Legislature(1999 - 2000)
02/24/1999 01:10 PM House JUD
| Audio | Topic |
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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
February 24, 1999
1:10 p.m.
MEMBERS PRESENT
Representative Pete Kott, Chairman
Representative Joe Green
Representative Norman Rokeberg
Representative Jeannette James
Representative Lisa Murkowski
Representative Eric Croft
Representative Beth Kerttula
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
* HOUSE BILL NO. 67
"An Act relating to release of certain persons alleged to have
committed certain sexual offenses."
- HEARD AND HELD
* HOUSE BILL NO. 66
"An Act making corrective amendments to the Alaska Statutes as
recommended by the revisor of statutes; and providing for an
effective date."
- MOVED CSHB 66(JUD) OUT OF COMMITTEE
* HOUSE BILL NO. 65
"An Act making corrective amendments to the Alaska Statutes
relating to certain repealed law as recommended by the revisor of
statutes; and providing for an effective date."
- HEARD AND HELD
(* First public hearing)
PREVIOUS ACTION
BILL: HB 67
SHORT TITLE: BAIL HEARING FOR SEX OFFENDERS
SPONSOR(S): REPRESENTATIVES(S) ROKEBERG, Dyson
Jrn-Date Jrn-Page Action
1/25/99 81 (H) READ THE FIRST TIME - REFERRAL(S)
1/25/99 81 (H) JUDICIARY, FINANCE
2/12/99 210 (H) COSPONSOR(S): DYSON
2/24/99 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 66
SHORT TITLE: 1999 REVISOR'S BILL
SPONSOR(S): RULES BY REQUEST OF LEGISLATIVE COUNCIL
Jrn-Date Jrn-Page Action
1/25/99 80 (H) READ THE FIRST TIME - REFERRAL(S)
1/25/99 81 (H) JUDICIARY
2/17/99 (H) JUD AT 1:00 PM CAPITOL 120
2/17/99 (H) SCHEDULED BUT NOT HEARD
2/24/99 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 65
SHORT TITLE: SUPPLEMENTAL REVISOR'S BILL
SPONSOR(S): RULES BY REQUEST OF LEGISLATIVE COUNCIL
Jrn-Date Jrn-Page Action
1/25/99 80 (H) READ THE FIRST TIME - REFERRAL(S)
1/25/99 80 (H) JUDICIARY
2/17/99 (H) JUD AT 1:00 PM CAPITOL 120
2/17/99 (H) SCHEDULED BUT NOT HEARD
2/24/99 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
JANET SEITZ, Staff
to Representative Norman Rokeberg
Alaska State Legislature
Capitol Building, Room 24
Juneau, Alaska 99801
Telephone: (907) 465-4968
POSITION STATEMENT: Testified on HB 67 as staff to prime sponsor.
ANNE D. CARPENETI, Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
Telephone: (907) 465-3428
POSITION STATEMENT: Testified on HB 67 on behalf of the Criminal
Division within the Department of Law.
DOUG WOOLIVER, Administrative Attorney
Administrative Staff
Office of the Administrative Director
Alaska Court System
820 West 4th Avenue
Anchorage, Alaska 99501-2005
Telephone: (907) 264-8265
POSITION STATEMENT: Testified on HB 67 on behalf of the Alaska
Court System.
JAMES CRAWFORD, Assistant Revisor
Legislative Legal Counsel
Legislative Legal and Research Services
Legislative Affairs Agency
130 Seward Street, Suite 409
Juneau, Alaska 99801-2105
Telephone: (907) 465-2450
POSITION STATEMENT: Testified on HB 66 and HB 65 as assistant
revisor of statutes.
ACTION NARRATIVE
TAPE 99-8, SIDE A
Number 0001
CHAIRMAN PETE KOTT called the House Judiciary Standing Committee
meeting to order at 1:10 p.m. Members present at the call to order
were Representatives Kott, Green, Rokeberg, James, Murkowski, Croft
and Kerttula.
HB 67 - BAIL HEARING FOR SEX OFFENDERS
CHAIRMAN KOTT announced the first order of business is HB 67, "An
Act relating to release of certain persons alleged to have
committed certain sexual offenses."
CHAIRMAN KOTT called on Representative Norman Rokeberg, sponsor of
the bill.
Number 0052
REPRESENTATIVE ROKEBERG explained the nature of this bill arose at
the request of a constituent due to the failure of notifying that
constituent's ability to testify before the court as required by
statute. He explained the offender was released on bail then
re-offended. He called on Janet Seitz to explain further.
