Legislature(1999 - 2000)
03/29/2000 01:20 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
March 29, 2000
1:20 p.m.
MEMBERS PRESENT
Representative Joe Green
Representative Norman Rokeberg
Representative Lisa Murkowski
Representative Eric Croft
Representative Beth Kerttula
MEMBERS ABSENT
Representative Pete Kott, Chairman
Representative Jeannette James
COMMITTEE CALENDAR
HOUSE BILL NO. 398
"An Act relating to the Alaska Life and Health Insurance Guaranty
Association."
- MOVED CSHB 398(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 369
"An Act relating to property exemptions under the Alaska Exemptions
Act; and providing for an effective date."
- MOVED CSHB 369(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 392
"An Act relating to continuances for temporary placement hearings
that follow emergency custody of a minor; and amending Rule 10,
Alaska Child in Need of Aid Rules."
- MOVED CSHB 392(HES) OUT OF COMMITTEE
HOUSE BILL NO. 292
"An Act adopting the National Crime Prevention and Privacy Compact;
making criminal justice information available to interested persons
and criminal history record information available to the public;
making certain conforming amendments; and providing for an
effective date."
- MOVED CSHB 292(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 294
"An Act relating to violations of an order to submit to
deoxyribonucleic acid (DNA) testing, to court orders and conditions
of parole to collect samples for DNA testing, to removal of
material from the DNA identification registration system; and to
the collection and processing of samples from certain burglary
perpetrators for the DNA identification registration system; and
providing for an effective date."
- HEARD AND HELD
PREVIOUS ACTION
BILL: HB 398
SHORT TITLE: LIFE AND HEALTH INSURANCE GUARANTY ASSN
Jrn-Date Jrn-Page Action
2/16/00 2218 (H) READ THE FIRST TIME - REFERRALS
2/16/00 2218 (H) L&C, JUD
3/03/00 (H) L&C AT 3:15 PM CAPITOL 17
3/03/00 (H) Moved CSHB 398(L&C) Out of Committee
3/03/00 (H) MINUTE(L&C)
3/06/00 2420 (H) L&C RPT CS(L&C) 3DP 2NR
3/06/00 2420 (H) DP: HARRIS, CISSNA, ROKEBERG;
3/06/00 2420 (H) NR: HALCRO, MURKOWSKI
3/06/00 2420 (H) ZERO FISCAL NOTE (DCED)
3/17/00 2598 (H) CORRECTED L&C CS
3/22/00 (H) JUD AT 1:00 PM CAPITOL 120
3/22/00 (H) HEARD & HELD
3/22/00 (H) MINUTE(JUD)
3/29/00 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 369
SHORT TITLE: PROPERTY EXEMPTIONS
Jrn-Date Jrn-Page Action
2/11/00 2183 (H) READ THE FIRST TIME - REFERRALS
2/11/00 2184 (H) L&C, JUD
3/01/00 (H) L&C AT 3:15 PM CAPITOL 17
3/01/00 (H) Moved Out of Committee
3/01/00 (H) MINUTE(L&C)
3/03/00 2389 (H) L&C RPT 2DP 2NR
3/03/00 2389 (H) DP: HARRIS, ROKEBERG; NR: MURKOWSKI,
3/03/00 2389 (H) HALCRO
3/03/00 2389 (H) ZERO FISCAL NOTE (LAW)
3/22/00 (H) JUD AT 1:00 PM CAPITOL 120
3/22/00 (H) Heard & Held
3/22/00 (H) MINUTE(JUD)
3/29/00 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 392
SHORT TITLE: CONTINUANCES OF CINA HEARINGS
Jrn-Date Jrn-Page Action
2/16/00 2216 (H) READ THE FIRST TIME - REFERRALS
2/16/00 2216 (H) HES, JUD
2/29/00 (H) HES AT 3:00 PM CAPITOL 106
2/29/00 (H) Moved CSHB 392(HES) Out of Committee
2/29/00 (H) MINUTE(HES)
3/01/00 2376 (H) COSPONSOR(S): DYSON
3/03/00 2392 (H) HES RPT CS(HES) NT 4DP 1NR
3/03/00 2392 (H) DP: DYSON, COGHILL, WHITAKER,
KEMPLEN;
3/03/00 2392 (H) NR: BRICE
3/03/00 2392 (H) 2 ZERO FISCAL NOTES (LAW, DHSS)
3/29/00 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 292
SHORT TITLE: DISCLOSURE OF CRIMINAL HISTORY RECORDS
Jrn-Date Jrn-Page Action
1/21/00 1954 (H) READ THE FIRST TIME - REFERRALS
1/21/00 1954 (H) STA, JUD
1/21/00 1955 (H) ZERO FISCAL NOTE (DPS)
1/21/00 1955 (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) Heard & Held
3/07/00 (H) MINUTE(STA)
3/09/00 (H) STA AT 8:00 AM CAPITOL 102
3/09/00 (H) Heard & Held
3/09/00 (H) MINUTE(STA)
3/16/00 (H) STA AT 8:00 AM CAPITOL 102
3/16/00 (H) Moved Out of Committee
3/16/00 (H) MINUTE(STA)
3/16/00 2566 (H) STA RPT 1DP 4NR
3/16/00 2566 (H) DP: JAMES; NR: SMALLEY, KERTTULA,
3/16/00 2566 (H) HUDSON, WHITAKER
3/16/00 2566 (H) ZERO FISCAL NOTE (DPS) 1/21/00
3/16/00 2566 (H) REFERRED TO JUDICIARY
3/29/00 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 294
SHORT TITLE: DNA TESTING & REGISTRATION
Jrn-Date Jrn-Page Action
1/21/00 1958 (H) READ THE FIRST TIME - REFERRALS
1/21/00 1958 (H) JUD, FIN
1/21/00 1958 (H) INDETERMINATE FISCAL NOTE (ADM)
1/21/00 1958 (H) ZERO FISCAL NOTE (DPS)
1/21/00 1958 (H) GOVERNOR'S TRANSMITTAL LETTER
1/21/00 1958 (H) REFERRED TO JUDICIARY
3/29/00 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
JOHN MANLY, Staff
to Representative John Harris
Alaska State Legislature
Capitol Building, Room 110
Juneau, Alaska 99801
POSITION STATEMENT: Presented HB 398 and HB 369 on behalf of the
sponsor.
JOHN GEORGE, Lobbyist for
American Council of Life Insurers
3328 Fritz Cove Road
Juneau, Alaska 99801
POSITION STATEMENT: Testified on HB 398.
ROBERT SWEENEY, Representative
American Council of Life Insurers
(Address not provided)
Washington, D.C.
POSITION STATEMENT: Testified on HB 398.
