Legislature(1993 - 1994)
01/27/1993 01:00 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
January 27, 1993
1:00 p.m.
MEMBERS PRESENT
Rep. Brian Porter, Chairman
Rep. Jeannette James, Vice Chair
Rep. Pete Kott
Rep. Gail Phillips
Rep. Joe Green
Rep. Cliff Davidson
Rep. Jim Nordlund
MEMBERS ABSENT
None
OTHER REPRESENTATIVE PRESENT
Rep. Bill Williams
COMMITTEE CALENDAR
Organizational Meeting
Continuation of Committee Business
Overview - Alaska Court System
Overview - Department of Law
WITNESS REGISTER
CHRIS CHRISTENSEN
Staff Counsel
Alaska Court System
303 K Street
Anchorage, AK 99501
Phone: 264-8228
Position Statement: Gave overview of Alaska Court System
CHARLIE COLE
Attorney General
Department of Law
P. O. Box K
Juneau, AK 99811-0300
Phone: 465-3600
Position Statement: Gave overview of the Department of Law
BRUCE BOTELHO
Deputy Attorney General
Department of Law
P. O. Box K
Juneau, AK 99811-0300
Phone: 465-3600
Position Statement: Gave overview of the Civil Division
DEAN GUANELI
Assistant Attorney General
and Criminal Division Administrator
Department of Law
P. O. Box K
Juneau, AK 99811-0300
Phone: 465-3428
Position Statement: Gave overview of the Criminal Division
GAYLE HORETSKI
Committee Counsel
House Judiciary Committee
Room 120, Capitol Building
Juneau, AK 99801-1182
Phone: 465-4990
Position Statement: Answered committee questions
ACTION NARRATIVE
TAPE 93-2, SIDE A
Number 000
The second meeting of the House Judiciary Committee was
called to order at 1:10 p.m. on January 27, 1993. A quorum
was present.
Number 036
CHRIS CHRISTENSEN, STAFF COUNSEL TO THE ALASKA COURT SYSTEM,
gave an overview of the judicial branch of government. He
explained that the judicial branch is comprised of three
separate agencies: the Alaska Judicial Council, the
Commission on Judicial Conduct, and the Alaska Court System.
He explained that Alaska, unlike most other states, has a
unified court system. Cities and boroughs prosecute their
own laws in state court. Mr. Christensen told the committee
that there are four levels of court in the Alaska Court
System: the Supreme Court, the Court of Appeals, the
Superior Court, and the District Court. He went on to
explain the function of each type of court.
Number 184
MR. CHRISTENSEN next outlined the composition and role of
the Alaska Judicial Council. The Council has three main
purposes, he said. They solicit, screen and nominate
applicants for vacant judicial positions. They conduct
studies for the improvement of the administration of
justice. Third, they evaluate all judges who run for
retention.
Number 200
MR. CHRISTENSEN explained how judges are appointed in
Alaska. Qualified persons submit applications to fill
vacant positions. Then, the Judicial Council evaluates the
applicants. After evaluating the applicants, the Council
submits a list of names to the governor; the governor then
appoints one of those people to the bench. Judges may serve
until the age of 70, barring misconduct in office. However,
judges periodically come up for a retention vote by the
public. The Judicial Council reviews each judge as she or
he comes up for retention and makes a recommendation to the
voters of the state.
Number 249
MR. CHRISTENSEN explained that the third agency in the
judicial branch of government is the Commission on Judicial
Conduct. He explained the composition of the panel and its
function, which is to investigate complaints of ethical
misconduct against judges or justices.
MR. CHRISTENSEN explained that the judicial branch of
government is, like the legislature, just a tiny part of
state government, with just about 2-3 percent of state
employees and 1.2 percent of the state budget. He asked
committee members if they had any questions for him.
Number 284
REP. PHILLIPS asked if there had ever been an attempt to
amend the constitution so as to remove the executive branch
of government from the process of appointing judges.
Number 288
MR. CHRISTENSEN said that he could not recall such an
attempt. In fact, he had heard of the opposite happening.