Number 0210
JANET SEITZ, Staff to Representative Norman Rokeberg, Alaska State
Legislature, explained the constituent is the parent of a minor
child who was sexually abused by a neighbor. The victim's mother
was not notified of the bail hearing at which time she could have
testified. At the hearing on whether or not to release the
perpetrator the judge did not go along with the recommendation of
a 24-hour custodial supervision. The perpetrator was released
until sentencing that will occur sometime this month on a type of
loose supervision. The perpetrator doesn't live next door to the
victim anymore, but the victim's mother is concerned and wants
closer supervision for those accused of a sex offense against a
minor.
Number 0303
REPRESENTATIVE ROKEBERG explained at first it seemed like a simple
exercise, but it really opens up for discussion the entire system
of implementing victims' rights under the state constitution with
the rights of the accused. He explained the act of notification is
problematic because language in statute says either the law
enforcement can give notice "or" the district attorney. The
Department of Law acknowledges its responsibility in giving notice,
but sometimes speedy arraignments don't allow for proper
notification. In this case, there was a plea change and instead of
going to superior court for a full bail hearing there wasn't enough
time for notification. Consequently, Representative Rokeberg wants
to mandate a 24-hour supervision, but in doing so he has opened up
discussions on victims' rights versus the accused, timely
notifications, and who is responsible for timely notifications.
The intent of the bill is to make sure a victim has the ability to
make that victim's view known to the court. He recognizes that
there are speedy trial provisions in statute and fiscal impacts on
the Department of Corrections due to delays. He also recognizes
that a provision to ensure a notification could upset the flow of
activity and proceedings of the court system. He suggested taking
testimony from the Department of Law and holding the bill over for
further consideration. He wants to ensure that the bill
accomplishes its goal, but that it does not create other problems
or unintended consequences.
CHAIRMAN KOTT announced for the record that all members were
present at the call to order.
Number 0550
REPRESENTATIVE JAMES stated she fails to see why the change of plea
and the quick decision put the offender out into society without
any supervision. The fact that he plead guilty to the sexual
assault of a minor alone ought to have triggered supervision.
Number 0603
REPRESENTATIVE ROKEBERG replied the issue surrounds a subsequent
sentencing hearing. The perpetrator had the right to bail prior to
sentencing.
Number 0623
REPRESENTATIVE CROFT noted the perpetrator had the right to bail as
long as the judge didn't find that that perpetrator posed a threat
to the victim or anybody else. It is a condition of bail under any
circumstance.
REPRESENTATIVE JAMES stated she doesn't understand the decision
made by the judge according to existing law.
REPRESENTATIVE ROKEBERG responded the point is the victim didn't
have a chance to make any of the circumstances known to the court
in order to impact the conditions of bail.
Number 0663
REPRESENTATIVE CROFT explained there seems to be three concepts
involved here: notification, testimony and supervision. In other
words, notifying a victim of a hearing, listening to the testimony
and the problems of either requiring or not requiring a person to
testify, and determining supervision. In this instance, there was
a breakdown in notification. He doesn't know whether there is a
significant problem with letting a person testify or not, and he
doesn't know whether supervision should or shouldn't be tightened
up.
Number 0710
REPRESENTATIVE ROKEBERG explained the court system has an opinion
on the issue of testimony and will suggest an amendment.
Number 0751
REPRESENTATIVE MURKOWSKI referred to a murder trial in Fairbanks
whereby a victim's mother was not notified of when the jury's
verdict was released. After meeting with Janice Lienhart with
Victims for Justice, it is her understanding that it is a practice
of the various judges as to whether or not a judge provides notice
to a victim. According to Ms. Lienhart, there are certain judges
who are very conscientious and other judges simply "space it."
Representative Murkowski announced she is now confused and curious
about notification requirements in general.
Number 0825
REPRESENTATIVE ROKEBERG referred to AS 12.61.010 and stated a crime
victim has the right to be notified of the date of trial,
sentencing, including a proceeding before a three-judge panel, an
appeal, any hearing in which the defendant's release from custody
is considered, and the notification of a sentence hearing or court
proceeding.
Number 0850
REPRESENTATIVE MURKOWSKI stated a judge has the right to do it, but
if a judge forgets...
REPRESENTATIVE ROKEBERG interjected and stated in this instance a
notification would have allowed the victim and/or guardian to
indicate the need for 24-hour supervision, for example.
Number 0879
REPRESENTATIVE KERTTULA noted it looks like AS 12.61.010 requires
that a victim be given notice, but it might not be happening
appropriately.
REPRESENTATIVE ROKEBERG stated the problem is the language reads
"or". The law enforcement agency "or" the prosecuting attorney can
give notice. It might be a situation of "who's on first" in some
courts. The Department of Law has indicated it has that
responsibility, but sometimes there is a breakdown, especially when
a young attorney is faced with a stack of arraignment cases. The
committee needs to consider whether that part of the statute needs
to be fixed. That part of the statute is relatively new and
clearly there are some problems that need to be massaged.