STAN RIDGEWAY, Deputy Director
Division of Insurance
Department of Community & Economic Development
P.O. Box 110805
Juneau, Alaska 99811-0805
POSITION STATEMENT: Testified on HB 398.
CHRIS MILLER, Research & Analysis
Central Office
Division of Administrative Services
Department of Labor & Workforce Development
P.O. Box 21149
Juneau, Alaska 99802-1149
POSITION STATEMENT: Testified on HB 369.
REPRESENTATIVE JIM WHITAKER
Alaska State Legislature
Capitol Building, Room 13
Juneau, Alaska 99801
POSITION STATEMENT: Sponsor of HB 392.
BLAIR McCUNE, Deputy Director
Central Office
Public Defender Agency
Department of Administration
900 West 5th Avenue, Suite 200
Anchorage, Alaska 99501-2090
POSITION STATEMENT: Testified on HB 392.
KENNETH E. BISCHOFF, Director
Central Office
Division of Administrative Services
Department of Public Safety
P.O. Box 111200
Juneau, Alaska 99811-1200
POSITION STATEMENT: Presented HB 292.
GLADYS LANGDON, Children Services Manager
Anchorage Region
Family Services
Division of Family & Youth Services
Department of Health & Social Services
550 West 8th Avenue, Suite 304
Anchorage, Alaska 99501-3553
POSITION STATEMENT: Testified on HB 292.
LINDA KESTERSON, Assistant Attorney General
Natural Resources Section
Civil Division
Department of Law
1031 West 4th Avenue, Suite 200
Anchorage, Alaska 99501
POSITION STATEMENT: Testified on HB 292 in relation to the
amendment to include the Alcoholic Beverage Control Board.
DOUG GRIFFIN, Director
Alcoholic Beverage Control Board
550 West 7th Avenue, Suite 540
Anchorage, Alaska 99501
POSITION STATEMENT: Testified on HB 292 in relation to the
amendment to include the Alcoholic Beverage Control Board.
DEL SMITH, Deputy Commissioner
Office of the Commissioner
Department of Public Safety
P.O. Box 111200
Juneau, Alaska 99811-1200
POSITION STATEMENT: Presented HB 294.
LEANE STRICKLAND, Supervisor
Scientific Crime Detection Laboratory
Department of Public Safety
5500 East Tudor Road
Anchorage, Alaska 99507-1221
POSITION STATEMENT: Testified on HB 294.
JOHN McKINNON, Officer
Anchorage Police Department
4501 South Bragaw Street
Anchorage, Alaska 99507
POSITION STATEMENT: Testified on HB 294.
JENNIFER RUDINGER, Executive Director
Alaska Civil Liberties Union
P.O. Box 201844
Anchorage, Alaska 99520-1844
POSITION STATEMENT: Testified in opposition to HB 294.
ROBERT BUTTCANE, Juvenile Probation Officer
Youth Corrections
Division of Family and Youth Services
Department of Health & Social Services
P.O. Box 110630
Juneau, Alaska 99811
POSITION STATEMENT: Testified in support of HB 294.
CANDACE BROWER, Parole Board Officer
Parole Board
Division of Community Corrections
Department of Corrections
P.O. Box 112000
Juneau, Alaska 99811-2000
POSITION STATEMENT: Testified on HB 294.
ACTION NARRATIVE
TAPE 00-41, SIDE A
Number 0001
REPRESENTATIVE JOE GREEN called the House Judiciary Standing
Committee meeting to order at 1:20 p.m. Members present at the
call to order were Representatives Green, Rokeberg, Murkowski,
Croft and Kerttula. No further members arrived after the meeting
was called to order.
HB 398 - LIFE AND HEALTH INSURANCE GUARANTY ASSN
REPRESENTATIVE GREEN announced the first order of business would be
HOUSE BILL NO. 398, "An Act relating to the Alaska Life and Health
Insurance Guaranty Association."
Number 0068
JOHN MANLY, Staff to Representative John Harris, Alaska State
Legislature, presented the bill on behalf of the sponsor. At the
last committee hearing, testimony had indicated that there was
confusion on what the bill does, he noted. Mr. Manly referred to
a handout titled "Summary of Principal Changes to the NAIC Life and
Health Insurance Guaranty Association Model Act" and indicated it
should help explain what the bill does. He turned to Mr. John
George to help explain the bill further.
Number 0150
JOHN GEORGE, Lobbyist for American Council of Life Insurers, came
before the committee to testify. He had spoken on the bill last
week, he said, and instead of repeating himself he would prefer
that the committee hear from an expert, Mr. Robert Sweeney. He
noted that there was a proposed amendment, which is very important
for technical reasons. He explained that there was a
misinterpretation of the bill drafter going from NAIC [National
Association of Insurance Commissioners] model language to Alaska
statute language. He said Robert Sweeney had worked hard with NAIC
in coming up with the model Act, and had worked hard with the bill
sponsor in coming up with the bill.
Number 0271
ROBERT SWEENEY, Representative, American Council of Life Insurers,
testified via teleconference from an off-net site in Washington,
D.C. He referred committee members to the handout referenced
above, which explains the concepts set forth in a series of
amendments to the NAIC Life and Health Insurance Guaranty
Association Model Act, he said, an Act that is very technical and
somewhat arcane.
MR. SWEENEY noted the following changes to the Act: it facilitated
the implementation of guaranty association benefits more promptly
and efficiently, thereby providing benefits to policyholders more
expeditiously and at a lower cost; it clarified a number of
provisions which could foster delay by promoting litigation; and it
provided additional benefits to policyholders. Mr. Sweeney said
that a further amendment clarified the appropriate coverage limits
on equity indexed products, which he indicated is a relatively new
innovation in the insurance marketplace.
Number 0384
REPRESENTATIVE ERIC CROFT asked Mr. Sweeney whether the amendment
clarifies a number of provisions that could foster delay by
promoting litigation or clarifies a number of provisions which, if
not fixed, could foster delay by promoting litigation.
MR. SWEENEY replied that the amendment clarifies a number of
provisions that would eliminate frivolous and costly litigation in
many areas.
Number 0428
REPRESENTATIVE CROFT asked Mr. Sweeney to indicate a few of the
policy calls in the bill that might be controversial. He conveyed
his understanding that most of what is in the bill is for technical
and updating purposes.