Some people would like to give the governor sole authority
to appoint judges.
Number 298
CHAIRMAN PORTER asked Mr. Christensen to outline what
happens to a defendant, from the point of arrest, as he or
she makes her or his way through the court system.
Number 309
MR. CHRISTENSEN explained the process to the committee.
After an arrest is made or an indictment issued, the
defendant appears before a judge and is formally charged
with a crime. The judge then decides whether to keep the
defendant in jail or to let the defendant out on bail. The
defendant would be given the opportunity to speak with a
lawyer; if the defendant could not afford a lawyer, one from
the public defender's office or the office of public
advocacy would be appointed to the case. The defendant
would next enter a plea. Under Alaska law, a defendant is
entitled to a trial within 120 days after being charged with
a crime. At a trial, a defendant is either convicted or set
free. If convicted, a pre-sentencing report is written on a
criminal. In the report is a recommendation to the judge on
what the sentence should be. Then, a sentencing hearing
occurs, in which a judge imposes a sentence. Frequently, a
defendant will appeal; a court of appeals then makes a final
decision on whether the initial conviction and sentencing
were appropriate. This marks the end of a person's journey
through the court system.
(CHAIRMAN PORTER acknowledged the presence of
Representatives Green, Davidson, and Williams.)
Number 407
REP. PHILLIPS asked about the court system's backlog of
cases and a defendant's right to not be tried because of the
unavailability of a speedy trial.
Number 418
MR. CHRISTENSEN said that because of the "120-day rule"
criminal cases are not delayed during times of heavy
caseloads. Civil cases are the ones that get put on the
back burner. If the state is not able to try a person
within 120 days, and the defendant demands to be tried
within that period of time, the case must be dismissed.
REP. PHILLIPS asked if because of this backlog in cases,
combined with budget cuts, the state was looking at invoking
a fine system for non-violent crimes.
Number 467
MR. CHRISTENSEN said that a bail schedule was already in
place for minor fish and game violations and traffic
violations. That is a simple system to impose when there is
no jail sentence possible as a result of the crime or
violation. However, in the case of a misdemeanor or felony
case where there is a possibility of a jail sentence, the
legislature would have to determine whether, as a matter of
policy, it was appropriate to impose fines in lieu of a jail
sentence. The court system is currently studying a system
in place in Scandinavian countries and in a few counties in
the United States called "day fines." Fines in the United
States are valued so that poor members of society can afford
to pay them. Under the day fine system, a fine is based on
the defendant's income level. As a result, higher income
defendants would pay more than their lower income
counterparts.
Number 508
REP. GREEN asked about the court system's ability to
rearrange its case load in the event of a backlog so that
cases could be heard according to seriousness, instead of
just on a chronological basis.
Number 513
MR. CHRISTENSEN said that cases must be heard within 120
days, but the order in which cases are heard is subject to
discretion.
Number 518
CHAIRMAN PORTER asked Mr. Christensen about judge's
discretion when imposing sentences.
Number 525
MR. CHRISTENSEN said that the legislature has traditionally
set maximum sentences for certain crimes, but the exact
terms of sentence were left to the judge's discretion.
Later, the legislature set up a system of presumptive
sentencing, which applied to certain felonies and which
limits a judge's discretion when imposing a sentence. The
down-side to presumptive sentencing is that defendants
subject to presumptive sentencing tend to plead innocent,
because they know what sentence they will get if they plead
guilty.
Number 570
REP. NORDLUND asked if the court system had taken, or would
take if asked, a position on presumptive sentencing.
MR. CHRISTENSEN said that the court system generally did not
take a position on bills, except if those bills would
directly affect its internal operations.
REP. KOTT inquired about the impact of plea bargaining.
MR. CHRISTENSEN said that for years plea bargaining was
prohibited, but he believed it was back, in some form. He
encouraged Rep. Kott to direct this question to the attorney
general's office.
Number 595
CHAIRMAN PORTER welcomed Attorney General Charlie Cole to
the committee and asked him to address the members.