Number 1015
REPRESENTATIVE CROFT stated there are certainly breakdowns, but it
can be very difficult to find these victims. In other words, some
victims try not to be found because of the crime involved. He
suggested if notification is made into an absolute requirement then
there should also be language pertaining to reasonable efforts.
Number 1078
REPRESENTATIVE ROKEBERG explained the bill is narrow in scope, but
it has opened up the notification issue and its application to any
kind of crime. He referred to it as a judgement call and wondered
whether a fix should apply to all types of crimes, or focus on
sexual offenses against minors. Domestic violence cases should
also be looked at because those cases can rise to the same level of
re-offense. These are things the committee needs to look at while
at the same time considering the constitutional rights of victims
and the accused.
Number 1172
REPRESENTATIVE CROFT referred to AS 12.61.015 and stated it spells
out the duties of the prosecuting attorney for felonies and
domestic violence. He suggested folding some of the sexual assault
of a minor language into that specific provision.
Number 1201
REPRESENTATIVE ROKEBERG stated that suggestion will be brought up
by the Department of Law.
Number 1247
ANNE D. CARPENETI, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law, noted the
division has been working with the sponsor and has some suggestions
regarding Section 3. She took full responsibility on behalf of the
department for the lack of notification in the case involved. The
department messed up and is sorry. In general, however, she thinks
the department does a good job notifying victims.
Number 1310
REPRESENTATIVE MURKOWSKI asked Ms. Carpeneti what the reasonable
efforts are that the department makes in notifying victims.
MS. CARPENETI replied she would have to talk to the victim witness
coordinators for specifics. It depends on the severity of the case
and the interest of the victim. She knows that messages are left
at work and at home, and forms are given out. It is tough,
however, for the justice system to grind to a halt if contact can't
be made. In the case of bail hearings and certain proceedings, it
is hard to anticipate in advance enough time to provide
notification by mail so efforts are made by phone.
Number 1359
REPRESENTATIVE CROFT asked Ms. Carpeneti whether the victim witness
coordinator she mentioned earlier is specifically charged with
notifying victims.
MS. CARPENETI replied there is a statewide victim assistance
program including a coordinator, and there are people in the
district attorneys office who do just that. She explained this
issue arose in the 1970's when money was provided by the federal
government and since then it has grown proportionally.
Number 1429
CHAIRMAN KOTT asked Ms. Carpeneti how a victim who lives in the
rural part of the state is notified when there is a short notice
for a bail hearing.
MS. CARPENETI replied a person can testify via telephone and
hearsay is acceptable at bail hearings. A person can give a
position to an advocate or district attorney and in turn relay it
to the judge. In relation to the bill, the division has problems
with Section 3 because it requires a judge to solicit comments from
a victim. She said, "We don't want to have to require victims who
don't want to appear in court come in, and especially children, and
make yet another traumatic appearance in front of the court." She
suggested considering before the release of a person charged, a
pending trial, a sentencing or an appeal, for the court to ask the
district attorney or a representative of the state whether or not
a victim has been notified or whether reasonable efforts have been
made. At which time, if an oversight has been made it can be
corrected.
Number 1532
REPRESENTATIVE CROFT stated the suggestion goes only to the issue
of notification, and asked Ms. Carpeneti whether that would slow
things down.
MS. CARPENETI replied she thinks it would work and she doesn't
think it would slow things down because generally victims will have
been notified as a matter of procedure.
Number 1590
REPRESENTATIVE ROKEBERG asked Ms. Carpeneti whether an amendment is
needed to exclude the sex offense in Section 3.
MR. CARPENETI replied she is just addressing subsection (i) in
Section 3.
REPRESENTATIVE ROKEBERG asked Ms. Carpeneti to indicate for the
record that the Department of Law takes responsibility for
notifying victims in relation to the issue of notification between
law enforcement "or" prosecutors. He also asked how the procedure
works.
MS. CARPENETI replied the statute provides that everybody has a
responsibility - the court system, law enforcement and prosecutors.
But, AS 12.61.015 gives the responsibility of various notifications
to the prosecuting attorney and the Department of Law takes that
responsibility for felonies and domestic violence cases.
Number 1685
DOUG WOOLIVER, Administrative Attorney, Administrative Staff,
Office of the Administrative Director, Alaska Court System, stated
the court system has been working with the sponsor on the bill.