MR. SWEENEY replied he wouldn't say that anything in the bill is
controversial. There are issues in this area that are
controversial, but due to some unique Alaska code provisions the
amendment does not ask Alaska to adopt certain provisions. For
example, Alaska does not have a tax offset for assessments paid
into the guaranty association. There are some substantive issues
in the bill. The amendment shifts the responsible guaranty
association for structured settlement annuities - which are given
in a payout after a civil litigation - from the state of residence
of the owner to the state of residence of the payee, in order to
evenly spread the amounts paid by different state guaranty
associations. That same shift would apply to unallocated annuity
contracts, which are covered under the Alaska guaranty association
statute. The amendments also give the Alaska State Life and Health
Insurance Guaranty Association the authority to play an active role
in determining how assets are distributed in insolvency, which is
entirely appropriate given the fact that they are often the largest
creditor involved. The amendments also allow for the state
guaranty association to propound a solvency plan.
Number 0645
REPRESENTATIVE CROFT asked Mr. Sweeney whether he is right in
saying that the main challenge to the life and health guaranty
association is the transfer to another person, while in comparison
the main challenge to property is to "wrap it up."
MR. SWEENEY replied that is a fair characterization. The primary
distinction between the property and casualty fund, and the life
and health guaranty association is the movement of a block of
business to a solvent carrier in order to continue payments to
beneficiaries and annuitants.
Number 0707
REPRESENTATIVE ROKEBERG noted that there was testimony in the House
Labor and Commerce Committee indicating some contention about the
use of the word "intervene" on page 13, line 20, of CSHB 398(L&C).
He asked Mr. George to discuss the process he went about in dealing
with the director of the Division of Insurance [Department of
Community & Economic Development] to implement this bill. He said
it is important that the committee members understand that the bill
has been fully reviewed by the director and that the process was a
mutual and balanced effort.
Number 0800
MR. GEORGE replied that the NAIC model Act is a product of the
National Association of Insurance Commissioners, and has been
worked on continually and consistently by all of the states and
industry members, for years, in order to come up with a plan that
will work generically in all states. It is up to the director or
commissioner of each state to get the model Act adopted. In
Alaska, there were 21 points of discussion with the Division of
Insurance in relation to the NAIC model Act. Of those, 20 points
were worked out to where there is complete agreement. He said:
[There was] one thing that we agreed not to agree on, and
that was when going to court, the bill that was proposed
said that the guaranty association could appear in those
proceedings. We wanted to add the word, "appear or
intervene," or "and intervene." That was the amendment
in Labor and Commerce, ... to add "intervene" in a couple
of places. Other than the word "to intervene," I believe
we have 100 percent agreement with the Division of
Insurance on the wording in this bill, and it's not
because we started out that way; it's because we worked
diligently, and I do give a lot of credit to the Division
of Insurance and also the ACLI [American Council of Life
Insurers] staff for coming together and coming up with
those agreements. The last thing I wanted to do is bring
a bill in here with 21 talking points with the Division
of Insurance and have those discussions in this
committee.
Number 0920
REPRESENTATIVE ROKEBERG asked Mr. Sweeney whether the amounts
covered by the guaranty association have been revised in the bill
in any particular area.
MR. SWEENEY replied there were no changes made to the amounts. It
was determined by the NAIC that it was not necessary at this time.
He noted that there were some increases to the amounts several
years ago in the last round of amendments.
REPRESENTATIVE ROKEBERG asked Mr. Sweeney whether he was part of
the negotiating team for Alaska.
MR. SWEENEY replied, "Yes."
REPRESENTATIVE ROKEBERG asked Mr. Sweeney to describe any changes
made from the NAIC model Act to accommodate the director of the
Division of Insurance.
MR. SWEENEY explained that there were several instances when he was
able to talk to the director and agree to a few points that the
division felt were very important. He doesn't have the most recent
version of the bill before him, he noted, so he cannot speak
further to any other changes. He deferred to Mr. George.
MR. GEORGE said he isn't sure that he could point out the changes.
REPRESENTATIVE ROKEBERG withdrew his question. He said he'd wanted
to make the point that there was active bargaining with the
director of the Division of Insurance because he has to implement
a substantial part of what is in the bill.
Number 1064
REPRESENTATIVE KERTTULA said:
This may be a question for Mr. Ridgeway [Deputy Director,
Division of Insurance, Department of Community & Economic
Development], but in looking at the legislation it looks
like there's a number of exemptions to ... the coverage.
And, I'm looking at page 4 of the bill, and so, again, it
may be better to Mr. Ridgeway. But it looks like if a
person who normally would be covered has any coverage by
an association of another state, they're exempted from
coverage here, and I just wondered why it's any coverage
and it's not drafted to be the part of the coverage that
is provided by the other association. ... I just wondered
if there might be circumstances where another association
gave half the coverage but not all the coverage.
Number 1114
MR. SWEENEY replied that the provision is inserted purely to avoid
instances of duplicate coverage, in order to defray the Alaska Life
and Health Guaranty Association of potentially paying a covered
individual or entity when another state is already covering that
individual or entity.
Number 1162
REPRESENTATIVE KERTTULA said she can understand that. She
specified that she was troubled by the word "any." There seems to
be a distinction between those who receive partial coverage, she
said. The language reads, "that part of an unallocated annuity
contract that is not issued ...."
MR. SWEENEY replied that the word "any" is not intended to be
misleading; it is meant to get at the very situation he had
described earlier. It is not meant to [imply] that a person would
not receive coverage in one state.
Number 1216
REPRESENTATIVE KERTTULA asked Mr. Sweeney whether the removal of
the word "any" would damage the bill. She suggested the word
"complete" instead.
REPRESENTATIVE GREEN responded:
I would have a bit of a problem with that because if,
then, you say "coverage," then you add one of ten pieces
covered. Would that suffice under here, as opposed to,
say, 30 percent or ...? ...I think that's what I'm
reading "any" to mean, but that may not be in fact what
it is.
MR. SWEENEY said he thinks that Representative Green is correct.
Number 1272
REPRESENTATIVE KERTTULA asked Representative Green whether he likes
the word "any" better than the word "complete."
REPRESENTATIVE GREEN replied that he isn't sure. He just doesn't
want to remove the word "any."
Number 1338
STAN RIDGEWAY, Deputy Director, Division of Insurance, Department
of Community & Economic Development, came before the committee to
testify. As Mr. George has indicated, there were 21 points of
discussion and 20 points were agreed on. The division supports the
bill. In response to Representative Kerttula's question, he said
he doesn't have an answer; he would do some research and get back
to her. It is his understanding, however, that the language was
taken directly from the NAIC model Act. He thinks that there is a
reason for the word "any" instead of the word "complete."
Number 1375
REPRESENTATIVE ROKEBERG stated that there are different types of
coverage, and the word "any" is appropriate. He doesn't have a
problem with it.
REPRESENTATIVE ROKEBERG asked Mr. Ridgeway whether he is aware of
the proposed amendment in relation to the determination of the
principal place of business.
MR. RIDGEWAY affirmed that.
REPRESENTATIVE ROKEBERG asked Mr. Ridgeway whether the Department
of Community & Economic Development has a problem with the proposed
amendment.
