including language [to                                                                   
protect against] any undue influence on the victim.                                                                             
                                                                                                                                
LAUREE HUGONIN, Director                                                                                                        
Alaska Network on Domestic Violence and Sexual Assault                                                                          
130 Seward Street, Room 209                                                                                                     
Juneau, Alaska 99801                                                                                                            
POSITION STATEMENT:  Testified on HB 372, Version D; expressed                                                                  
concern with only limiting the exclusion to AS 11.41, and suggested                                                             
adding crimes involving domestic violence, as defined in AS                                                                     
18.66.990.                                                                                                                      
                                                                                                                                
JON SHERWOOD                                                                                                                    
Division of Medical Assistance                                                                                                  
Department of Health & Social Services                                                                                          
P.O. Box 110660                                                                                                                 
Juneau, Alaska  99811-0660                                                                                                      
POSITION STATEMENT:  Reviewed the changes to statute encompassed in                                                             
HB 325.                                                                                                                         
                                                                                                                                
LISA KIRSCH, Assistant Attorney General                                                                                         
Human Services Section                                                                                                          
Civil Division (Juneau)                                                                                                         
Department of Law                                                                                                               
PO Box 110300                                                                                                                   
Juneau, Alaska 99811-0300                                                                                                       
POSITION STATEMENT:  Discussed subrogation rights in reference to                                                               
HB 325.                                                                                                                         
                                                                                                                                
LEONARD ANDERSON                                                                                                                
Division of Medical Assistance                                                                                                  
Department of Health & Social Services                                                                                          
405 West 36th Avenue, Number 200                                                                                                
Anchorage, Alaska 99517                                                                                                         
POSITION STATEMENT:  Discussed HB 325 and its implementation.                                                                   
                                                                                                                                
EDDIE GRASSER, Staff                                                                                                            
   to Representative Masek                                                                                                      
Alaska State Legislature                                                                                                        
Capitol Building, Room 128                                                                                                      
Juneau, Alaska  99801                                                                                                           
POSITION STATEMENT:  Testified on behalf of the sponsor of HJR 53.                                                              
                                                                                                                                
DICK BISHOP, Vice President                                                                                                     
Alaska Outdoor Council                                                                                                          
211 Fourth Street, 302A                                                                                                         
Juneau, Alaska 99801                                                                                                            
POSITION STATEMENT:  Testified in support of HJR 53, Version K.                                                                 
                                                                                                                                
ACTION NARRATIVE                                                                                                                
                                                                                                                                
TAPE 00-39, SIDE A                                                                                                              
Number 0001                                                                                                                     
                                                                                                                                
CHAIRMAN PETE KOTT called the House Judiciary Standing Committee                                                                
meeting to order at 1:20 p.m.  Members present at the call to order                                                             
were Representatives Kott, Green, Murkowski and Kerttula.                                                                       
Representatives Croft, James and Rokeberg arrived as the meeting                                                                
was in progress.  [Although discussion implied that Representative                                                              
James was present at the call to order, she actually arrived as the                                                             
meeting was in progress; Representative Rokeberg joined the final                                                               
portion of the hearing after the meeting was reconvened.]                                                                       
                                                                                                                                
HB 367 - REVOCATION OF DRIVING PRIVILEGES                                                                                       
                                                                                                                                
CHAIRMAN KOTT announced that the first order of business would be                                                               
HOUSE BILL NO. 367, "An Act providing for the revocation of driving                                                             
privileges by a court for a driver convicted of a violation of                                                                  
traffic laws in connection with a fatal motor vehicle or commercial                                                             
motor vehicle accident; and amending Rules 43 and 43.1, Alaska                                                                  
Rules of Administration."                                                                                                       
                                                                                                                                
Number 0115                                                                                                                     
                                                                                                                                
ANNE CARPENETI, Assistant Attorney General, Legal Services Section                                                              
- Juneau, Criminal Division, Department of Law, informed the                                                                    
committee that the problem that HB 367 addresses occurs maybe six                                                               
to eight times a year in Alaska.  She explained that perhaps a                                                                  
driver dozes and crosses the center line or accidentally slides                                                                 
through a stoplight and is in a traffic accident that results in                                                                
the death of a person.  The driving is not such that it would rise                                                              
to a culpable criminally negligent state; the person could not be                                                               
charged with criminally negligent homicide or any crime involving                                                               
the accident.  Currently, the person may be cited for crossing the                                                              
center line and the traffic offense; this is difficult for the                                                                  
family of the victim who was killed and not at fault in any way.                                                                
Ms. Carpeneti explained that the problem is that it cannot be                                                                   
proven beyond a reasonable doubt that the person drove with a                                                                   
culpable mental state that rises to criminal negligence, which is                                                               
the lowest culpable mental state for crimes in the state.                                                                       
Therefore, HB 367 was proposed.                                                                                                 
                                                                                                                                
MS. CARPENETI informed members that HB 367 provides that if a                                                                   
person cited for a moving traffic violation in connection with a                                                                
fatal accident is convicted beyond a reasonable doubt of the cited                                                              
offense, and if the court finds that the accident contributed to                                                                
the death of a person, then the person cited for the moving traffic                                                             
violation should have his/her driver's license revoked for one                                                                  
year.                                                                                                                           
                                                                                                                                
Number 0250                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN informed the committee that 30 years or so                                                                 
ago, he was driving up about a two-mile grade in the center of                                                                  
three lanes.  In the far right lane there was a slow moving,                                                                    
improperly lit semi-truck.  Upon looking in the rearview mirror,                                                                
Representative  Green could see that there were two cars racing.                                                                
As those cars approached Representative Green's car, the car                                                                    
approaching in the far-left lane sped around him, while the car                                                                 
approaching from behind swerved so close that Representative Green                                                              
had to swerve and ended up hitting the aforementioned semi-truck in                                                             
the rear.  Upon impact, the tongue of the semi-truck went through                                                               
the windshield and hit the seat where the passenger would have                                                                  
been.  Indeed, he noted, he was supposed to have had a passenger.                                                               
Representative Green informed the committee that he was cited for                                                               
improper passing.  He asked if he would have been cited had the                                                                 
passenger been present and killed.  In response to Ms. Carpeneti,                                                               
Representative Green answered that he did not appeal the charge and                                                             
thus was convicted by default.                                                                                                  
                                                                                                                                
MS. CARPENETI pointed out that under HB 367, Representative Green                                                               
would have had the right to a jury trial.  With regard to whether                                                               
Representative Green would have been cited had the passenger been                                                               
present and killed, Ms. Carpeneti specified that it would depend                                                                
upon the circumstances.  She further specified that Representative                                                              
Green would have to have been convicted beyond a reasonable doubt                                                               
of the citation and the court would have to have found, by a                                                                    
preponderance of the evidence, that the violation for which                                                                     
Representative Green had been cited had contributed to the death of                                                             
the person.                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN commented, "Wouldn't that all apply, though?                                                               
I mean, I have no witnesses."  He acknowledged that he himself was                                                              
a witness, but said, "I'm going to say that I didn't run into this                                                              
guy or that somebody forced me off [the road] and they're gone."                                                                
                                                                                                                                
MS. CARPENETI replied yes.  In response to whether that would do                                                                
any good, Ms. Carpeneti affirmed that.                                                                                          
                                                                                                                                
REPRESENTATIVE GREEN noted that his lawyer in that instance had                                                                 
advised him that it would not be worth his time [to fight the                                                                   
charge].                                                                                                                        
                                                                                                                                
MS. CARPENETI responded that if this bill had been in effect, then                                                              
Representative Green's lawyer would have advised him to move                                                                    
forward to litigate the traffic citation.  She added that she would                                                             
have been surprised if Representative green would have been                                                                     
convicted under those circumstances because he was not at fault.                                                                
                                                                                                                                
Number 0469                                                                                                                     
                                                                                                                                
REPRESENTATIVE JAMES asked how Alaska's law compares with Oregon's                                                              
law regarding the basic speed rule.  She explained that [in Oregon]                                                             
if one has an accident that could be attributed to the person's not                                                             
watching or driving at an inappropriate speed, the person would be                                                              
guilty of violation of the basic speed law.  She indicated that the                                                             
basic speed law is all-inclusive.                                                                                               
                                                                                                                                
MS. CARPENETI stated that she is not familiar with Oregon's basic                                                               
speed rule.  She did not believe that people in Alaska are cited                                                                
for basic speed [violations] unless an officer believes that a                                                                  
person was going faster than the conditions would warrant to be                                                                 
safe.  Furthermore, a person cannot be convicted unless a court                                                                 
makes that determination based on evidence presented beyond a                                                                   
reasonable doubt.                                                                                                               
                                                                                                                                
REPRESENTATIVE MURKOWSKI turned attention to the limited license.                                                               
She asked:  If it can be established that a person's' ability to                                                                
earn a livelihood would be severely impaired without a limited                                                                  
license, are there standards regarding what constitutes severe                                                                  
impairment to one's livelihood?                                                                                                 
                                                                                                                                