His initial concern was the language "shall" in Section 3 because
not all victims want to comment leaving the question what should be
done when there is no one in court to solicit comments from. The
court system suggests language saying "if a victim is present and
wishes to testify the judge shall solicit comments from that
person" making it clear that the process doesn't have to stop if a
victim has chosen not to come to court and making it clear that a
judge has an affirmative duty to make sure that a victim is heard
from. The suggested language, however, doesn't get to the issue of
notification. He explained in many victims' rights provisions
there are no obvious remedies. For example, a defendant has a
constitutional right to bail so the questions become, can a hearing
be put off until the victim is notified and/or at what point is an
offender's rights violated? In addition, the courts are very
familiar with reasonable efforts. But, a reasonable effort creates
the issues/questions of bumping a case to the bottom of the day's
calendar, holding it over to the next day, and holding a defendant
when a case is bumped from a Friday to a Monday. Those are the
types of questions that the court system has been wrestling with in
working with the sponsor for a remedy. The bill is aimed at a
smaller class of cases, but the same problem arises in all cases
because the constitution grants people the right to attend and
speak at these proceedings. Whatever the remedy, it needs to
consider the bigger issues involved not just the focus of the bill.
Number 1878
REPRESENTATIVE JAMES asked Mr. Wooliver in this case because the
perpetrator changed that perpetrator's plea whether the victim
should have been notified of the hearing earlier.
MR. WOOLIVER replied yes. The notice provision still stands
regardless of whether there is a change of plea.
REPRESENTATIVE JAMES stated the change of plea should not have
affected the outcome.
MR. WOOLIVER responded right.
Number 1920
REPRESENTATIVE CROFT explained the right to bail in the
constitution is not absolute. In other words, it is not a right to
bail, but a right to have bail considered based on certain
criteria.
MR. WOOLIVER replied there is a constitutional right to bail, but
there can be conditions set such as a dollar amount. The only
exception is for capital crimes, but there aren't capital crimes in
Alaska. He reiterated everybody in the state is entitled to bail,
but they might not be able to meet the conditions. It can't be
denied, however.
REPRESENTATIVE CROFT asked Mr. Wooliver whether bail can be denied
if that person is a clear danger to society or a victim.
MR. WOOLIVER replied, "You couldn't just say 'no' bail." However,
conditions can be set that are extremely restrictive.
REPRESENTATIVE CROFT asked Mr. Wooliver to give an example of a
restrictive condition other than money.
MR. WOOLIVER replied 24-hour surveillance by a third party
custodian requiring the custodian to be with that person every
waking and sleeping moment.
Number 1999
REPRESENTATIVE CROFT asked Mr. Wooliver what the time limitations
are currently in constitution or statute.
MR. WOOLIVER replied a person is entitled to bail at that person's
first appearance before a judicial officer for felonies. A victim
has the right to be notified and present at that person's hearing,
according to the state constitution. A person can be arrested and
taken to a magistrate immediately for arraignment for misdemeanors.
Number 2041
REPRESENTATIVE CROFT stated the bail is set, but that person is not
necessarily released. He asked Mr. Wooliver what is the typical
time...
MR. WOOLIVER interjected and stated, according to his
understanding, bail is set high in district court to hold a person
over until superior court where a true arraignment is held for
felonies. In superior court a person is notified of the charges
and offered a plea followed by a bail hearing. Initially, a person
shows up at district court and under statute that is when bail has
to be set.
Number 2072
REPRESENTATIVE CROFT wondered whether a statute that says, "you
cannot set bail until reasonable efforts have been made" would be
unconstitutional, but a statute that says, "you can set bail at no
less than one billion dollars, until reasonable efforts have been
made to notify the victim" would be constitutional.
MR. WOOLIVER replied he is not sure. There are also provisions
pertaining to unreasonable bail. A person has the right to meet
bail, particularly if that person isn't found to be extraordinarily
dangerous. Under statute, those provisions can or must be
considered by a judge. They are not mandated. He doesn't know
whether the legislature can or cannot mandate a person charged to
be subject to an unreasonable bail.
REPRESENTATIVE CROFT asked Mr. Wooliver whether the legislature can
set a limit at all reasonable or not. Does reasonable mean there
needs to be an individualized consideration? he further asked.
MR. WOOLIVER replied he is not sure whether a specific amount can
be set in statute.
REPRESENTATIVE CROFT asked Mr. Wooliver whether the practice of
setting bail at the first adjudicative session is a statutory or
constitutional requirement.
MR. WOOLIVER replied it is a statutory requirement, but he is not
sure if it reflects a certain constitutional requirement.
Number 2173
REPRESENTATIVE KERTTULA stated, in looking at notes to the
constitution, all circumstances would have to be looked at instead
of just setting pro forma bail. She explained, normally, if a
judge wants to set bail that can't be met that judge makes it
cash-only and high enough to avoid a bondsman.