Number 598
CHARLIE COLE, ATTORNEY GENERAL FOR THE STATE OF ALASKA,
explained that the Department of Law was divided into two
divisions -- a Criminal Division and a Civil Division. The
Civil Division has headquarters in Juneau, Anchorage, and
Fairbanks. He outlined significant activities of the Civil
Division, including vigorous prosecution of tax assessments
against "Big Oil." He described the present harmonious
working relationship between the Department of Law and the
Department of Revenue on this issue, which is a positive
change from their associations in some past years. He noted
that his Department has largely wound up the royalty
settlements, but they still need to work on phase II of the
Amerada Hess litigation. He expressed his opinion that the
Department of Revenue needs more auditors on staff in order
to continue pursuing collection of oil company tax
assessments.
Number 713
ATTORNEY GENERAL COLE said that his Department is continuing
to litigate against the federal government over the oil
export ban, which is terribly costly to Alaska and other
states. He mentioned that the Department is also working to
acquire title to the lands beneath the navigable waters in
the state. He noted the state's weak position in terms of
the numbers of lawyers that the state can put on a case
against "Big Oil," compared with several times that number
of lawyers that the industry assigns to the case. He said
the Civil Division is getting lawyers of increasingly high
quality, but there is a need to hire more natural resources
lawyers.
Number 783
ATTORNEY GENERAL COLE went on to discuss the Department of
Law's Criminal Division, which was impacted by a severe
budget cut last year. More money given to the state
troopers results in more cases for the Criminal Division, he
said. He added that it is unfair to the police officers and
state troopers who make arrests to not see those cases
brought to trial due to budget cuts in the Department of
Law.
TAPE 93-2, SIDE B
Number 000
ATTORNEY GENERAL COLE asserted that all criminal cases ought
to be prosecuted. It is painful, he said, to have to say
"we don't have the staff."
REP. PHILLIPS asked Mr. Cole about the use of contracting
out audits as a cost-saving measure.
ATTORNEY GENERAL COLE said that he deferred that decision to
Commissioner Rexwinkel.
ATTORNEY GENERAL COLE reiterated his goal of winding up the
tax cases. Some of them go back to the late 1970s, he said,
and remain unresolved.
Number 060
CHAIRMAN PORTER asked Mr. Cole if the proceeds of those tax
cases were still in the hands of the oil companies.
Number 065
ATTORNEY GENERAL COLE replied that the oil companies were
holding the proceeds. He noted that two years ago the state
imposed compound interest on the oil companies.
Number 084
CHAIRMAN PORTER asked Attorney General Cole if he would
characterize the situation as one which had no definition in
the past, but now had definition in terms of what bills the
state was sending out.
Number 090
ATTORNEY GENERAL COLE said that he did not find fault with
what had occurred in the past. He acknowledged the work of
his predecessors, and said that it might be that these cases
were now coming to fruition by virtue of work which had been
done in the past. He commented that they had been able to
work out agreements that value the oil in the future, which
should lessen future valuation disputes.
Number 120
REP. PHILLIPS complimented the work by the Hickel
administration on settling the royalty payment issues.
Number 129
ATTORNEY GENERAL COLE stated that it was gratifying to make
these settlements without the legislature questioning the
process or the result.
Number 158
BRUCE BOTELHO, DEPUTY ATTORNEY GENERAL, commented that the
poor relationship between the Department of Law and the
Department of Revenue in the past was a major bottleneck in
the ability to make collections.
Number 193
MR. BOTELHO said that the Department of Law employed nearly
200 lawyers, funded in a variety of ways and working out of
Juneau, Fairbanks, Anchorage, Ketchikan, Nome, and Kenai.
The offices provide legal services to all three branches of
state government.
Number 230
MR. BOTELHO stated that a large amount of the Department's
case load involves drafting legal opinions, regulation
drafting and review, and legislative drafting and review.
Number 245
MR. BOTELHO outlined the various sections of the
Department's Civil Division, including the Commercial
Section and the Governmental Affairs Section.
Number 276
REP. PHILLIPS asked Mr. Botelho about the process of
regulation review.