MS. CARPENETI answered that it is a fairly common procedure in                                                                  
which the court would make the determination.  Usually a severe                                                                 
impairment would arise when the person has no access to public                                                                  
transportation or if it is impractical to obtain a ride from                                                                    
someone.  She agreed with Representative Murkowski that it is a                                                                 
case-by-case determination.                                                                                                     
                                                                                                                                
Number 0653                                                                                                                     
                                                                                                                                
REPRESENTATIVE JAMES asked whether losing a driver's license for                                                                
one year is punishment or an attempt to keep an unsafe driver off                                                               
the road.                                                                                                                       
                                                                                                                                
MS. CARPENETI said she believes the main purpose of this is to keep                                                             
an unsafe driver off the road, although part of the purpose is                                                                  
punishment.                                                                                                                     
                                                                                                                                
REPRESENTATIVE JAMES surmised, then, that this temporary license                                                                
does not keep this individual [an unsafe driver] off the road.                                                                  
                                                                                                                                
MS. CARPENETI clarified that the court has to make a determination                                                              
that the limited license will not endanger the public.  If that                                                                 
determination cannot be made, then the person is not granted a                                                                  
limited license.                                                                                                                
                                                                                                                                
REPRESENTATIVE KERTTULA pointed out that limited licenses are often                                                             
limited to the time of day when the individual needs to drive to                                                                
work.                                                                                                                           
                                                                                                                                
MS. CARPENETI agreed.  She specified that a limited license would                                                               
be for use during, say, 7:30 a.m. to 8:00 a.m. and 4:30 p.m. to                                                                 
5:00 p.m.  Nor is a limited license automatically granted.  The                                                                 
individual must convince the judge that he or she would not                                                                     
endanger the public by driving during those limited hours.                                                                      
                                                                                                                                
REPRESENTATIVE GREEN expressed concern regarding the courts'                                                                    
handling of DUIs [charges of driving under the influence].  He                                                                  
realizes that the court cannot bring the accusation, he said, but                                                               
he has observed cases in which people have lost their license.  In                                                              
three cases he observed that each time these individuals were                                                                   
brought up on DUI charges - and there were multiple times - these                                                               
individuals plea bargained down to a lesser offense.                                                                            
Representative Green stressed that these individuals are a menace                                                               
on the highway.  He asked if the same situation would occur under                                                               
this legislation.                                                                                                               
                                                                                                                                
MS. CARPENETI remarked that she would have to know the individual                                                               
facts of those cases.  She acknowledged that it is discouraging for                                                             
people to observe cases being plea bargained down, and she noted                                                                
that [the department] takes DUI charges very seriously.  Ms.                                                                    
Carpeneti stated that the purpose of this [bill] is to have                                                                     
significant consequences under these circumstances, and therefore                                                               
she would not say [that the same situation would occur under this                                                               
bill].                                                                                                                          
                                                                                                                                
REPRESENTATIVE GREEN expressed his belief that a habitual drunk who                                                             
consistently beats the system is a menace.  He informed everyone                                                                
that the prosecuting attorney [of these aforementioned DUI cases]                                                               
had told him that he had too many cases and thus plea bargaining                                                                
was a much easier road.  He commented, "That was disgusting."                                                                   
                                                                                                                                
MS. CARPENETI agreed.  She pointed out that a person convicted of                                                               
a DWI/DUI can have his/her license taken under other statutory                                                                  
procedures.                                                                                                                     
                                                                                                                                
Number 0957                                                                                                                     
                                                                                                                                
REPRESENTATIVE MURKOWSKI posed a situation in which a commercial                                                                
truck driver, through whatever reason, has [had an accident] in                                                                 
which a death resulted.  She surmised that this statute would                                                                   
require the license of the commercial truck driver to be taken.  In                                                             
and of itself, the license being taken is substantial punishment in                                                             
that the person is losing the ability to earn a livelihood.  She                                                                
asked if this punishment, revocation of license for one year, is                                                                
taken into account and, perhaps, the jail time for manslaughter is                                                              
lessened.  She also asked if double jeopardy would exist.                                                                       
                                                                                                                                
MS. CARPENETI pointed out that the purpose of HB 367 is to provide                                                              
consequences when a person cannot be charged with manslaughter or                                                               
any other crime in connection with the traffic accident.                                                                        
                                                                                                                                
REPRESENTATIVE MURKOWSKI surmised, then, that two different forms                                                               
of punishment would not result.                                                                                                 
                                                                                                                                
MS. CARPENETI replied no.  This is for use in those cases in which                                                              
[the driving is not such that it rises to] a criminally culpable                                                                
mental state in the driving, but the person was careless.                                                                       
                                                                                                                                
Number 1106                                                                                                                     
                                                                                                                                
MARK CAMPBELL testified via teleconference from Palmer.  He noted                                                               
that Representative Ogan, his representative, had informed him of                                                               
HB 367.  Mr. Campbell related his experience with this issue in                                                                 
which his son was killed in a car accident six years ago.  Of the                                                               
six people in the car, two were killed and four were injured when                                                               
a seventeen-year-old was speeding, lost control of the vehicle and                                                              
entered the lane of oncoming traffic.  Within a week the young man                                                              
was driving a new truck.  Mr. Campbell saw this young man drive                                                                 
through an intersection without heeding the light, which was                                                                    
brought out in court.  In this situation, the maximum that the                                                                  
judge could charge was $50 per person injured, which resulted in a                                                              
$300 fine.  Therefore, Mr. Campbell had requested that the young                                                                
man work off that fine through community service rather than merely                                                             
pay the fine, which the judge granted.  However, a little over a                                                                
year later this young man was involved in a one car accident in                                                                 
which two other young lives were taken.  Perhaps, if more could                                                                 
have been done, this young man may have viewed his driving                                                                      
privilege differently.  Mr. Campbell felt that the system had                                                                   
failed.                                                                                                                         
                                                                                                                                
MR. CAMPBELL turned to HB 367.  He commented that HB 367 seems to                                                               
leave room for the judge to allow the individual to work while                                                                  
placing beneficial limitations on the individual.  He clarified                                                                 
that [this would be appropriate] in a circumstance such as this.                                                                
In conclusion, Mr. Campbell stated that HB 367 is a good bill that                                                              
addresses the situation where a person acts unreasonably and yet is                                                             
not criminally negligent in the sense of intent.  He noted that                                                                 
parents who have lost children [in similar accidents] have                                                                      
contacted him and related the same experience with regard to the                                                                
individual not feeling the weight of his or her unreasonable                                                                    
actions.                                                                                                                        
                                                                                                                                
Number 1384                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN inquired as to whether drugs and/or alcohol                                                                
were involved in either case involving this young man.  He further                                                              
inquired as to the disposition of this young man now.                                                                           
                                                                                                                                
MR. CAMPBELL said that in his son's case there were no drugs or                                                                 
alcohol involved.  In the second accident, there was beer in the                                                                
vehicle; however, he did not know whether there was an alcohol                                                                  
[test].  In further response to Representative Green, Mr. Campbell                                                              
informed the committee that this young man is driving now.                                                                      
                                                                                                                                
CHAIRMAN KOTT asked if there was anyone else who wished to testify.                                                             
There being no one, public testimony was closed.                                                                                
                                                                                                                                
Number 1476                                                                                                                     
                                                                                                                                
REPRESENTATIVE MURKOWSKI moved to report HB 367 out of committee                                                                
with individual recommendations and the accompanying three fiscal                                                               
notes.  There being no objection, it was so ordered and HB 367 was                                                              
reported from the House Judiciary Standing Committee.                                                                           
                                                                                                                                
HB 435 - REVISOR'S BILL                                                                                                         
                                                                                                                                
CHAIRMAN KOTT announced that the next order of business would be                                                                
HOUSE BILL NO. 435, "An Act making corrective amendments to the                                                                 
Alaska Statutes as recommended by the revisor of statutes; and                                                                  
providing for an effective date."                                                                                               
                                                                                                                                
Number 1538                                                                                                                     
                                                                                                                                
PAMELA FINLEY, Revisor of Statutes, Legislative Legal Counsel,                                                                  
Legislative Legal and Research Services, Legislative Affairs                                                                    
Agency, informed the committee that this bill is prepared every                                                                 
year pursuant to statute.  The bill is introduced through the                                                                   
Legislative Council and is primarily a cleanup bill.  She pointed                                                               
out that HB 435 primarily has changes in nomenclature, conforming                                                               
federal references to new laws.  There should be no policy changes                                                              
in HB 435 and there are not really any substantive changes either.                                                              
                                                                                                                                
MS. FINLEY referred the committee to page 3, Section 7, which would                                                             
authorize banks to own real or personal property in connection with                                                             
a negatively amortizing loan.  She explained that several years ago                                                             
the legislature amended the interest statute in order to allow                                                                  
negatively amortizing loans.  She understood this to essentially                                                                
allow people who are terminally ill or elderly to stay in their                                                                 
homes and receive the money from their homes.  "In order to do                                                                  
that, I am told, the bank needs to own the property and that                                                                    
statute was not amended."  Essentially, Section 7 allows the policy                                                             
determined by the legislature several years ago to go into effect.                                                              
                                                                                                                                