Number 2204
REPRESENTATIVE ROKEBERG stated, not having been a part of the court
system in any capacity, he is troubled by the comments coming from
the court's counsel regarding the unwritten rule of making a bail
unattainable to accommodate the flow of business. There could be
an instance when a person could meet an "unattainable" bail. He
reiterated he is uncomfortable with the assumption that a
perpetrator is not going to get out by not meeting bail on a first
appearance. He asked Mr. Wooliver what the time line is between
the arraignment and the next subsequent step.
Number 2270
MR. WOOLIVER replied he is not sure exactly when a perpetrator is
arraigned, but believes it is the next day. A bail hearing can be
put off as well in order to find a third party custodian, for
example. In speaking with judges, however, victims have almost
always been notified by that time. The problem is with the initial
appearance in district court where an arraignment can happen
immediately or within less than 24 hours. The problem is not in
superior court.
Number 2313
REPRESENTATIVE ROKEBERG stated, in trying to find the point of
mandating a notification, he suggests looking at a second bail
hearing and placing conditions on a release. It would minimize the
number of occurrences thereby dispensing the notification at the
first hearing, unless there's a constitutional requirement. He
explained he is trying to find a practical place in the chain of
events to perfect a notification without putting an undue burden
and cost on the system.
Number 2343
CHAIRMAN KOTT stated it is his understanding that excessive bail is
unconstitutional which is why an unreasonable standard is used. He
asked Mr. Wooliver whether that is also his understanding.
MR. WOOLIVER indicated in the affirmative.
CHAIRMAN KOTT asked Mr. Wooliver whether there is a time limit
established on the right to a speedy trial and whether a subsequent
bail hearing would have an effect on that provision.
MR. WOOLIVER replied the speedy trial provision is 120 days. It is
frequently backed up with motions, but that is the starting point.
Number 2384
REPRESENTATIVE GREEN asked Mr. Wooliver whether the constitutional
right to bail is prior to being found guilty.
MR. WOOLIVER replied there is a constitutional right to bail prior
to trial. Most provisions after trial and prior to sentencing are
statutory. However, there is no constitutional right to be
released after conviction.
Number 2414
REPRESENTATIVE GREEN wondered whether the problem could be fixed in
statute.
MR. WOOLIVER replied in the affirmative.
Number 2420
CHAIRMAN KOTT referred to the language, "a judicial officer shall
solicit comments", and asked Mr. Wooliver whether this could turn
into a mini-trial with cross-examination of the victim.
MR. WOOLIVER replied if a victim is sworn in to testify that victim
is subject to cross-examination. However, frequently a victim will
offer a statement over the phone or in the form of a letter, and in
that case it won't turn into a trial.
Number 2457
REPRESENTATIVE CROFT asked Mr. Wooliver whether this issue has come
up in any other state.
MR. WOOLIVER replied as the result of researching case law and
reviews, he has only found references to the problems, but he
hasn't seen resolutions to the problems.
TAPE 99-8, SIDE B
Number 0001
REPRESENTATIVE ROKEBERG states he feels like he owes the committee
an apology for bringing forward this issue. But, an individual has
been injured by a system with faults, and those faults are not
small, technical corrections but a function of having to look at
the entire judiciary system and how it relates to victims' rights.
Number 0049
REPRESENTATIVE JAMES asked Mr. Wooliver what kind of cure is there
for the victim since that victim's rights were not effected.
MR. WOOLIVER replied that is the crux of the problem. The law
knows how to deal with violations of defendants' rights, but it is
not familiar with victims' rights. Victims have always be a part
of the process, but not as a legal entity. When a defendant's
rights are violated, the remedies are well established and not hard
to find. But, when a victim's rights are violated a prosecution or
court's offenses can't be held against the defendant. He said,
"You can't take that out on the defendant by saying okay well the
prosecution just simply has refused to notify the victim so you
have to stay in jail. That isn't an option." Short of creating
civil penalties against the state, he doesn't know what kind of
remedies there are for those types of violations.
Number 0128
REPRESENTATIVE JAMES noted the issue begs for a solution,
particularly if a victim is re-victimized due to the failure of a
notification. She asked Mr. Wooliver whether he agrees that the
statutes are just missing those conditions and should they be
prescribed.
MR. WOOLIVER replied the statutes are the appropriate place for a
remedy, if someone can come up with one. It might be easier,
however, to try to reduce the instances of failure, such as
providing more resources for victim advocates within the Department
of Law.
Number 0174
REPRESENTATIVE JAMES asked Mr. Wooliver whether there is a
provision that wouldn't allow a hearing to go forward providing
that a victim hasn't been notified.