MR. RIDGEWAY replied, "No."
Number 1410
REPRESENTATIVE GREEN, noting that there were no further testifiers,
closed the hearing to public testimony.
Number 1415
REPRESENTATIVE ROKEBERG made a motion to adopt Amendment 1, version
1-LS1376\I.2, Ford, 3/22/00. There being no objection, Amendment
1 was adopted. It read as follows:
Page 3, line 9, following "chapter":
Insert ", whichever occurs first"
Page 27, line 20, through page 28, line 12:
Delete all material and insert:
"Sec. 21.79.170. Determination of principal place of
business. The principal place of business of a plan sponsor
consisting of
(1) a single employer or an employee organization is that
state in which the plan sponsor exercises the direction,
control, and coordination of the operations of the entity, as
determined by the association in its reasonable judgment by
considering the following factors: (A) the state in which the
primary executive and administrative headquarters of the entity
are located; (B) the state in which the principal office of
the chief executive officer of the entity is located; (C) the
state in which the board of directors or a similar governing
body of the entity conducts the majority of its meetings; (D)
the state in which the executive or management committee of
the board of directors or a similar governing body of the
entity conducts the majority of its meetings: (E) the state
from which the management of the overall operations of the
entity is directed; and (F) in the case of a benefit plan
sponsored by affiliated companies making up a consolidated
corporation, the state in which the holding company or
controlling affiliate has its principal place of business as
determined using the factors described in (A) - (E) of this
paragraph; however, if more than 50 percent of the
participants in the benefit plan are employed in a single
state, that state is considered to be the principal place of
business of a plan sponsor that is a single employer or an
employee organization;
(2) two or more employers or employee organizations is
that state in which the employers or employee organizations
have the largest investment in the benefit plan."
Number 1436
REPRESENTATIVE ROKEBERG made a motion to move CSHB 398(L&C),
version 1-LS1376\I, as amended, out of committee with individual
recommendations and attached zero fiscal notes.
REPRESENTATIVE GREEN stated:
The concern I would have with that, then, is if Mr. Ridgeway
comes back with something, even though that is you say the
word in the model bill [is], "any". Is there any concern
among any of the members of the committee that they would like
to know for sure that ... that takes care of our concerns, our
mutual concerns?
REPRESENTATIVE KERTTULA replied that if the chairman of the House
Labor and Commerce Committee [Representative Rokeberg] agrees that
there is a problem, then it can be taken care of on the floor of
the House of Representatives.
REPRESENTATIVE ROKEBERG indicated that he wouldn't object, if there
is a problem.
REPRESENTATIVE GREEN asked whether there was any objection to
moving the bill out of committee. There being none, CSHB 398(JUD),
moved from the House Judiciary Standing Committee.
HB 369 - PROPERTY EXEMPTIONS
REPRESENTATIVE GREEN announced the next order of business would be
HOUSE BILL NO. 369, "An Act relating to property exemptions under
the Alaska Exemptions Act; and providing for an effective date."
Number 1530
JOHN MANLY, Staff to Representative John Harris, Alaska State
Legislature, came before the committee on behalf of the sponsor.
He informed members that there were two proposed committee
substitutes [Version H, 1-LS1266\H, and Version I, 1-LS1266\I].
One version [Version I] retains the indexing for monetary
provisions in relation to the Consumer Price Index (CPI). The
other version [Version H] completely deletes the indexing provision
in relation to the CPI. He noted that Chris Miller of the
Department of Labor & Workforce Development was present to speak to
the indexing process and why the legislature changes it as much as
it does.
Number 1583
REPRESENTATIVE ROKEBERG asked Mr. Manly to indicate which proposed
committee substitute (CS) was preferred by the sponsor, by Mr.
Greer - "father" of the bill - and the Department of Labor &
Workforce Development.
MR. MANLY replied that Mr. Greer had not expressed a preference in
relation to the indexing provision. The provision was inserted
into the original bill by the legal drafter [Terry Bannister,
Attorney, Legislative Counsel, Legislative Legal and Research
Services, Legislative Affairs Agency] because she felt that it
needed attention. The sponsor has indicated that he is willing to
support what the Department of Labor & Workforce Development
prefers.
Number 1656
CHRIS MILLER, Research & Analysis, Central Office, Division of
Administrative Services, Department of Labor & Workforce
Development, came before the committee to testify. He indicated
that the department would prefer to get out of the business of
indexing.
REPRESENTATIVE ROKEBERG responded that he doesn't have a problem
with the department getting out of the business of indexing. He
would, however, defer to the members of the committee and the legal
profession as to whether they want to continue updating the index.
He doesn't like indexing himself, he added.
Number 1721
REPRESENTATIVE CROFT stated his belief that the indexing provision
ought to be deleted. He also thinks that the figure of $250,000 is
"close," contrary to those who have indicated that it is high. He
would prefer that the legislature periodically update the index in
statute rather than to have the Department of Labor & Workforce
Development automatically update it. In that way, a person can
read the statute and understand the value of the index. Right now,
$54,000, the value referred to in statute, doesn't mean $54,000; it
means something else that a person has to figure out.
REPRESENTATIVE ROKEBERG interjected that a person has to wait until
October for the department to compute the value of the index.
Number 1770
REPRESENTATIVE CROFT made a motion to adopt as a work draft the
proposed CS for HB 369, Version H [1-LS1266\H, Bannister, 3/27/00].
There being no objection, Version H was before the committee.
Number 1782
REPRESENTATIVE GREEN asked Mr. Miller how the figure of $250,000
compares with other states.
MR. MILLER replied that he doesn't know; he has not done a
comparison of other states but has only looked at the figure in
relation to the rest of the state.
MR. MANLY said that testimony has indicated that a number of states
do not have a limit.
REPRESENTATIVE GREEN asked Mr. Manly whether it is a reasonable
number.
MR. MANLY replied that he would classify it as a reasonable number.
REPRESENTATIVE ROKEBERG noted, for the record, that the committee
has received a couple of letters indicating that a joint exemption
equates to a half million dollars for a spousal combination.
Number 1830
REPRESENTATIVE ROKEBERG made a motion to move CSHB 369, Version H
[1-LS1266\H, Bannister, 3/27/00], out of committee with individual
recommendations and attached zero fiscal note. There being no
objection, CSHB 369(JUD) moved from the House Judiciary Standing
Committee.
HB 392 - CONTINUANCES OF CINA HEARINGS
REPRESENTATIVE GREEN announced the next order of business would be
HOUSE BILL NO. 392, "An Act relating to continuances for temporary
placement hearings that follow emergency custody of a minor; and
amending Rule 10, Alaska Child in Need of Aid Rules." The
committee would be taking up CSHB 392(HES), version 1-LS1224\G.