MS. FINLEY pointed out that HB 435 has an error.  On page 4, line                                                               
3, the word "loan" should be bracketed, and on page 4, line 4,                                                                  
"[LOAN]" should not be bracketed.  She noted that the bill packet                                                               
should include an amendment to rectify this error.                                                                              
                                                                                                                                
CHAIRMAN KOTT announced that [the aforementioned correction] would                                                              
be accepted as a technical amendment.                                                                                           
                                                                                                                                
Number 1680                                                                                                                     
                                                                                                                                
REPRESENTATIVE MURKOWSKI noted that this committee has had several                                                              
discussions with regard to the political correctness of certain                                                                 
terminology, specifically that of "chairman."  She asked how this                                                               
is handled in the statutes.                                                                                                     
                                                                                                                                
MS. FINLEY said that in new bills she tries to make sure that the                                                               
language used is "chair" because that seems to be the common                                                                    
[terminology] and most people can distinguish between the furniture                                                             
and the person.  She a noted that "chairperson" is an alternative.                                                              
She recalled that in 1982 the legislature passed a law instructing                                                              
[the legislature] to avoid personal pronouns, which she took to                                                                 
mean to avoid "chairman."  In other words, [the intent] was to use                                                              
sex neutral language to the extent possible.  However, there are                                                                
plenty of references to "chairman" left over in old law from the                                                                
1960s.  She said, "I have thought about it.  I have in my suspense                                                              
file 'a go through and do a revisor's bill that changes them all,'                                                              
but there are people, I think, in this legislature who would not                                                                
like that."  She commented that she would be willing to introduce                                                               
such legislation, but she did not feel the need to "pick fights"                                                                
over that.                                                                                                                      
                                                                                                                                
Number 1819                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN moved to report HB 435 out of committee with                                                               
individual recommendations.                                                                                                     
                                                                                                                                
CHAIRMAN KOTT interjected that the aforementioned correction would                                                              
be recognized as a technical amendment, labeled Amendment 1.                                                                    
Chairman Kott asked if there were any objections [to reporting HB
435 as amended out of committee].  There being no objection, it was                                                             
so ordered and CSHB 435(JUD) was reported from the House Judiciary                                                              
Standing Committee.                                                                                                             
                                                                                                                                
HB 372 - COMMUNITY BASED SENTENCING                                                                                             
                                                                                                                                
CHAIRMAN KOTT announced that the next order of business would be                                                                
HOUSE BILL NO. 372, "An Act relating to criminal sentencing and                                                                 
restitution."  He noted that there was a new proposed committee                                                                 
substitute (CS), Version D.                                                                                                     
                                                                                                                                
Number 1910                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN made a motion to adopt the proposed CS for HB
372, version 1-LS142\D, Luckhaupt, 3/8/00, as the working document                                                              
before the committee.  There being no objection, it was so ordered                                                              
and Version D was before the committee.                                                                                         
                                                                                                                                
PETER TORKELSON, Staff to Representative Dyson, Alaska State                                                                    
Legislature, explained that Version D attempts to address several                                                               
concerns raised when the bill was previously before this committee.                                                             
One concern surrounds whether the bill may create a situation in                                                                
which a victim goes into negotiation with an offender when the                                                                  
situation isn't conducive to a real negotiation.  Version D                                                                     
addresses this in two ways.  First, on page 1, line 6, the language                                                             
"with the consent of the victim" was inserted to make it clear that                                                             
the victim must consent to the process from the beginning.  Second,                                                             
on page 1, lines 10-12, a new sentence was inserted that reads as                                                               
follows:  "Before accepting a negotiated agreement, the court shall                                                             
determine that the victim has not been unduly influenced or                                                                     
intimidated in reaching the agreement."  Although experience in                                                                 
other states has shown that courts are very sensitive to this, Mr.                                                              
Torkelson said, it was felt that it would be best to be clear.                                                                  
                                                                                                                                
MR. TORKELSON noted that there was also concern that this bill                                                                  
might circumvent the presumptive sentencing guidelines that are                                                                 
specified.  To his understanding, presumptive sentencing applies to                                                             
unclassified felonies, class A felonies and second-time [class] B                                                               
or C felonies.  He specified that by saying that no violations of                                                               
AS 11.41 would be considered for this, the intent is that no                                                                    
person-to-person violent crime is ever to be considered.                                                                        
Therefore, it eliminates most of the presumptive sentencing                                                                     
[issues].  Regarding concerns that this bill would undo the "Chaney                                                             
doctrine," he directed the committee to the language on page 1,                                                                 
lines 8-9, which read, "if that sentence otherwise complies with                                                                
this chapter".  He said that sentence should cover some of those                                                                
concerns because this is a simple, optional addition that the court                                                             
may consider in the appropriate circumstance.                                                                                   
                                                                                                                                
MR. TORKELSON informed the committee that since this bill was last                                                              
heard, the Chief Justice had referred, in his State of the                                                                      
Judiciary [address], to restorative justice and a program that is                                                               
currently happening, at the impetus of the court system, in what is                                                             
called "circle" sentencing.  The Chief Justice had mentioned                                                                    
Magistrate Jackson (ph), who has utilized "circle" sentencing in                                                                
approximately 20 cases and has seen some benefits to that program.                                                              
Mr. Torkelson stressed that this is happening now.  The sponsor                                                                 
feels that this is an important enough issue that the legislature                                                               
should make a statement endorsing an effort in this direction, he                                                               
said, in order to determine whether it is worth pursuing.                                                                       
                                                                                                                                
Number 2141                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN asked whether this [legislation] is viewed -                                                               
by the sponsor or any of the attorneys to which he has spoken - as                                                              
compromising any types of alternative sentencing or victims'                                                                    
rights.                                                                                                                         
                                                                                                                                
MR. TORKELSON answered that restorative justice is sort of a                                                                    
culmination of a number of movements in the criminal justice system                                                             
for some time; victims' rights is an issue that the legislature had                                                             
dealt with not many years ago.  This legislation is actually the                                                                
next step, in a sense, in victims' rights in that it allows the                                                                 
victim, in the right situation and if everyone consents, to sit                                                                 
down with the offender.  Experience in other states has shown that                                                              
following these experiences, offenders often are less likely to                                                                 
reoffend and victims feel that they can start down a path towards                                                               
a normal life again.  Mr. Torkelson said to the sponsor's belief,                                                               
part of the state's role is to "service" the victim as well as the                                                              
offender.  He referred to Representative Green's question and said                                                              
no, this is actually the next step and an ultimate form of                                                                      
recognition of the rights and the voice of the victim.                                                                          
                                                                                                                                
Number 2341                                                                                                                     
                                                                                                                                
REPRESENTATIVE KERTTULA asked whether [Mr. Torkelson and the                                                                    
sponsor] had thought of using this model for just misdemeanors or                                                               
alcohol-related crimes to begin with.  Most of her own concerns                                                                 
relate to using it in the "felony setting," she noted, and she is                                                               
glad to see assaults no longer included because there is an                                                                     
inequitable situation there that is hard to sort through.                                                                       
Suggesting that Anne Carpeneti could comment, she conveyed her                                                                  
understanding that presumptive sentencing isn't just for assaults                                                               
but goes across a panoply of burglaries, breaking and entering, and                                                             
theft.  She acknowledged that people who have had something stolen                                                              
from them may feel just as violated.  She noted that the magistrate                                                             
discussed by the Chief Justice had done this mostly for                                                                         
misdemeanors and alcohol-related crimes.                                                                                        
                                                                                                                                
MR. TORKELSON responded:                                                                                                        
                                                                                                                                
     We've had considerable discussion with the Department of                                                                   
     Law and amongst ourselves about this.  We are aware that                                                                   
     the Department of Law still objects to the bill primarily                                                                  
     for that reason, the felony issue. ... There are a number                                                                  
     of felonies that could potentially fall under this that                                                                    
     are non-person-to-person type of crimes, property crimes,                                                                  
     that would [be classified] as a felony; ... if you steal                                                                   
     more than $500, that's a felony.                                                                                           
                                                                                                                                
     And in our discussions, the sponsor just isn't really                                                                      
     willing to give that up, in the sense that we've cut out                                                                   
     the person-to-person crimes, and if you write a bad check                                                                  
     for $505 with intent to defraud, then this should maybe                                                                    
     still ... apply to you.  Again, we are, to some degree,                                                                    
     relying on the court's discretion.  If it's a                                                                              
     particularly egregious crime, if it's a multiple                                                                           
     offender, we certainly don't expect a judge to invoke                                                                      
     this type of process where we all sit down and talk about                                                                  
     it. ... We're really relying on the judge ... in these                                                                     
     types of cases.                                                                                                            
                                                                                                                                