MR. WOOLIVER replied according to some judges that he talked to a
hearing could be held off until the next day for example. None of
the judges were clear about whether that is allowed, however.
There isn't an obvious answer provided in case law. He reiterated
judges are very familiar with the reasonable-effort standard.
Number 0240
REPRESENTATIVE JAMES commented putting victims' rights in
constitution has more force than statute, and stated a solution to
this issue has to be found.
MR. WOOLIVER stated some of these rights have been in statute for
a long time and they aren't just statutes anymore. In other words,
a person has a constitutional right to be allowed to attend these
proceedings.
Number 0261
CHAIRMAN KOTT asked Mr. Wooliver, when soliciting comments from a
victim, whether it is satisfactory to notify that victim's guardian
if underage.
MR. WOOLIVER replied he is not sure how it works in practice.
There is confusion because the definition of "victim" in statute is
a minor or parent or guardian. It is not clear whether that means
"or" or "and". For example, if a minor wants to speak but the
mother won't allow that minor to speak, it isn't clear in statute
whether the victim is the minor "or" mother, or the minor "and" the
mother. There is also a problem when there is conflicting
testimony. He doesn't know, therefore, whether notifying a minor
is adequate or whether the parent or guardian would also have to be
notified.
Number 0321
CHAIRMAN KOTT commented this could be a tangled mess when for
example a victim is a daughter, the perpetrator is a father, and
the mother is in love with the father and doesn't want to do
anything to harm that relationship.
Number 0341
REPRESENTATIVE ROKEBERG asked Mr. Wooliver whether there is
anything in statute now or even as a matter of court rule to force
a judge to ask whether reasonable efforts have been made to contact
a victim.
MR. WOOLIVER replied no there is nothing required in statute or
court rule even though it is the practice of some judges.
REPRESENTATIVE ROKEBERG replied the word "some" judges is the point
he wants to make. He asked Mr. Wooliver whether mandating that is
going in the right direction.
MR. WOOLIVER replied yes.
Number 0381
REPRESENTATIVE GREEN stated, in reference to Representative
Rokeberg's apology to the committee, often times the wheels of
justice and the wheels of this committee grind slow and fine. That
is good, however, because is educates the committee members who are
not lawyers and creates better laws.
Number 0415
REPRESENTATIVE MURKOWSKI noted that paychecks used to be held if an
opinion was not released within six months in an effort to not get
judges to sit on cases. She stated that might by a type of
incentive a judicial officer needs.
Number 0480
CHAIRMAN KOTT announced that the committee is waiting for the
mother of the victim to testify via teleconference.
CHAIRMAN KOTT called for a brief at-ease at 1:08 p.m. and called
the meeting back to order at 1:12 p.m.
CHAIRMAN KOTT explained the committee has made a reasonable effort
to contact the victim's mother and unfortunately she is not
available.
CHAIRMAN KOTT announced it is his intent to hold the bill over for
further consideration.
REPRESENTATIVE ROKEBERG pledged his desire to work further on the
bill and to schedule time to invite the victim's mother to testify.
He would like to get her testimony on record.
REPRESENTATIVE JAMES wondered whether there should be a
determination of exactly who the victim is and who has the right to
speak. It needs to be determined ahead of time and should be part
of a fix to this issue.
CHAIRMAN KOTT agreed and stated it needs to be delineated clearly.
CHAIRMAN KOTT announced the bill will be held over for further
consideration.
HB 66 - 1999 REVISOR'S BILL
CHAIRMAN KOTT announced the next order of business is HB 66, "An
Act making corrective amendments to the Alaska Statutes as
recommended by the revisor of statutes; and providing for an
effective date."
CHAIRMAN KOTT called on James Crawford, assistant revisor of
statutes, to present the bill.
Number 0627
JAMES CRAWFORD, Assistant Revisor, Legislative Legal Counsel,
Legislative Legal and Research Services, Legislative Affairs
Agency, noted the revisor's bill is written under the authority of
AS 01.05.036. He explained HB 66 is cut and dry and he intends to
only speak to a couple of the more interesting sections. Firstly,
he announced he has an amendment (Amendment 1) to offer. It
addresses a problem relating to executive and legislative ethics
and campaign finance laws. It changes AS 15.13.116(a) from (a)(5)
to (a)(4) because of the removal of (a)(2) correcting a
cross-reference. The amendment also corrects a typographical error
to page 14, line 18. The amendment also removes a repealer that
has the effect of adding a tract of land to the Yakataga State Game
Refuge. The tract in question is referred to as Cape Suckling.
The tract was a subject of litigation involving the commissioner of
the Department of Natural Resources and the University of Alaska
regarding timber rights in Cape Suckling and the fair market value.