Number 1881
REPRESENTATIVE JIM WHITAKER, Alaska State Legislature, came before
the committee as sponsor of the bill. He was joined at the table
with staff, Lori Backes. This bill, he said, is relatively simple.
The single largest complaint that his office receives is from
parents or guardians in relation to the lack of time to understand
the circumstances surrounding the 48-hour hearing, which determines
whether a child is a "child in need of aid" (CINA). Yet there is
a provision in statute for judges to explain the circumstances to
those involved, but it has not worked as well as hoped. This bill,
therefore, makes it very clear that a judge must explain to parents
and/or guardians that they have the right to request a continuance.
This is in no way an attempt to circumvent the efforts of the
Division of Family and Youth Services [Department of Health &
Social Services]. This is merely an assertion of the rights of
parents and guardians to understand their rights, to give them time
to think, and to get their act together.
Number 1950
REPRESENTATIVE CROFT noted that the emergency custody provision
remains intact. In that way, a parent or guardian would not get a
child back during this period of time.
REPRESENTATIVE WHITAKER affirmed that.
Number 1961
REPRESENTATIVE ROKEBERG stated that the bill mandates that the
hearing officer grant a continuance, but there don't seem to be any
limitations placed on a continuance. How would that be handled?
REPRESENTATIVE WHITAKER replied that the seven-day stipulation was
removed in the House Health, Education and Social Services
Committee because there is a need for leeway on the part of the
hearing officer or judge. In that way, a hearing officer or judge
could grant a limited continuance or a series of continuances.
REPRESENTATIVE ROKEBERG asked Representative Whitaker whether these
types of hearings typically take place in a court or before a
hearing officer.
REPRESENTATIVE WHITAKER replied, according to his understanding,
that a hearing officer is used in most cases.
Number 2030
REPRESENTATIVE ROKEBERG asked Representative Whitaker whether it is
correct to say that a hearing officer "becomes the court" by way of
statutory construction of the bill.
REPRESENTATIVE WHITAKER replied that he doesn't believe that it
changes the statute in that regard. He pointed out that the bill
does not require a continuance. It simply requires that the
hearing officer and/or judge inform the parent or guardian of the
right to request a continuance. Upon a request, the hearing
officer or judge then makes a determination as to whether it is a
valid request.
REPRESENTATIVE ROKEBERG asked Representative Whitaker whether a
judge would have the discretion to set a follow-up hearing, for
example.
REPRESENTATIVE WHITAKER replied the hearing officer and/or judge
would make a determination on whether or not to grant a
continuance.
REPRESENTATIVE ROKEBERG asked Representative Whitaker what happens
after the granting of a continuance.
REPRESENTATIVE WHITAKER replied that a time stipulation is placed
on a continuance at the time it is granted. The bill is not an
attempt to endlessly draw out the process. Judicial discretion is
maintained.
REPRESENTATIVE ROKEBERG commented that he is concerned about the
practical implications of the bill in relation to the judicial
process.
Number 2108
REPRESENTATIVE GREEN asked Representative Whitaker whether the
removal of the seven-day continuance was to allow for whatever
might need to be done. He posed a scenario: "I'm a bad guy. I've
been bad to my kids and I can't correct that in seven days, but,
maybe, I can go to some sort of a head-knock session, and in 14
days I'll be clean."
REPRESENTATIVE WHITAKER replied no, that was not the intent. The
single largest complaint that he hears from individuals in these
circumstances is that 48 hours isn't enough time to get over the
confusion, anger and panic of what to do when the state takes
action to protect the safety of a child. Generally speaking, these
individuals are not in the most comfortable of situations, and this
is a very rude awakening. The bill allows for these individuals to
go to court and ask for a little time to get their act together.
The bill requires that the court advise the parent or guardian of
the right to request a continuance. In most cases, he noted, the
individuals are not aware of the specific charges until the
hearing. He also noted that these are individuals who are somewhat
disenchanted with the so-called system to begin with, so this is a
chance to extend an open hand to give them time to think.
Number 2216
REPRESENTATIVE GREEN asked Representative Whitaker whether there is
an upper limit for an extension.
REPRESENTATIVE WHITAKER replied that it is fair to say that
judicial discretion will rule the day.
REPRESENTATIVE GREEN opened the meeting to public testimony.
Number 2248
BLAIR McCUNE, Deputy Director, Central Office, Public Defender
Agency, Department of Administration, testified via teleconference
from Anchorage. The agency supports the bill, he told members. A
lot of what is set out in the bill is "kind of" done in practice
now in the Anchorage courts and in most other areas throughout the
state. A parent will come in, he explained, and want to have an
attorney appointed to help the parent through the 48-hour temporary
custody hearing. That is what allows the agency to get involved
with the case.
MR. McCUNE noted that in actuality continuances are for a few days,
and are used to look at medical records, for example. Generally,
a continuance is granted for about a day or at the most two days.
In CINA cases, he explained, there is the initial 48-hour hearing
and then an adjudication hearing, which is about 120 days later.
It is important, therefore, for parents to understand where they
are going and what needs to be done. He commented that this issue
was discussed in detail in the House Health, Education and Social
Services Committee, at which time it was decided not to put strict
time limits on a continuance in order to allow for a lot of
judicial discretion.
Number 2354
REPRESENTATIVE GREEN asked Mr. McCune whether he was saying that
removing the seven-day limit is really just an extension of a few
days rather than an opened-ended limit.
MR. McCUNE affirmed that. He said it is extremely rare to get as
much as a seven-day continuance. Leeway is important because some
cases might involve medical testimony, which requires checking the
medical records and consulting with the family doctor. Those types
of cases are rare, but they might require a ten-day continuance
rather than a seven-day continuance, for example. It just didn't
seem right, he said, to include a strict time limit. Normally,
after reviewing the case, it is often decided that a family should
stipulate temporary custody, especially in the case of serious
abuse. The time is then spent trying to fix the problems.
Number 2417
REPRESENTATIVE ROKEBERG pointed out that there isn't a fiscal note
from the Public Defender Agency. He asked Mr. McCune whether it is
typical for a public defender to be available at a 48-hour hearing
or if one has to be contacted by the parents or guardians for
counseling.
MR. McCUNE said that is a good question. There is a bill, which
recently passed the House of Representatives and is now in the
Senate, that lets the Public Defender Agency get involved earlier
in the process without an official appointment by the court. As it
stands now, a parent or guardian goes through a financial screening
before a court issues an order to appoint a public defender to the
case. Mr. McCune further stated that there is a zero fiscal note
from the Public Defender Agency because the language reads "may" be
represented by the Public Defender Agency, which allows for some
leeway. He reiterated that the bill codifies current practices,
particularly in Anchorage, where about a half of the CINA cases are
located. In most other areas of the state, the practice is to have
a shortened continuance in order to talk to the parent or guardian
to determine whether further investigation is needed. The agency
doesn't expect much fiscal impact as a result of the bill.