Number 280
MR. BOTELHO described the procedure by which a state agency
would change its regulations. He then continued his review
of the Civil Division's sections, including the
Transportation Section, the Oil, Gas, and Mining Section,
the Human Services Section, the Natural Resources Section,
and the Special Litigation Section, the Medicaid Provider
Fraud Section, the Welfare Fraud Section, the Fair Business
Practices Section, and the Environmental Section.
Number 404
MR. BOTELHO provided committee members with a written
summary of major, ongoing litigation in each section of the
Civil Division.
Number 418
CHAIRMAN PORTER asked committee members if they had any
questions.
Number 419
REP. GREEN asked Mr. Botelho if the Department of Law's
contract attorneys worked for a fixed fee or for a
percentage of the litigation's gain.
Number 432
MR. BOTELHO replied that the attorneys worked for a fixed
fee. He noted that they are currently experimenting with a
contingent-fee arrangement in an anti-trust suit.
Number 444
REP. PHILLIPS asked Mr. Botelho if the cost for the lawyers
assigned to particular state agencies were borne by the
Department of Law or by the department for which the work
was being done.
Number 451
MR. BOTELHO explained the funding structure of the
Department of Law. He said funding for about 40 percent of
the Civil Division attorneys comes from other state
departments.
Number 500
CHAIRMAN PORTER reiterated and asked for clarification of
Mr. Botelho's statement.
Number 510
MR. BOTELHO said that most of the attorneys are funded by
the general fund, some through the Department of Law, and
some through other state departments. He stated that since
1987, the Department of Law has lost seven natural resources
general attorneys, although it has tried to make up for that
through funding from other departments. The irony, he said,
was that while cutting back on natural resource attorneys,
the state has undertaken major initiatives to litigate
against the federal government and has been sued. For that
reason, the governor has agreed to request seven additional
positions, five of which would be dedicated to natural
resource litigation.
Number 532
REP. DAVIDSON requested a written report on the increased
positions and how they would fit into the Department of
Law's expanded litigation program.
MR. BOTELHO indicated that a report would be forthcoming.
Number 537
REP. GREEN asked Mr. Botelho about the flexibility of
attorneys within the Department of Law to work on issues
outside their areas of expertise, should the need arise.
Number 547
MR. BOTELHO commented that the Department's ability to be
flexible has been steadily diminishing over the years, but
other state agencies have been helpful in providing funding
to try to minimize that.
Number 563
MR. BOTELHO cited the reapportionment case as an example of
the problems associated with the Department's decreased
ability to be flexible.
Number 577
CHAIRMAN PORTER, hearing no further questions for Mr.
Botelho from the committee, called Mr. Dean Guaneli of the
Department of Law's Criminal Division, to address the
committee.
Number 581
DEAN GUANELI, ASSISTANT ATTORNEY GENERAL AND CRIMINAL
DIVISION ADMINISTRATOR, stated that the Criminal Division
prosecutes most violations of state criminal law. The
Division has offices in 13 locations around the state.
Additionally, Division staff regularly travel to outlying
areas to handle court calendars there. Division staff are
spread very thin, he added. He said the Division was simply
unable to prosecute every violation of state law.
Number 600
MR. GUANELI stated that this inability stemmed from many
sources, including lack of evidence and the expense of
bringing witnesses back to Alaska from other states. The
Division, under the law, has broad discretion to choose
which cases it prosecutes and which it does not, he added.
Number 624
REP. DAVIDSON inquired about the average cost of
prosecution.
Number 630
MR. GUANELI said that it was difficult to quantify the cost
of prosecution, due to the varieties of crime. He said his
Division handles felonies, misdemeanors and regulatory
offenses that range from speeding tickets to some commercial
fishing violations.
Number 647
REP. DAVIDSON asked Mr. Guaneli how many new positions the
Division was asking for.
Number 649
MR. GUANELI said the Division was not asking for any
increase in positions and would likely lay off some of its
staff.
Number 653
REP. DAVIDSON asked how many additional positions the Civil
Division was requesting.