     The sponsor isn't really willing to back down on that for                                                                  
     a couple specific reasons:  one, other states have had                                                                     
     some success with these property-type-crime felonies -                                                                     
     there's not really a hard-and-fast line between the                                                                        
     people ... that this will work for and not, just based on                                                                  
     that $500 mark - and also because we have been made aware                                                                  
     that it is happening now; even though it wasn't                                                                            
     specifically stated by ... the Chief Justice, there are                                                                    
     some what we call less egregious felonies that, for                                                                        
     instance, the youth court may deal with.  And we don't                                                                     
     want to make a bill that says, ... specifically, from the                                                                  
     policy making body, "You should not be doing that,"                                                                        
     because they're taking it very slow and very easy, and                                                                     
     they're taking just a few of these mild felonies into                                                                      
     account now, and we really don't want to say that they                                                                     
     shouldn't, because the sponsor believes that if the court                                                                  
     feels it's appropriate, then they should think about                                                                       
     this.  So, ... we understand that the department will                                                                      
     still oppose it for that reason.  And that's where we                                                                      
     part ways, I guess.                                                                                                        
                                                                                                                                
Number 2341                                                                                                                     
                                                                                                                                
REPRESENTATIVE KERTTULA asked, "Have you thought about                                                                          
nonpresumptive felonies, first time, and limiting it to that?  Have                                                             
you had that discussion."                                                                                                       
                                                                                                                                
MR. TORKELSON said that was actually an idea put forth informally                                                               
and discussed.  "My boss indicated that he liked it the way it [the                                                             
bill] was," he added.                                                                                                           
                                                                                                                                
Number 2360                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN said he hadn't seen what AS 11.41 says, but                                                                
Mr. Torkelson had indicated that it is being put in to avoid the                                                                
problem with presumptive sentencing.                                                                                            
                                                                                                                                
MR. TORKELSON clarified:                                                                                                        
                                                                                                                                
     We're avoiding most of the things.  When you think of                                                                      
     presumptive sentencing, some ... ax murderer goes out and                                                                  
     kills somebody, we want that guy to serve 20 years.  [AS]                                                                  
     11.41 is person-to-person crime.  And so, that's most of                                                                   
     the things you think about when you think of, ... "Get                                                                     
     this guy."  That's covered in [AS] 11.41.  There are some                                                                  
     other crimes that would be felonies, ... a second-time                                                                     
     property crime, that would fall under presumptive                                                                          
     sentencing.  But, again, the bill says "if the sentence                                                                    
     otherwise complies with this chapter."  So we shouldn't                                                                    
     be undoing that.                                                                                                           
                                                                                                                                
Number 2392                                                                                                                     
                                                                                                                                
REPRESENTATIVE KERTTULA asked whether her recollection is accurate                                                              
that the sponsor's intent was not to include domestic violence                                                                  
cases.  She emphasized that cases other than those in AS 11.41                                                                  
might involve domestic violence, including trespassing cases, which                                                             
many times are classic domestic violence cases in disguise.  She                                                                
asked whether Mr. Torkelson believes that the sponsor would be                                                                  
amenable to some language like "an offense other than a violation                                                               
of 11.41 or where domestic violence is alleged."                                                                                
                                                                                                                                
MR. TORKELSON answered:                                                                                                         
                                                                                                                                
     We did talk some about that.  We looked at some different                                                                  
     language, and we started getting pretty verbose in trying                                                                  
     to define ... what types of things could and couldn't.                                                                     
     Certainly, if there's any assault involved, we would be                                                                    
     out of that because that's 11.41.  The sponsor felt like,                                                                  
     again, we are relying so much on the courts to determine,                                                                  
     for instance, in a family case, the very child custody                                                                     
     and things, that we really have to rely on them to                                                                         
     implement this, and we have to rely on them to realize                                                                     
     when a victim -- first of all, the victim would have to                                                                    
     consent.                                                                                                                   
                                                                                                                                
Number 2445                                                                                                                     
                                                                                                                                
REPRESENTATIVE KERTTULA pointed out the need for a little more                                                                  
protection there for that particular crime, in terms of just                                                                    
recognizing that often domestic violence isn't charged as an                                                                    
assault.  "I've seen some pretty scary cases that were charged as                                                               
trespass," she explained, "and that's the problem.  You've got all                                                              
the facts there, but the victim may not even be willing to come                                                                 
forward. ... And then the victim sometimes will consent because of                                                              
fear, as well."  She suggested perhaps asking Ms. Carpeneti from                                                                
the Department of Law or Ms. Hugonin to speak to that briefly                                                                   
regarding some kind of language that could be added.                                                                            
                                                                                                                                
MR. TORKELSON replied:                                                                                                          
                                                                                                                                
     I would just, for the sponsor's sake, point [out] that we                                                                  
     have the two clauses in there we believe would address                                                                     
     that.  One is the consent of the victim, which -- we                                                                       
     don't know whether someone would be - it's impossible to                                                                   
     see that - if they would be ... somehow consent when they                                                                  
     didn't really want to consent.  And then, also, a                                                                          
     specific finding that the court would determine that the                                                                   
     victim has not been unduly influenced or [intimidated].                                                                    
     So ... we've tried to draw some safeguards on that.                                                                        
                                                                                                                                
TAPE 00-39, SIDE B                                                                                                              
Number 0010                                                                                                                     
                                                                                                                                
BLAIR McCUNE, Deputy Director, Public Defender Agency, Department                                                               
of Administration, testified via teleconference from Anchorage,                                                                 
noting that he had testified in favor of the bill previously.                                                                   
Although he hadn't seen the latest version, as described by Mr.                                                                 
Torkelson it makes sense to him to have the language "with the                                                                  
consent of the victim" on line 6, he said.  Furthermore, although                                                               
he believes that the courts are "pretty clued in" to any undue                                                                  
influence, if the committee feels that [language to protect against                                                             
that] should be included, the agency doesn't have any problem with                                                              
that.                                                                                                                           
                                                                                                                                
MR. McCUNE restated earlier comments that there have been good                                                                  
experiences with restorative justice in the juvenile justice                                                                    
system, even for offenses such as burglaries where young people                                                                 
have gone into a home and stolen coins, for example, although maybe                                                             
not for the most serious of burglaries.  He said those things can                                                               
be adjusted for a first-time offender, if the case is screened                                                                  
properly through a victim-offender mediation process, which he                                                                  
indicated is done by a nonprofit organization and approved by the                                                               
juvenile intake authorities.  He expressed hope that this can                                                                   
translate into adult court, at least to some extent.  He concluded,                                                             
"I think the court has a lot of discretion in that they may do it                                                               
or may not.  But ... these restorative justice processes have been                                                              
tried ... in this state and other states, as well, and they've                                                                  
produced some really good results."                                                                                             
                                                                                                                                
Number 0099                                                                                                                     
                                                                                                                                
LAUREE HUGONIN, Director, Alaska Network on Domestic Violence and                                                               
Sexual Assault, came forward to testify.  She informed members that                                                             
her organization hadn't had an opportunity to speak with the                                                                    
sponsor about the bill.  However, they would have concerns with                                                                 
only limiting the exclusion to AS 11.41; instead, they encourage                                                                
the committee to consider adding crimes involving domestic violence                                                             
as defined in AS 18.66.990.                                                                                                     
                                                                                                                                
MS. HUGONIN explained that there is a list of domestic violence                                                                 
crimes in the statutes that are outside of AS 11.41; that list                                                                  
includes burglary, criminal trespass, arson, criminal mischief,                                                                 
terroristic threatening, violating a domestic violence protective                                                               
order or harassment.  There are several scenarios in which it is                                                                
dangerous to put victims in a situation of having to consent to do                                                              
something in the courts.  Often it is in a victim's best interest                                                               
to take seriously the threat that a perpetrator poses and to try to                                                             
mitigate that potential in any way possible.  "Usually, that means                                                              
giving up a lot of their rights or access to the court," Ms.                                                                    
Hugonin said.                                                                                                                   
                                                                                                                                
MS. HUGONIN told members that the legislature has recognized this                                                               
difficulty, and the domestic violence Act of 1996 included very                                                                 
tight parameters around mediation.  She expressed hope that the                                                                 
legislature would treat this current issue with the same                                                                        
seriousness.  If there is a protective order is in place, she                                                                   
noted, mediation is not allowed to take place; it is only allowed                                                               
in limited circumstances after a judge has explained to the victim                                                              
that the victim doesn't have to agree to the mediation.  Ms.                                                                    
Hugonin restated her request that the committee consider adding [to                                                             
the exclusions] crimes involving domestic violence as defined in AS                                                             
18.66.990, which would include all the domestic violence crimes.                                                                
                                                                                                                                
REPRESENTATIVE KERTTULA thanked Ms. Hugonin for providing the cite.                                                             
                                                                                                                                
Number 0208                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT also thanked Ms. Hugonin and called an at-ease at                                                                 
2:10 p.m.  He called the meeting back to order at 2:17 p.m.                                                                     
                                                                                                                                
CHAIRMAN KOTT announced that during the intermission there had been                                                             
discussion about adding language on line 6 after "AS 11.41" that                                                                
would say "or involves domestic violence as defined in [AS]                                                                     
18.66.990."                                                                                                                     
                                                                                                                                
REPRESENTATIVE KERTTULA asked whether the word "crimes" was                                                                     
included.                                                                                                                       
                                                                                                                                
MS. HUGONIN proposed that it say "a crime involving domestic                                                                    
violence as defined in [AS] 18.66.990."                                                                                         
                                                                                                                                
REPRESENTATIVE GREEN concurred.                                                                                                 
                                                                                                                                