TAPE 00-41, SIDE B
Number 0001
REPRESENTATIVE GREEN indicated that he is willing to take Mr.
McCune's verbal input in relation to the zero fiscal note, but that
it might help to submit one. He asked Mr. McCune whether a
continuance would help to present a better case and more thorough
review in the arena of fairness.
MR. McCUNE affirmed that, adding that it would allow for the parent
or guardian to consult with a lawyer, and it would expedite the
process in a way. For example, the department wouldn't have to
"put out" proof if probable cause is stipulated, which could save
the court time and resources.
REPRESENTATIVE GREEN, noting that there were no further testifiers,
closed the meeting to public testimony.
Number 0085
REPRESENTATIVE KERTTULA made a motion to move CSHB 392(HES),
version 1-LS1224\G, out of committee with individual
recommendations and attached fiscal notes. There being no
objection, CSHB 392(HES) moved from the House Judiciary Standing
Committee.
HB 292 - DISCLOSURE OF CRIMINAL HISTORY RECORDS
REPRESENTATIVE GREEN announced the next order of business would be
HOUSE BILL NO. 292, "An Act adopting the National Crime Prevention
and Privacy Compact; making criminal justice information available
to interested persons and criminal history record information
available to the public; making certain conforming amendments; and
providing for an effective date."
Number 0101
KENNETH E. BISCHOFF, Director, Central Office, Division of
Administrative Services, Department of Public Safety (DPS), came
before the committee to present the bill. The primary purpose of
the bill is to adopt a national compact [the National Crime
Prevention and Privacy Compact], which deals with criminal history
record background checks. Over the years, the legislature has
passed a number of statutes mandating background checks for
employment and licensing purposes. He cited teachers, school bus
drivers, and assisted living homes as examples.
MR. BISCHOFF said that every state in the nation deals with the
same issue when it comes to doing a national criminal history
background check for these types of occupations. The presumption
is that once it is important enough for the legislature to pass a
law, the DPS should use the best information available. A national
compact would allow the department to have access to more timely
and complete criminal history records of other states. In order to
do that, every state needs to agree to a common set of rules by
which to exchange information. The adoption of this compact would
do just that. Mr. Bischoff encouraged the committee members to
support the bill. He noted that the department had submitted an
amendment [Amendment 1] that would allow the Alcoholic Beverage
Control Board to do a national background check on their licensed
applicants.
REPRESENTATIVE GREEN asked Mr. Bischoff what the compact will
provide.
MR. BISCHOFF replied there will be a national pointer system
established as each state comes online at the FBI [Federal Bureau
of Investigation] for civil purposes. The pointer system will
establish a unique federal identification number that will indicate
which states have information on a particular individual. It will
allow the department to electronically query the system and go
directly to each state to get background information.
Number 0231
REPRESENTATIVE GREEN asked Mr. Bischoff how this can be done with
a zero fiscal note.
MR. BISCHOFF replied that as the system develops, there will be an
additional workload, but the trade-off is that for every arrest,
each state is required to send a duplicate set of fingerprints to
the FBI. Under this system, a first-time arrest card will be sent
only once. And once a federal identification number has been
established, the department will not have to send any future cards
because they will be able to make an identification locally and
update the record accordingly. He noted that it costs about
$30,000 for criminal arrest cards a year.
Number 0278
REPRESENTATIVE GREEN asked Mr. Bischoff whether the department gets
a lot of "hits" now from other states for information.
MR. BISCHOFF replied that about two years ago the legislature
appropriated money to the DPS to upgrade their fingerprinting
system, which allowed them to combine their system with those of
six other western states. After the first year of operation and
searching the database, approximately 75 percent of the
identifications were made using other states' records.
Number 0314
REPRESENTATIVE GREEN noted that earlier in the session it was
suggested that Alaska might become a member of an interstate
parole-type compact, but the idea fell on deaf ears. He asked Mr.
Bischoff how this compact is different.
MR. BISCHOFF replied that even though this is a national compact,
all 50 states had participated in drafting the language, getting it
through the President's office and submitting it to Congress for
adoption. Furthermore, the mechanics of this system already exist
for law enforcement purposes, and it is being used by all 50 states
now. The compact puts in place the rules to allow it to be used
uniformly for civil purposes.
Number 0401
REPRESENTATIVE KERTTULA asked Mr. Bischoff to expand on what type
of information an agency or employer would get with the inclusion
of arrest information without court dispositions and information
beyond the ten-year unconditional discharge date.
MR. BISCHOFF explained that several years back, with the help of
the legislature, the department completely updated AS 12.62 by
including model language from national groups. The term
"unconditional discharge date" is a fairly common term, but in
Alaska it is a very difficult date to calculate. He noted that the
Department of Corrections manually calculates the date and is
moving towards automating the calculation with their new computer
system. The reason for the change is because the state conducts
20,000 fingerprint-based applicant checks a year for employment and
licensing purposes, and the department would have to submit a major
fiscal note - and the process would slow down - if they couldn't
just give the regulatory agencies or authorized employers the
complete record.
Number 0465
REPRESENTATIVE KERTTULA asked Mr. Bischoff to explain what
"unconditional discharge" would indicate to someone requesting this
type of information.
MR. BISCHOFF replied that unconditional discharge means that a
person has served his incarceration time, is released on probation
or parole, and is being monitored. It would indicate the date that
the person no longer has to report to a probation officer. He
reiterated that calculating the date is not a straightforward
process.
Number 0501
REPRESENTATIVE KERTTULA stated concern that it might mean that
after a period of time the record is gone, similar to a suspended
imposition. She asked Mr. Bischoff to explain the kinds of arrest
information.
MR. BISCHOFF replied that Section 3 of the bill updates the list of
what is considered a serious offense.
REPRESENTATIVE KERTTULA asked Mr. Bischoff whether a description
about an arrest is included, such as information on a mistaken
arrest.
MR. BISCHOFF replied that the criminal history report would include
the arrest card, the arresting agency, and the results of the
fingerprint search. The system currently does not include
information from the prosecutor, so it usually requires a court
disposition to update the record indicating innocence or guilt.
The nature of information that a regulatory or employer needs
varies. When it comes to dealing with children, for example, a
person may have four or five arrests but no convictions, which is
information that may be very helpful to the Division of Family &
Youth Services; setting a filter that denies them that type of
information is not good public policy. The department would prefer
to put the burden on the regulatory agency to decide what is
relevant information because it is truly their decision. Moreover,
he doesn't think that it is appropriate for his staff to make
policy decisions for regulatory agencies.
