Legislature(1999 - 2000)
03/27/2000 01:20 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
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.