CHAIRMAN KOTT restated the proposed amendment:  "[AS] 11.41 or a                                                                
crime involving domestic violence as defined in [AS] 18.66.990."                                                                
He informed listeners that in addition, on lines 11 and 12, the                                                                 
amendment would strike the words "unduly influenced or" and insert                                                              
the phrase "or coerced" after "intimidated".  Therefore, it would                                                               
read:  "has not been intimidated or coerced in reaching the                                                                     
agreement."  He asked whether there was any objection to that as an                                                             
amendment.  There being no objection, Chairman Kott announced that                                                              
the foregoing was [adopted as] Amendment 1.                                                                                     
                                                                                                                                
CHAIRMAN KOTT asked whether anyone else wanted to testify on the                                                                
bill.  He closed testimony and asked the wishes of the committee.                                                               
                                                                                                                                
Number 0287                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN made a motion to move CSHB 372 [Version D], as                                                             
amended, from committee with individual recommendations and the                                                                 
attached indeterminate fiscal note.                                                                                             
                                                                                                                                
CHAIRMAN KOTT added that the bill has the support of the Public                                                                 
Defender Agency, which is unusual.  He asked whether there was any                                                              
objection.  There being no objection, CSHB 372(JUD) was moved from                                                              
the House Judiciary Standing Committee.                                                                                         
                                                                                                                                
HB 325 - MEDICAL ASSISTANCE:LIENS & CLAIMS                                                                                      
                                                                                                                                
CHAIRMAN KOTT announced that the next order of business would be                                                                
HOUSE BILL NO. 325, "An Act relating to priorities, claims, and                                                                 
liens for payment for certain medical services provided to medical                                                              
assistance recipients; and providing for an effective date."                                                                    
[Before the committee was CSHB 325(HES).]                                                                                       
                                                                                                                                
Number 0350                                                                                                                     
                                                                                                                                
JON SHERWOOD, Division of Medical Assistance, Department of Health                                                              
& Social Services (DHSS), explained that HB 325 seeks to make two                                                               
improvements to the medical assistance statutes.  The first                                                                     
improvement deals with third-party recoveries.  Someone who applies                                                             
for medical assistance assigns his or her right to recovery against                                                             
the medical expenses for which the state pays.  The department is                                                               
looking for some improvements in the statutes governing that area.                                                              
Those provisions will be addressed in more detail by Lisa Kirsch,                                                               
Department of Law, and Leonard Anderson, DHSS.                                                                                  
                                                                                                                                
MR. SHERWOOD informed the committee that the other change is with                                                               
regard to the statute for timely filing of provider claims.  Under                                                              
current statutes, when services are provided to people on Medicaid                                                              
or the Chronic and Acute Medical Assistance Program, the provider                                                               
has six months to file a claim if there is no other insurance to                                                                
bill first, or 12 months if there is other insurance to bill first.                                                             
This legislation makes two changes to that provision:  making the                                                               
time frame a year for all claims, which really brings it into the                                                               
industry practice; and eliminating the restriction on rewarding                                                                 
more than 50 percent of the allowable charges when the department's                                                             
commissioner finds that the provider has a good cause for failing                                                               
to meet the timely filing deadline, which is an equity issue.  Mr.                                                              
Sherwood offered to answer questions about timely filing but                                                                    
deferred questions regarding third-party recovery to Mr. Anderson.                                                              
He mentioned that there is an amendment that department is                                                                      
requesting, which Mr. Anderson would address.                                                                                   
                                                                                                                                
REPRESENTATIVE GREEN referred to page 3 and noted that he is not                                                                
very familiar with "subrogation."  He posed a situation in which                                                                
the recipient is awarded 80 percent and there is a subrogation, and                                                             
the department reclaims 100 percent.  He asked, then, if the other                                                              
20 percent would be returned to the recipient or would be retained                                                              
by the state.                                                                                                                   
                                                                                                                                
MR. SHERWOOD deferred to Mr. Anderson.                                                                                          
                                                                                                                                
Number 0484                                                                                                                     
                                                                                                                                
LISA KIRSCH, Assistant Attorney General, Human Services Section,                                                                
Civil Division (Juneau), Department of Law, addressed the second                                                                
part of HB 325, which she noted that she has split into two parts.                                                              
The first part deals with strengthening existing rights to recover                                                              
Medicaid payments from a third party that would be liable for that                                                              
Medicaid recipient's cost.  She identified a typical example of                                                                 
such a party as a driver who injures a Medicaid recipient and thus                                                              
Medicaid pays the medical bills and then the Medicaid recipient                                                                 
brings a lawsuit against that other driver for liability for that                                                               
accident; it would be a tort claim.  She reviewed other typical                                                                 
examples, then said HB 325 would strengthen the existing                                                                        
subrogation right.  Simply put, subrogation means that the state                                                                
has the right to stand in the shoes of the recipient.                                                                           
                                                                                                                                
MS. KIRSCH stated, "So, whatever the recipient would be able to                                                                 
recover for their medical expenses that the state would be able to                                                              
step into that position by virtue of the fact that the state has                                                                
paid their medical expenses."  In order to strengthen that                                                                      
subrogation right, HB 325 would make it express in statute that the                                                             
state's has a lien rather than a simple subrogation right.  She                                                                 
said Mr. Anderson can specify why this is a problem for him.  She                                                               
further noted that the Department of Law does not enforce these                                                                 
third[-party] claims contracted out by the Division of Medical                                                                  
Assistance, which is a requirement of the Medicaid Act.                                                                         
                                                                                                                                
MS. KIRSCH turned attention to the second area that strengthens the                                                             
existing subrogation rights, which is the allowance of the state to                                                             
initiate a claim.  In a case where a recipient fails to go after                                                                
the third party, [the bill] would allow the state to come in and                                                                
initiate a plan.  Ms. Kirsch addressed the second part of the                                                                   
subrogation portion of HB 325, which she felt to be very important.                                                             
She commented that there have been stories in which there has been                                                              
an unfair result.  The bill includes a provision that would allow                                                               
the state to waive this claim of subrogation against a third party                                                              
if it would cause an undue hardship on the Medicaid recipient.                                                                  
                                                                                                                                
MS. KIRSCH told members that another provision would require the                                                                
state to reduce its claim by the amount of money prorated to the                                                                
state's share that the recipient has spent on attorney's fees.                                                                  
Therefore, the recipient would not being paying out of pocket in                                                                
order to recover money for the state.  That provision is already in                                                             
existing statute but has not worked well; Mr. Anderson could                                                                    
explain why.  From [the Department of Law's] perspective, this is                                                               
not a substantive change because the attempt is to clarify the                                                                  
existing use of the civil rules, Rule 79 for costs and Rule 82 for                                                              
fees.  There has been some difficulty in making that work, and thus                                                             
Section 7 of HB 325 attempts to clarify the intent of the                                                                       
legislature.  Ms. Kirsch offered to answer any questions specific                                                               
to the bill but deferred other questions to Mr. Anderson.                                                                       
                                                                                                                                
Number 0707                                                                                                                     
                                                                                                                                
REPRESENTATIVE MURKOWSKI related her understanding that HB 325                                                                  
would create a lien for assistance payments because there is only                                                               
a subrogation right now.                                                                                                        
                                                                                                                                
MS. KIRSCH agreed.                                                                                                              
                                                                                                                                
REPRESENTATIVE MURKOWSKI asked who is being displaced now that the                                                              
priority status is being given.                                                                                                 
                                                                                                                                
MS. KIRSCH explained that currently subrogation claims, at least in                                                             
some case law, are considered an equitable right.  Therefore, if                                                                
the recipient does not receive full recovery, the department has a                                                              
negotiating starting point of zero.  She said, "If they're not made                                                             
whole equitable subrogation rights, it is argued by the opposition                                                              
... that we have no right of recovery."  The statutes of other                                                                  
states where Medicaid programs have had better luck recovering                                                                  
funds include a lien right.  In such a case, the negotiation would                                                              
begin with the amount of money that Medicaid had spent, reduced by                                                              
costs and fees that the recipient had to spend to recover the                                                                   
Medicaid portion.  Then negotiations could begin.  At that point,                                                               
it could be modified by things such as the undue hardship clause or                                                             
other issues within the case.                                                                                                   
                                                                                                                                
REPRESENTATIVE MURKOWSKI commented, then, that "we're" getting in                                                               
line in front of hospitals, nurses or physicians.  She asked, "This                                                             
would give us a slight bump up over other claims to those monies;                                                               
is that correct?"                                                                                                               
                                                                                                                                
MS. KIRSCH answered that in general that would be correct.                                                                      
However, with regard to physicians and hospitals, she was not sure                                                              
that this change would make much difference.  She explained that                                                                
hospitals and physicians have a statutory lien right and thus "we"                                                              
had to place ourselves somewhere in terms of our statutory lien                                                                 
right.  She pointed out that the hospital or physician who treated                                                              
this Medicaid patient would receive payment.  She commented that                                                                
she was not sure how it would really happen, and she was not sure                                                               
it would really make a difference in terms of a Medicaid provider.                                                              
Ms. Kirsch said, "In terms of where this money would be coming                                                                  
from, the only difference would be you wouldn't have a Medicaid                                                                 
recipient able to hold on to as much of the money that came to them                                                             
by virtue of a reimbursement of their medical bills."  Again, she                                                               
deferred to Mr. Anderson for more specifics.                                                                                    
                                                                                                                                