Number 0627
REPRESENTATIVE KERTTULA asked Ms. Langdon what type of arrest
information the Division of Family & Youth Services gets.
Number 0651
GLADYS LANGDON, Children Services Manager, Anchorage Region, Family
Services, Division of Family & Youth Services, Department of Health
& Social Services, came before the committee to answer
Representative Kerttula's question. The division gets an arrest
record and can get a criminal history. It is very important that
they have access to the complete record, even beyond the ten-year
period. She also noted that federal funding is dependent upon the
division having access to these types of records.
Number 0670
REPRESENTATIVE KERTTULA stated, then, that it is the division's job
to figure out if the arrests indicate anything or not. She asked
Ms. Langdon whether she has seen circumstances where it was just an
arrest that kept a person from being able to get a license.
MS. LANGDON replied no.
Number 0691
REPRESENTATIVE GREEN asked Mr. Bischoff how the department knows
who needs a record check. Is it just for the employer who wants to
know about a particular person?
MR. BISCHOFF replied that the legislature has established which
regulatory agencies need a background check. The department lets
the regulatory agencies drive the request process, which equates to
20,000 [requests] a year. The department first searches their
records, and any qualifying offense is communicated to the
regulatory agency. If they don't get an identification, they then
ship the request to the FBI via the mail. When the system is
updated, he noted, the request will be sent via an electronic
transfer, which will allow for a quicker turnaround time.
REPRESENTATIVE GREEN asked Mr. Bischoff whether there is a charge.
MR. BISCHOFF replied yes, there is a $35 in-state charge, and the
FBI charges $24 for a national check.
REPRESENTATIVE GREEN commented that it is self-funding.
Number 0778
REPRESENTATIVE ROKEBERG asked Mr. Bischoff whether this is the
system that state employees had accessed a couple of years ago,
which had created some controversy.
MR. BISCHOFF replied that there was controversy surrounding the use
of the Alaska Public Safety Information Network, which is
interfaced to the national system. The bill, he noted, deals with
the national system.
REPRESENTATIVE ROKEBERG asked Mr. Bischoff whether there is a
separation between the two.
MR. BISCHOFF replied, "Yes."
REPRESENTATIVE ROKEBERG asked Mr. Bischoff whether he can assure
the committee members the abuses that may have taken place before
will not take place again.
MR. BISCHOFF replied that his staff, as a result of the
controversy, has implemented a whole host of edits, to notify
security if certain records are run against certain public
officials. An audit function has also been implemented. There is
no way, however, that he can guarantee 100 percent that this will
never occur again. But there are better tools to work with and a
keener sensitivity of the issue now.
Number 0837
REPRESENTATIVE ROKEBERG asked Mr. Bischoff whether any of the
agencies can get into that information.
MR. BISCHOFF replied that the only way a person can query the
compact for information is if there is a set of fingerprints, and
the applicant has to agree to a set of fingerprints. The only
authorized agency in the state to run a check is the Criminal
Investigations Unit [DPS] in Anchorage. In other words, there
won't be 22,000 users querying the system for this type of
information.
REPRESENTATIVE ROKEBERG surmised that it is [Mr. Bischoff's] staff
that does the work for these agencies that have justified their
request.
MR. BISCHOFF affirmed that.
REPRESENTATIVE GREEN indicated that, in itself, should make a major
difference.
REPRESENTATIVE ROKEBERG asked Mr. Bischoff how this system will
interface with the court's computer system. It is his
understanding that the court system has an antiquated computer
system, he added.
MR. BISCHOFF replied that the DPS speaks in favor of the capital
request from the court system to update their computer system.
Currently, he explained, that the DPS receives court dispositions
in the mail and manually enters the information. Once the court
system is automated the information will be transferred
electronically. He further explained that when an individual is
booked by the Department of Corrections and fingerprinted using a
live scan machine, the information is sent to the DPS, at which
time staff processes the information through the Western
Identification Network to verify the person's identity. Upon
identification, staff updates the person's criminal history record
in the Alaska Public Safety Information Network, and if it is a
criteria offense, staff updates the national FBI system.
REPRESENTATIVE ROKEBERG stated that the courts are not hooked up
electronically.
MR. BISCHOFF concurred.
Number 0971
REPRESENTATIVE LISA MURKOWSKI commented that according to her
understanding there are only a few states that have signed on to
the compact. She asked Mr. Bischoff what would happen if the other
states do not sign on to the idea. As she understands, it is just
an exchange of information between those states who have access to
the compact, she added.
MR. BISCHOFF replied that the information from the 50 states that
the FBI has converted would be available through the system. The
states that do not adopt the compact would continue to send cards
to the FBI, and that information would be available through the
system. But, as more and more states join in the compact, Alaska
would have access to records that are not forwarded to the FBI. He
cited that as much as 40 percent of the criminal history records
for the state of Oregon are not indexed with the FBI, so when they
sign up for the compact Alaska would have access to those records.
Oregon, he noted, is part of the Western Identification Network, a
consortium of seven western states and a reason why Alaska gets a
75-percent hit rate on out-of-state records. He also said many
drunk driving offenses in California are fingerprinted but not
forwarded to the FBI, so when they sign up for the compact, Alaska
would have access to those records. He noted that four states have
adopted the compact, six states are going through the process of
adopting the compact, and many states are considering going through
the process next year. He hopes that in about five to six years a
majority of the states would be onboard.
Number 1110
REPRESENTATIVE MURKOWSKI asked Mr. Bischoff whether Alaska would
still have access to certain information from a state that does not
sign on to the compact. In that way, there is still a networking
system that does not go away.
MR. BISCHOFF answered, "Correct."
Number 1129
REPRESENTATIVE GREEN asked Mr. Bischoff whether the states that
sign on to the compact would go directly to Alaska for information,
while the rest of the states that do not sign on to the compact
would go through the FBI.
MR. BISCHOFF affirmed that.
Number 1145
REPRESENTATIVE MURKOWSKI asked Mr. Bischoff whether there is any
financial incentive for the states to sign on to the compact.
MR. BISCHOFF replied that there is a trade-off to signing on to the
compact. The department has submitted a zero fiscal note because
even though there would be additional work, the system would reduce
the number of fingerprint cards that would have to be forwarded to
the FBI. The department believes that it would be a "wash."