MR. BOTELHO responded that they were requesting seven
additional positions.
REP. DAVIDSON asked what effect seven additional positions
would have on the Criminal Division's workload.
Number 655
MR. GUANELI said that it would help the Division
immeasurably. However, he noted that in the past the Civil
Division has taken a substantially larger number of budget
cuts than the Criminal Division had. He added that he felt
it was the Civil Division's turn to "catch up" on funding.
TAPE 93-3, SIDE A
Number 015
REP. JAMES asked if there was a method by which the Criminal
Division determined which infractions would be prosecuted.
Number 032
MR. GUANELI said the Division tried to assess cases as they
received them and determine how important it was to
prosecute that particular case, compared to other cases
received by the Division. He cited bootlegging cases as an
example of some cases being taken more seriously in certain
regions of the state.
Number 116
REP. JAMES mentioned that it seemed that the Division
handled each case it received, but did not necessarily bring
each case to trial.
Number 120
MR. GUANELI responded that some cases were prosecuted to the
full extent of the law, others were prosecuted to a lesser
extent, and a large number of cases were simply not
prosecuted.
Number 127
CHAIRMAN PORTER asked Mr. Guaneli about the current policy
on plea bargaining.
Number 133
MR. GUANELI said that plea bargaining was widely condemned
for a number of years, because it took the judge and jury
out of the decision making process. The practice that was
condemned the most, he said, was the prosecuting attorney
and the defense attorney agreeing on a sentence. Currently,
that practice is prohibited, except in rare circumstances.
Under the presumptive sentencing system, there are some
statutory limits to a judge's sentencing discretion, he
added.
Number 150
MR. GUANELI estimated that at least 90 percent of the
Criminal Division's cases were disposed of in some manner,
through a plea change from not guilty to guilty. Therefore,
the cases that go to trial are the last 8-10 percent of the
cases that get prosecuted, he said. Those cases are ones in
which the defendant refused to enter into any kind of
negotiated agreement, or the Division feels that it would be
irresponsible to agree to the settlement that the defense
wants.
Number 199
REP. GREEN inquired about the length of time Criminal
Division staff remain in jobs located in rural areas of
Alaska.
Number 222
MR. GUANELI indicated that it was difficult to keep
personnel in rural areas long enough so that they gained
experience with the community, but not so long that they
become jaded about the criminal justice system. The
Division's experience is that they can expect a two-year
commitment from rural staff. He added that they are now
asking applicants to give a commitment to remain in the
rural area for at least two years. He spoke of high travel
costs to outlying areas of the state, not just for a judge,
but also for police officers and witnesses.
Number 272
CHAIRMAN PORTER called committee members' attention to the
committee schedule for the rest of the current week and for
the following week. He then asked Gayle Horetski, Committee
Counsel, to address the committee on bills that had been, or
would be referred to the Judiciary Committee.
Number 328
MS. GAYLE HORETSKI stated that many bills have Judiciary
Committee referrals, but most must go to another committee
first. However, four bills have received a Judiciary
Committee referral as their first committee of referral.
Two of those, she said, had been scheduled for the following
week: HB 90, the 1992 revisor's bill and HB 58, relating to
the budget reserve fund. She briefly described each of
those bills.
MS. HORETSKI described the other two bills currently in
committee. House Bill 64, sponsored by Rep. Toohey, relates
to stalking. A sponsor substitute may be introduced, she
said. House Bill 86, relating to property-related offenses
by juveniles, and sponsored by Rep. Bunde, was recently
received, she added.
Number 377
REP. PHILLIPS asked when bill packets would be available to
committee members.
Number 380
CHAIRMAN PORTER replied that bill packets would be prepared
at least 24 hours prior to committee meetings and members
were responsible for obtaining them from the committee room.
Number 390
CHAIRMAN PORTER commented that the three bills that the
Court System had requested that the committee introduced on
its behalf would indeed be introduced, barring any strong
objections from the committee.
ADJOURNMENT
CHAIRMAN PORTER adjourned the meeting at 2:50 p.m.
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