Number 0900                                                                                                                     
                                                                                                                                
REPRESENTATIVE MURKOWSKI indicated she reads the recording statutes                                                             
to mean that if [the Department of Law] perfects its lien as does                                                               
a hospital, nurse or physician under the statutes, "you" would have                                                             
a priority over them.                                                                                                           
                                                                                                                                
MS. KIRSCH agreed that would be true if a hospital or physician had                                                             
a reason to have a lien.  However, she could only think of one                                                                  
context in which it would come up in one of these Medicaid cases.                                                               
Such a case would be when an individual is Medicaid-eligible for a                                                              
short time but also had a time when he/she was not Medicaid-                                                                    
eligible, and thus there were physicians that treated this                                                                      
individual when he/she was not Medicaid-eligible.  However, if the                                                              
person had been Medicaid-eligible the entire time, the physicians                                                               
and the hospitals would not need to have a lien because "we" would                                                              
have paid our Medicaid providers.  Perhaps Mr. Anderson would know                                                              
of other circumstances, Ms. Kirsch said.  The only reason that                                                                  
statutory change was made was because a lien right was being                                                                    
created and had to be placed somewhere.                                                                                         
                                                                                                                                
REPRESENTATIVE KERTTULA asked what happens to the individual.  She                                                              
added, "The lien can come against what that person's recovered ...                                                              
but it would have to wait to be paid until the person had fully                                                                 
covered."                                                                                                                       
                                                                                                                                
MS. KIRSCH deferred to Mr. Anderson.                                                                                            
                                                                                                                                
Number 1023                                                                                                                     
                                                                                                                                
LEONARD ANDERSON, Division of Medical Assistance, Department of                                                                 
Health & Social Services, testified via teleconference from                                                                     
Anchorage.  He explained that in a typical recovery case,                                                                       
information is gathered from a Medicaid recipient or through other                                                              
sources.  That information would let the division know whether or                                                               
not a responsible and reliable third party is present, which is                                                                 
sometimes accomplished through contacts with the Medicaid                                                                       
recipient.  He noted that sometimes a responsible third party is                                                                
not found until the state's contractor receives a call during the                                                               
middle of a settlement conference between a plaintiff's counsel and                                                             
an opposing counsel with a judge.  In some cases, [a third party]                                                               
is found after the fact, after a settlement has occurred.  At that                                                              
point, some recipients or their attorneys will call the contractor                                                              
and inquire as to what it would take to eliminate the subrogation                                                               
lien or the Medicaid payments that were made on behalf of the                                                                   
client.  Sometimes [a third party] is not found at all.                                                                         
                                                                                                                                
MR. ANDERSON explained that part of the problem the state                                                                       
contractor has is the negotiation of the amount that the state                                                                  
should recover out of the Medicaid funds that have been for a                                                                   
recipient.  One of the biggest problems is that the plaintiff's                                                                 
attorneys have argued with the state contractor that under the                                                                  
current statute, the subrogation is [not] equitable and the state                                                               
should not receive any money [until] the plaintiff is made whole.                                                               
He pointed out that the plaintiff's attorney will call the state                                                                
contractor and request print outs of all the charges for which the                                                              
state has paid for the medical assistance.  Those charges are used                                                              
in order to boost or substantiate a claim that is being settled.                                                                
Mr. Anderson commented that the lack of strength of the current                                                                 
statute leaves some question.                                                                                                   
                                                                                                                                
Number 1314                                                                                                                     
                                                                                                                                
MR. ANDERSON mentioned that the proposed amendment would insert "or                                                             
the recipient's attorney" on page 3, line 4, following "recipient                                                               
of medical assistance".  Currently, when a recipient signs up for                                                               
Medicaid, the 1050 application is filed; that application says the                                                              
applicant will cooperate and notify the state of any claim or case                                                              
that he/she brings, and the applicant will include any amount of                                                                
Medicaid paid in a case that he/she would bring against a                                                                       
potentially liable third party.  Furthermore, there is a                                                                        
notification requirement if there is any recovery made.  In                                                                     
practice, however, it seems that some of the Medicaid recipients                                                                
are ignoring that and thus not informing the state that a recovery                                                              
has been made.  Mr. Anderson commented that this [proposed] change                                                              
would place some burden on the attorney to talk to his/her client                                                               
and place this on the checklist.                                                                                                
                                                                                                                                
MR. ANDERSON turned to the problem under the current law with                                                                   
regard to subrogation claims.  [The current law] is forcing the                                                                 
state to estimate what the damages are in a case.  As mentioned by                                                              
Ms. Kirsch, the current statute forces the state to negotiate from                                                              
a zero (indisc.) recovery to whatever the state can get the other                                                               
side to agree to without going to court.  He indicated his clients                                                              
have informed him that for the small cases Medicaid recovery is                                                                 
fairly good.  However, the larger cases rarely result in the state                                                              
receiving one-third of what the state has expended.  He said that                                                               
when the state has to estimate what the damages are in a case, this                                                             
places the state at a severe disadvantage in bargaining.  The new                                                               
statute eliminates the "made whole" argument and provides the state                                                             
a right to recover, which seems fair.                                                                                           
                                                                                                                                
MR. ANDERSON continued.  The Medicaid recipient uses all the                                                                    
medical information he/she receives from the state to get his/her                                                               
recovery or to substantiate his/her recovery.  As it currently                                                                  
stands with the negotiation process, the Medicaid recipients are                                                                
receiving some sort of windfall on medical expenses paid.  He                                                                   
reiterated that the new statute will provide stronger notice                                                                    
requirements and hopefully, inclusion in the law will provide more                                                              
weight and the recipient and the attorney will have to address it.                                                              
Mr. Anderson said that he believes the new bill will also foster                                                                
communication between the state and the recipients and the Medicaid                                                             
counsel.  Furthermore, this would eliminate the state's second-                                                                 
guessing of the value of a recipient's tort case and would allow                                                                
the state to negotiate down from the amount that it had paid.   He                                                              
also mentioned the undue hardship provisions.  Hopefully, this will                                                             
result in a fair and equitable recovery to the state for funds that                                                             
are recovered for medical assistance paid by the state.                                                                         
                                                                                                                                
Number 1713                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN asked if the aforementioned amendment would                                                                
invoke a legal obligation to the attorney for the recipient or if                                                               
the opportunity to point to each other still remains.  What will                                                                
the amendment provide that tightens this up?                                                                                    
                                                                                                                                
MR. ANDERSON answered that he believes the amendment will give the                                                              
attorney a legal obligation to notify the state.  The amendment                                                                 
will require the attorney to ask the client whether Medicaid                                                                    
benefits were expended on his/her behalf.  He emphasized that some                                                              
of the attorneys he has spoken with claim that they do not even                                                                 
have to ask that because there is no lien.  The amendment places a                                                              
burden upon the attorney to notify the department of a claim.  Mr.                                                              
Anderson specified that he would prefer a [requirement of]                                                                      
notification before a disbursement of a settlement fund.  If the                                                                
attorney is required to ask his/her client about a Medicaid payment                                                             
and then provide notice to the state before disbursement of the                                                                 
settlement fund, it provides the state with the opportunity to                                                                  
discuss its claim and resolve it.                                                                                               
                                                                                                                                
REPRESENTATIVE GREEN asked if "or" would still provide the attorney                                                             
with some ability to say that he/she did not know.  However, he                                                                 
understood Mr. Anderson to say that this would require that the                                                                 
attorney ask certain questions of the client.                                                                                   
                                                                                                                                
MR. ANDERSON said that he believes it would require that attorney                                                               
to place this on the checklist.                                                                                                 
                                                                                                                                
REPRESENTATIVE KERTTULA referred to Section 9.  She asked if the                                                                
recipient will be made whole before the department starts to take                                                               
money.                                                                                                                          
                                                                                                                                
MR. ANDERSON clarified that the legal issue of whether a recipient                                                              
is made whole is whether the plaintiff or Medicaid recipient fully                                                              
compensated for all of his/her injuries, economic and noneconomic.                                                              
He pointed out that tort cases include noneconomic damages such as                                                              
pain, suffering and emotional distress; however, there is                                                                       
considerable dispute as to what may be suffered there.  With regard                                                             
to making [a plaintiff] whole on those issues before the state                                                                  
recovers, Mr. Anderson said that the amendment may not do that.                                                                 
With regard to making whole for what was paid for medical expenses,                                                             
that will depend upon each individual case.  The statute will allow                                                             
the state to come in and discuss the issues.  The issue of a                                                                    
legitimate hardship is addressed on page 3, Section 8.                                                                          
                                                                                                                                
REPRESENTATIVE KERTTULA commented that the it does more than that.                                                              
She understood that the bill could place [the department] in a spot                                                             
where it could recover.  She asked if it is based on the medical                                                                
expenses alone, without looking at the overall case.  She specified                                                             
that she is interested in "where we wind up in terms of the                                                                     
recipient versus the department after this."                                                                                    
                                                                                                                                