The settlement agreement transferred the university's timber rights
from Cape Suckling to other land. Therefore, there couldn't be an
agreement on the fair market value and the sections in questions
couldn't have the effect of adding land to the game refuge.
However, in agreement with updated information from the attorney
involved, it is not an irrevocable transfer. There is a 20 year
window during which certain escape clauses can operate to revest
the timber interest. In other words, the sections are not dead,
but merely dormant. The revisor feels, therefore, that it is
inappropriate to repeal those sections and recommends removing the
repealer.
MR. CRAWFORD started to explain the bill. He noted Section 6
amends a definition section that relates to the Uniform Probate
Code (UPC) in Title 13. It was subject to a series of amendments
in chapters 75, SLA 1996 in order to bring Title 13 in-line with
the national UPC. At that time, the UPC definition of "person" was
not added to Title 13. It was left out because the general
definition of "person" in Title 1 was thought to be identical to
the UPC definition when in fact the UPC definition specifically
mentions "government or governmental subdivision or agency" not
found in Title 1.
Number 0924
REPRESENTATIVE CROFT asked Mr. Crawford to explain Sections 2 and
3 of the bill.
MR. CRAWFORD replied Sections 2 and 3 amend AS 09.44.040 and
09.55.069, respectively, to reflect the appeal of the relief fund
that those sections reference. The fund was repealed about 30
years ago.
MR. CRAWFORD continued explaining the bill. Section 12 amends AS
24.60.050(d) which relates to deadlines for filing certain
disclosures for legislators and legislative employees. Subsection
(c) was amended last year and subsection (d) was not due to an
oversight. Subsection (c) and (d) have always had the same date
reference.
Number 1069
REPRESENTATIVE GREEN made a motion to adopt Amendment 1
(1-LS0339\A.1, Crawford, 2/23/99). There being no objection, it
was so adopted.
Number 1088
REPRESENTATIVE GREEN made a motion to move HB 66, as amended, from
the committee with individual recommendations and the attached zero
fiscal note. There being no objection, CSHB 66(JUD) was so moved
from the House Judiciary Standing Committee.
HB 65 - SUPPLEMENTAL REVISOR'S BILL
Number 1126
CHAIRMAN KOTT announced the next order of business is HB 65 "An Act
making corrective amendments to the Alaska Statutes relating to
certain repealed law as recommended by the revisor of statutes; and
providing for an effective date."
CHAIRMAN KOTT called on James Crawford, assistant revisor of
statutes, to present the bill.
MR. CRAWFORD explained there are five substantive sections in HB 65
that relate to an Act passed in 1994 and in the same year repealed.
In this case they were conflicting bills. He explained chapters 45
and 124, SLA 1994 added references to a statute while chapter 118,
SLA 1994 repealed that statute. The bill attempts to correct the
problem in a manner consistent with legislative intent connected to
chapters 45 and 125, SLA 1994.
MR. CRAWFORD explained Sections 1, 2, 4 and 5 address chapter 45,
SLA 1994 pertaining to certain elderly and disabled adults and
minors who receive home care services or who might receive those
services in the near future. The legislative intent was to
increase protection and protect them against fraud. The event that
led to this issue related to an elderly woman who was robbed by a
home care provider for $500. That provider also accessed the
woman's financial accounts. The legislature through chapter 45
added a criminal records check requirement prior to certain
entities receiving state funds. Under AS 12.62.035, a requester
would get information on three categories: convictions for
felonies, crimes involving any contribution to the delinquency of
a minor, and convictions for sex crimes. The statute was repealed
and a new one enacted - AS 12.62.160. The solution replaces the
term "records" with the term "criminal justice information" and
replaces the reference to AS 12.62.160. The new statute is not an
exact match to the old statute, however. In other words, those who
request records could get more information, but it is consistent
with legislative intent.
Number 1410
MR. CRAWFORD explained Section 3 is slightly different. It
contains a reference to chapter 124, SLA 1994 that only contains
one of three categories of records. He noted the legislative
history wasn't helpful in determining intent for chapter 124, but
he was able to conclude from language in the statute itself that
the intent was to keep the scope more narrow. The solution
replaces the term "sex crimes" with the definition of sex crimes
found in the old repealed statutes. In other words, there is no
change in Section 3 between the suggested solution and what was
under the old reference.
MR. CRAWFORD stated, in summary, some of the solutions are not a
perfect fit with respect to the old statute, but are consistent
with legislative intent to the extent that legislative history
revealed it.
Number 1510
REPRESENTATIVE GREEN asked Mr. Crawford, based on his research,
whether the issue was addressed by the same committees or whether
there were two different groups involved causing the oversight.
MR. CRAWFORD replied yes chapters 45 and 124, SLA 1994 which added
the reference didn't go through the same committees.