MR. ANDERSON said that he believes the state is recovering funds                                                                
received in a settlement by Medicaid recipients.  Although the                                                                  
right for the state to step in [for the Medicaid recipient] is                                                                  
currently present, many attorneys argue otherwise.  The amendment,                                                              
by using the lien language, would specify that this right exists.                                                               
Mr. Anderson said that he hopes it would preclude a Medicaid                                                                    
patient from double recovery on medical payments because he                                                                     
believes that the state is entitled to recover any medical payments                                                             
that a Medicaid recipient recovers in a settlement.  This is what                                                               
the subrogation statute is about.  Furthermore, this is required by                                                             
the federal government.  Again, the problem is that the current                                                                 
statute is somewhat weak in that area.                                                                                          
                                                                                                                                
Number 2215                                                                                                                     
                                                                                                                                
REPRESENTATIVE KERTTULA expressed her preference to have the                                                                    
recipient "come back to the place where he/she started."  She did                                                               
not want to see a "wholesale jumping of those rights by the state,"                                                             
she added, noting that the language seems to be a dramatic change.                                                              
                                                                                                                                
MR. ANDERSON stated that currently the recipient is coming out                                                                  
ahead on medical reimbursement, and the state is coming out behind.                                                             
                                                                                                                                
REPRESENTATIVE KERTTULA acknowledged that if recipients are double-                                                             
recovering and receiving more than they are entitled to, that                                                                   
problem needs to be resolved.  However, what if the recipient is                                                                
not coming out ahead?  For instance, what would happen under the                                                                
new statute if the recipient recovered up to 80 percent of what                                                                 
he/she had spent.                                                                                                               
                                                                                                                                
MR. ANDERSON answered that he believes that would go to the                                                                     
hardship waiver portion of HB 325.                                                                                              
                                                                                                                                
REPRESENTATIVE KERTTULA commented that [the new statute] would                                                                  
place the department in line ahead; the department would have the                                                               
ability to utilize the waiver.  That is troublesome.                                                                            
                                                                                                                                
MR. ANDERSON interpreted Representative Kerttula's question to be                                                               
how that can be avoided.  He stated that the intent of the bill is                                                              
not to have that happen.  The intent of the bill is to give the                                                                 
state the ability to recover amounts that the Medicaid recipient                                                                
recovers for Medicaid assistance.  The intent is not to recover                                                                 
amounts that the Medicaid recipient had recovered for something                                                                 
else.  However, most of the plaintiffs' attorneys utilize the                                                                   
client data report, which lists all Medicaid amounts expended for                                                               
a recipient.  The attorney uses that information in the case in                                                                 
order to get as much ... [Due to tape change, the testimony was                                                                 
interrupted midspeech.]                                                                                                         
                                                                                                                                
TAPE 00-40, SIDE A                                                                                                              
                                                                                                                                
MR. ANDERSON said that due to the current statute, the state is                                                                 
getting reimbursed amounts that have been collected, and therefore                                                              
the Medicaid recipient is getting a double recovery.                                                                            
                                                                                                                                
REPRESENTATIVE MURKOWSKI referred to the portion of the bill that                                                               
changes the timely filing of the claim from six months to twelve                                                                
months.  She asked if this extension could possibly cause providers                                                             
to slow down.                                                                                                                   
                                                                                                                                
Number 0130                                                                                                                     
                                                                                                                                
MR. SHERWOOD stated that the extension of the timely filing                                                                     
deadline is a separate issue.  In general, it is in the providers'                                                              
best interests to file their claims quickly because they have                                                                   
already provided a service for which they are out their expenses.                                                               
He pointed out that delays can be caused when clients provide                                                                   
insufficient information about their Medicaid eligibility for the                                                               
provider to submit an accurate claim.  He acknowledged that often                                                               
there is a good reason for that insufficient information.  Another                                                              
situation that can cause a delay is a change in billing personnel                                                               
or accounting software.  Mr. Sherwood commented that, in his                                                                    
experience, such things would all be resolved well before arriving                                                              
at the settlement points in most cases.                                                                                         
                                                                                                                                
REPRESENTATIVE MURKOWSKI said she understood, then, that in                                                                     
addition to the six months' extension, a person would not be                                                                    
limited to the 50 percent reimbursement if he/she had a good reason                                                             
for failure to timely file a claim.                                                                                             
                                                                                                                                
MR. SHERWOOD agreed.  In further response to Representative                                                                     
Murkowski, he agreed that it is correct that most states have a                                                                 
lien statute, and it seems to be a common way of doing business.                                                                
                                                                                                                                
Number 0369                                                                                                                     
                                                                                                                                
REPRESENTATIVE KERTTULA asked:  If [the department] has filed a                                                                 
lien and the parties know about it, wouldn't that result in raising                                                             
the recovery?                                                                                                                   
                                                                                                                                
MR. ANDERSON replied yes, potentially.  He identified part of the                                                               
problem as being that settlements are being negotiated without any                                                              
knowledge of the state.  Therefore, by there being a lien that is                                                               
recorded and sent to an attorney, there is a notice provision and                                                               
he believes the attorneys will seek to recover a higher amount.                                                                 
                                                                                                                                
REPRESENTATIVE GREEN asked if Representative Kerttula meant there                                                               
would be a higher cost due to the attorney's fees and court costs.                                                              
He pointed out that page 4, line 3, says, "The lien is the amount                                                               
of the medical assistance paid ...."                                                                                            
                                                                                                                                
Number 0520                                                                                                                     
                                                                                                                                
REPRESENTATIVE KERTTULA pointed out that they wouldn't necessarily                                                              
know what the amounts were, which is the problem.  She explained                                                                
that sometimes the plaintiff's attorneys will come and request                                                                  
lists of services, but the department has no way to know what is                                                                
actually being claimed or [recovered].  Therefore, the                                                                          
[department's] desire is to submit a lien for their costs which                                                                 
will force the plaintiff's attorney to return and specify the costs                                                             
and the ways in which his/her client has been hurt.  Thus the                                                                   
[department] would recover what the plaintiff is out as well as                                                                 
what the state is out.  She asked if that is correct.                                                                           
                                                                                                                                
CHAIRMAN KOTT asked whether there were additional questions or                                                                  
persons who wished to testify.  There being none, the public                                                                    
testimony was closed.                                                                                                           
                                                                                                                                
Number 0665                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT made a motion that the committee adopt                                                                     
Amendment 1:                                                                                                                    
                                                                                                                                
     Page 3, line 4:                                                                                                            
          Following "recipient of medical assistance"                                                                           
          Insert "or the recipient's attorney"                                                                                  
                                                                                                                                
There being no objection, Amendment 1 was adopted.                                                                              
                                                                                                                                
Number 0699                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT made a motion to move HB 325 [CSHB 325(HES)],                                                              
as amended, out of committee with individual recommendations and                                                                
the accompanying fiscal note.  There being no objection, it was so                                                              
ordered and CSHB 325(JUD) was moved from the House Judiciary                                                                    
Standing Committee.                                                                                                             
                                                                                                                                
The committee took an at-ease from 3:09 p.m. to 3:12 p.m.                                                                       
                                                                                                                                
HJR 53 - CONST AM: WILD FOOD RESOURCES                                                                                          
                                                                                                                                
CHAIRMAN KOTT announced that the final order of business before the                                                             
committee would be HOUSE JOINT RESOLUTION NO. 53, Proposing                                                                     
amendments to the Constitution of the State of Alaska relating to                                                               
a preference for taking wildlife for human consumption.  He noted                                                               
that there was a new proposed CS, Version K [1-LS1337\K, Utermohle,                                                             
3/27/00], that would address all of Representative Croft's prior                                                                
concerns.                                                                                                                       
                                                                                                                                
Number 0840                                                                                                                     
                                                                                                                                
EDDIE GRASSER, Staff to Representative Masek, Alaska Staff                                                                      
Legislature, testified on behalf of the sponsor of HJR 53.  He                                                                  
noted that after the last hearing, a CS that addresses some of the                                                              
committee's concerns was drafted.  He informed the committee that                                                               
the new CS, Version K, deletes the word "enhanced" from Section 1.                                                              
Therefore, the language in Section 1 of the bill and Section 4 of                                                               
the constitution is the original language of the constitution.  He                                                              
specified, "So, the only change is in Section 2 on lines 11 through                                                             
13, where on line 13 we added 'except as provided by the                                                                        
legislature.'"  That language clarifies that areas such as the                                                                  
McNeil River Sanctuary, set aside by the  legislature or by law                                                                 
would be maintained.                                                                                                            
                                                                                                                                
MR. GRASSER noted his past experience sitting on the Board of Game                                                              
and indicated the language "solely to provide for nonconsumptive                                                                
use" allows for many other things besides legislatively-designated                                                              
areas that are to be closed.  He pointed out that while he sat on                                                               
the board, the board closed several areas to hunting in what is                                                                 
called a controlled use area.  All of those closures were made for                                                              
hunting purposes, not for nonconsumptive reasons.  He believes that                                                             
most of the controlled use areas that have been set aside in the                                                                
last 10 years are similar in effect, because these areas have                                                                   
mainly been set aside in order to deal with conflicts between                                                                   
hunters.                                                                                                                        
                                                                                                                                
MR. GRASSER said this language would still allow the board to do                                                                
that, if there is a public safety reason, a conservation reason or                                                              
a scientific research reason, or if there is a reason to restrict                                                               
access or uses by different groups of hunters.  Under this                                                                      
language, the legislature would have the authority to continue to                                                               
close areas as they see fit.  He pointed out that in Title 16, the                                                              
Board of Game cannot create refuges, sanctuaries or critical                                                                    
habitat areas.  The Board of Game can suggest the creation of such                                                              
areas, but the legislature is the body that must act on them.  Mr.                                                              
Grasser informed the committee that this language is "pretty much"                                                              
the same as that passed by the people of Alabama in 1996 and was                                                                
included in their constitution.                                                                                                 
                                                                                                                                
REPRESENTATIVE CROFT recalled that Mr. Grasser had said this is a                                                               
preference among beneficial uses authorized by Section 4 [of the                                                                
Constitution of the State of Alaska], which he believes to be                                                                   
correct.  Therefore, he understood that [the legislature] currently                                                             
has the constitutional authority to make a preference between                                                                   
consumptive and nonconsumptive uses in statute.                                                                                 
                                                                                                                                
MR. GRASSER replied, "That is correct."                                                                                         
                                                                                                                                
Number 1004                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT surmised, then, that [the legislature] could                                                               
currently write in statute, "... consistent with the sustained                                                                  
yield principle, the harvest of fish and wildlife may not be                                                                    
diminished solely to provide for nonconsumptive use of fish or                                                                  
wildlife."  There would not be anything unconstitutional about that                                                             
because it is a distinction of uses.                                                                                            
                                                                                                                                
MR. GRASSER again agreed, but pointed out that if it is in statute,                                                             
then it can be changed by a future legislature.                                                                                 
                                                                                                                                
REPRESENTATIVE CROFT commented, "But here, a future legislature can                                                             
change the constitutional provision."  The language "except as                                                                  
provided" allows the legislature the ability to exempt various                                                                  
things and cases, he added.                                                                                                     
                                                                                                                                
MR. GRASSER answered, "That is correct.  The legislature could,                                                                 
with ... ample public pressure, continue to close areas to hunting                                                              
for purposes other than conservation, public safety, et cetera."                                                                
However, he believes that would be more difficult for the                                                                       
legislature to do that versus achieving that by the initiative                                                                  
process or by other processes.  Mr. Grasser specified that the                                                                  
intent is to establish some protection for a legitimate use of                                                                  
wildlife that has been eroded for the last 30 years.  He said, "All                                                             
of the diminishing uses of our natural wildlife resources or fish                                                               
have all come at the expense of hunters and trappers; they've                                                                   
continually lost ground."  He echoed earlier comments that this                                                                 
historical trend indicates that those uses will continue to come                                                                
under attack and probably continue to be stopped in favor of                                                                    
another use.                                                                                                                    
                                                                                                                                
Number 1124                                                                                                                     
                                                                                                                                
DICK BISHOP, Vice President, Alaska Outdoor Council (AOC), informed                                                             
the committee that AOC strongly supports the work draft, Version K.                                                             
This amendment clarifies the original intent of Section 4 of the                                                                
Constitution of the State of Alaska.  Mr. Bishop said that in the                                                               
view of AOC, the key in fortifying the language of the constitution                                                             
is the sustained yield principle.  The sustained yield principle,                                                               
however it is defined, refers to the consumptive use of resources                                                               
by people.  Mr. Bishop commented that some years ago Gordon                                                                     
Harrison (ph) had explained the sustained yield principle very                                                                  
simply in his book titled "Alaska's Constitution - A Citizen's                                                                  
Guide," which he quoted as follows:                                                                                             
                                                                                                                                
     The principle of sustained yield management is a basic                                                                     
     tenet of conservation.  It is a simple yet fundamental                                                                     
     idea that the annual harvest of a biological resource                                                                      
     should not exceed the annual regeneration of that                                                                          
     resource.  Maximum sustained yield is the largest harvest                                                                  
     that can be maintained year after year.                                                                                    
                                                                                                                                
MR. BISHOP pointed out that the constitution and the minutes of the                                                             
constitutional convention emphasize sustained yield management of                                                               
replenishable natural resources for beneficial uses.  He reiterated                                                             
that "harvest by people" is central to the sustained yield                                                                      
principle as pointed out by Mr. Harrison (ph).  However, that                                                                   
central point has been obscured in the course of discussion and the                                                             
emphasis of other uses and other preferences for uses of wildlife.                                                              
This has happened as people have become less associated with direct                                                             
dependence and direct relationships with fish and wildlife as well                                                              
as traditional Alaskan lifestyles.  Mr. Bishop said, "We think                                                                  
it's really important ... to the continuation of traditional                                                                    
Alaskan lifestyles that our connections to the lands and waters                                                                 
through the harvest and use of fish and wildlife be recognized."                                                                
Version K reinforces the relationship of consumptive use to                                                                     
sustained yield while allowing the legislature to retain its                                                                    
ability to exercise policy-making authority to set other goals for                                                              
management and use.                                                                                                             
                                                                                                                                
Number 1338                                                                                                                     
                                                                                                                                
REPRESENTATIVE JAMES turned attention to the management for                                                                     
sustained yield, which she believes is more than two "pieces."  She                                                             
identified the allowance for consumptive use of fish and game as                                                                
"very much according to Alaska's history."  However, maintaining a                                                              
sustained yield basis means that habitat must also be maintained.                                                               
When habitat is maintained in this state, there is also a land                                                                  
control use, which she noted that she supported.  She stated, "As                                                               
long as we're continuing to maintain a population that can be                                                                   
harvested for consumptive use, we also ... continue in the effort                                                               
to maintain sufficient and valuable habitat."                                                                                   
                                                                                                                                
REPRESENTATIVE JAMES continued.  With regard to those who want to                                                               
let nature go, those same people want to maintain the habitat, she                                                              
said, adding, "It seems to me like there is a better opportunity,                                                               
as long as you maintain the ability for those folks who want                                                                    
consumptive uses to do it.  You have a protectionist group out                                                                  
there that's going to maintain the health and status of the habitat                                                             
because you can't have one without the other."  This is an                                                                      
important issue that needs to be addressed.  She suggested looking                                                              
at the long-term goal of what is best for Alaska.                                                                               
                                                                                                                                
Number 1451                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN made a motion that the committee adopt the                                                                 
proposed CS, Version K [1-LS1337\K, Utermohle, 3/27/00] as a work                                                               
draft.  There being no objection, it was so ordered.                                                                            
                                                                                                                                
REPRESENTATIVE CROFT explained his objections to the bill.  He                                                                  
noted his appreciation of the sponsors' meeting a lot of the                                                                    
concerns.  He said, however, "I think what I learned from this is                                                               
when you meet those concerns, as they did, you don't have anything                                                              
left."  Currently, subsection (a) gives the legislature the power                                                               
to make preferences among beneficial uses.  He noted, "There's no                                                               
question that a consumptive use and a nonconsumptive use are                                                                    
different beneficial uses.  We have this power now."  Therefore, he                                                             
objected to including surplus language in the constitution.                                                                     
                                                                                                                                
REPRESENTATIVE CROFT suggested, "If what we want to do is establish                                                             
this with just exceptions from McNeil and wherever, let's just put                                                              
that in statute.  I don't think ... consumptive [use] should always                                                             
trump nonconsumptive [use]."  He identified himself as a primarily                                                              
consumptive user, then said although he knows many other hunters                                                                
who are primarily consumptive users, he also knows that people in                                                               
his district have legitimate nonconsumptive uses that they enjoy.                                                               
"We ought to be able to accommodate both and not say one always                                                                 
wins and one always loses," he emphasized.  He said the main part                                                               
of the new CS doesn't do anything but put in the constitution an                                                                
authority "we already had and are reluctant to exercise," and he                                                                
doesn't want to clutter up the constitution.                                                                                    
                                                                                                                                
CHAIRMAN KOTT called an at-ease, which lasted from 3:27 p.m. to                                                                 
3:32 p.m.  He then announced that the committee would recess to the                                                             
call of the chair.                                                                                                              
                                                                                                                                
CHAIRMAN KOTT reconvened the meeting at 5:27 p.m. and continued the                                                             
hearing on HJR 53.  [Present were Representatives Kott, Green,                                                                  
Rokeberg and James.]                                                                                                            
                                                                                                                                
Number 1624                                                                                                                     
                                                                                                                                
REPRESENTATIVE JAMES made a motion to move CSHJR 53 [Version K] out                                                             
of committee with individual recommendations and the accompanying                                                               
fiscal note.  There being no objection, it was so ordered and CSHJR
53(JUD) was moved from the House Judiciary Standing Committee.                                                                  
                                                                                                                                
ADJOURNMENT                                                                                                                     
                                                                                                                                
Number 1639                                                                                                                     
                                                                                                                                
There being no further business before the committee, the House                                                                 
Judiciary Standing Committee meeting was adjourned at 5:27 p.m.                                                                 

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