Number 1550
REPRESENTATIVE GREEN stated normally there is a clear track to
follow when addressing a revisor statute, but in this case Mr.
Crawford had to build a bridge of his own.
MR. CRAWFORD replied correct. The solution depended on an analysis
of legislative history requiring an extrapolation. He justified
placing it in a revisor's bill because it tracks legislative intent
and attempts to do what the legislature would have done if it had
been aware of the problem.
Number 1612
REPRESENTATIVE GREEN wondered whether an advisor's authority to
make changes versus changes made by the legislature requires some
"walls" in this case.
MR. CRAWFORD responded the revisor's bill is a service to
legislators and if there is anything that causes concern it is a
legislator's prerogative to remove it and await a solution in a
substantive bill.
Number 1676
REPRESENTATIVE GREEN stated he is not suggesting that. He is
concerned about establishing a precedent.
MR. CRAWFORD replied certainly.
Number 1689
REPRESENTATIVE CROFT asked Mr. Crawford to review the scopes that
have changed in Sections 4 and 5.
MR. CRAWFORD replied Sections 1,2,4 and 5 are not specific enough
to request national level criminal justice information records
according to the Department of Public Safety. The sections give a
category of records more or less similar to what the old statute
gave, but not exactly. In some situations it won't be close and in
some cases more information will be given, such as a person's bail
status, a reversal of a conviction notice, or acquittal
information.
Number 1840
REPRESENTATIVE CROFT asked Mr. Crawford why the same scope can't be
asked for.
MR. CRAWFORD replied it can, but in looking at the legislative
intent he came down on being more protective of the individuals the
legislators were trying to protect. As an alternative, he can try
to reproduce what the old statute would have given in consultation
with the Department of Public Safety.
Number 1940
REPRESENTATIVE KERTTULA asked Mr. Crawford what exactly is the
revisor's authority in statute.
MR. CRAWFORD read part of AS 01.05.036.
REPRESENTATIVE KERTTULA commented the statute is broader than she
thought. She further noted that she has never seen this type of
substantive change in a revisor's bill requiring verbal information
from people in order to come up with intent. The court uses the
plain language of the statute before going behind it. Perhaps, a
committee bill should be considered.
Number 2063
CHAIRMAN KOTT agreed with Representative Kerttula. He doesn't
recall a revisor's bill being this substantive. It really is more
of a policy call than just notations and changes of previous
actions that went unnoticed. He would tend to support a committee
bill or have Mr. Crawford go back with the Department of Public
Safety and craft a bill reflecting the earlier piece.
Number 2115
REPRESENTATIVE GREEN asked Mr. Crawford what sort of effort would
it take to re-create a bill versus starting over.
MR. CRAWFORD replied it would be a lot easier to craft a
substantive bill rather than re-create legislative intent. He
explained he chose a revisor's bill to present the options early in
the legislative session. He reiterated if there is any reason to
feel uncomfortable a substantive bill is the better way to go.
CHAIRMAN KOTT noted his appreciation for Mr. Crawford's efforts.
REPRESENTATIVE MURKOWSKI praised Mr. Crawford's efforts in
researching legislative intent and noted that he will be around to
testify on a substantive bill.
Number 2286
CHAIRMAN KOTT announced it is his intent to hold the bill over and
to work on a substantive bill. He suggested asking the chairman of
the House Health, Education and Social Services Committee to take
this on and if that committee is not willing to maybe the House
Judiciary Committee should take it on.
Number 2291
REPRESENTATIVE CROFT suggested directing Mr. Crawford to draft a
more narrow bill to match the specific crimes covered in the
original bill.
CHAIRMAN KOTT replied according to Mr. Crawford he would rather see
a substantive bill crafted than spend time reconstructing intent.
It would be cleaner as well.
Number 2365
REPRESENTATIVE GREEN asked Chairman Kott whether there is a reason
for having the House Health, Education and Social Services
Committee take it on rather than the House Judiciary Committee.
CHAIRMAN KOTT replied he doesn't have a problem with drafting it as
a House Judiciary Committee bill.
Number 2419
MR. CRAWFORD stated he remains neutral and will do whatever the
committee directs him to do.
CHAIRMAN KOTT announced he will have Legislative Legal Counsel
draft a bill and run it by Mr. Crawford to ensure that the intent
has been captured.
MR. CRAWFORD replied he would be happy to give an assessment and
explained because it will be a substantive bill it is not
constrained by the 1994 legislative intent.
ADJOURNMENT
Number 2503
CHAIRMAN KOTT adjourned the House Judiciary Standing Committee
meeting at 2:46 p.m.
[THE ADJOURNMENT WAS NOT RECORDED ON TAPE]
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