Number 1200
LINDA KESTERSON, Assistant Attorney General, Natural Resources
Section, Civil Division, Department of Law, testified via
teleconference from Anchorage in relation to the amendment to
include the Alcoholic Beverage Control Board. The compact, she
said, recognizes that there are non-criminal reasons for a criminal
background check, and that there are a number of governmental
entities that have the ability in statute to collect that type of
information, as Mr. Bischoff has indicated. The federal law
specifically requires that there is a state statute authorizing
these types of national background check. The amendment,
therefore, would change Title 4 to give the Alcoholic Beverage
Control Board the authority to require an applicant to submit a
fingerprint, which would then be submitted to the DPS for a
criminal background check. Without that, she said, the board can
only conduct an Alaska criminal background check, which eliminates
a lot of useful information to the board in determining whether or
not an applicant is a proper applicant for a liquor license.
Number 1319
DOUG GRIFFIN, Director, Alcoholic Beverage Control Board, testified
via teleconference from Anchorage in support of the amendment to
include the Alcoholic Beverage Control Board. This is a very high
priority for the board. It is deemed as a good step in preventing
a problem of somebody holding a liquor license who has a criminal
background. The board may not be aware of someone's criminal
background given the present system. It makes sense for an
efficient government, for it's a lot more expensive to try and
remediate a problem with a licensee with a criminal background who
shows irresponsibility in running his business than it is to
prevent a problem. The board hopes that the amendment is adopted
and that the bill moves forward.
Number 1380
REPRESENTATIVE KERTTULA asked what kind of authority the board has
now before issuing a liquor license. Can the board look at
arrests? How does the board screen out information that the board
doesn't have authority to review?
MR. GRIFFIN replied this is for non-criminal purpose. The issuance
of a liquor license. The board has some authority to use the
database when dealing with a criminal investigation, which is not
all that often. For non-criminal purposes, the board has been
submitting fingerprint cards to the DPS who then reviews them for
any criminal conviction within the state. That information is
forwarded to the board for consideration, and the applicant is
given an opportunity to discuss the information with the board in
an executive session. The information is treated as confidential.
Number 1490
REPRESENTATIVE KERTTULA stated that it seems that the language in
the amendment is giving the board broad authority. It reads, "The
board shall use the information obtained under this section in its
determination of the suitability for licensure of the person filing
or executing the application."
MS. KESTERSON said the statute entitles the board to gather
background information in determining whether it is appropriate for
a person to hold a liquor license. Specifically, AS 04.11.260
indicates that [an applicant must include] any other information
required for the board. And AS 04.11.300 indicates that the state
troopers shall assist the director in the investigation of
applicants for new licenses and applicants for the transfer of
existing licenses before the applications are considered by the
board. The policy has always been to conduct background checks on
applicants. However, the way the law is written now, in order to
get any criminal background records from any state other than
Alaska there has to be specific authority in statute, which is what
the amendment is meant to do. She further asserted that the
Alcoholic Beverage Control Board is the type of entity that should
be entitled to criminal background information in order to
determine whether or not a person should hold a liquor license.
REPRESENTATIVE GREEN, noting that there were no further testifiers,
closed the meeting to public testimony.
Number 1670
REPRESENTATIVE ROKEBERG made a motion to adopt Amendment 1. There
being no objection, Amendment 1 was adopted. It read as follows:
Page 1, line 3, following "public;"
Insert "providing for the use of criminal justice
information and records by the Alcoholic Beverage Control
Board;"
Page 1, following line 5:
Insert a new bill section to read:
"*Section 1. AS 04.06 is amended by adding a new section to
read:
Sec. 04.06.095. Criminal justice information and
records. (a) The board shall require a person filing or executing
an application for the issuance, renewal, or transfer of a license
under this title to be fingerprinted. The board shall submit the
fingerprints to the Department of Public Safety to obtain a report
of criminal justice information under AS 12.62 and a national
criminal history record check. The Department of Public Safety is
authorized to submit the fingerprints to the Federal Bureau of
Investigation for a national criminal history record check. The
board shall use the information obtained under this section in its
determination of the suitability for licensure of the person filing
or executing the application.
(b) In this section, "criminal justice information" has
the meaning given in AS 12.62.900."
Renumber the following bill sections accordingly.
Page 16. Following line 20:
Insert new bill sections to read:
"*Sec. 9. TRANSITION: PENDING APPLICATIONS UNDER AS 04.
Notwithstanding AS 04.06.095, enacted by sec. 1 of this Act,
the Alcoholic Beverage Control Board may process an
application for a license under AS 04 without a national
criminal history record check from the Federal Bureau of
Investigation if that application was pending with the board
on the effective date of sec. 1 of this Act.
"Sec. 10. Sections 1 and 9 of this Act take effect
immediately under AS 01.10.070(c)."
Renumber the following bill section accordingly.
Page 16, line 21:
Delete "This"
Insert "Except as provided in sec. 10 of this Act, this"
Number 1690
REPRESENTATIVE KERTTULA made a motion to move HB 292, version
1-GH2014.A, as amended, out of committee with individual
recommendations and attached fiscal notes. There being no
objection, CSHB 292(JUD) moved from the House Judiciary Standing
Committee.
HB 294 - DNA TESTING & REGISTRATION
REPRESENTATIVE GREEN announced the next order of business would be
HOUSE BILL NO. 294, "An Act relating to violations of an order to
submit to deoxyribonucleic acid (DNA) testing, to court orders and
conditions of parole to collect samples for DNA testing, to removal
of material from the DNA identification registration system; and to
the collection and processing of samples from certain burglary
perpetrators for the DNA identification registration system; and
providing for an effective date."
Number 1765
DEL SMITH, Deputy Commissioner, Office of the Commissioner,
Department of Public Safety (DPS), presented the bill via
teleconference from Anchorage. He explained that HB 294 expands a
bill passed by the legislature in 1995 that created the DNA
[deoxyribonucleic acid] identification registration system. That
bill only addressed DNA samples from those convicted of violent
crimes against a person and minors 16 years of age, or older
adjudicated delinquents for similar crimes. The bill also added
methods by which to collect DNA samples.
MR. SMITH noted that the DPS has been collecting samples since 1995
and storing them at the crime lab [Scientific Crime Detection
Laboratory, DPS] in Anchorage. The department is working hard at
storing the information in a database, and has become part of CODIS
[Combined DNA Index System]. House Bill 294 expands the collect of
DNA samples to include convictions for burglaries. He stressed
that the key word is "conviction" because according to research
nationwide 52 percent of those convicted of person crimes have been
convicted previously, which indicates a crime of opportunity or a
continuance of burglar activity. Mr. Smith thinks that it would be
good to capture a DNA sample early on for convictions of burglary
in the hopes of preventing person crimes later one. The reverse of
that is the ability to determine who is not involved in a crime.
He noted that Ms. Leane Strickland of the crime lab is present to
answer any questions regarding DNA; and that officer John McKinnon
of the Anchorage Police Department is also present to answer
questions regarding the collection of DNA.
MR. SMITH continued. He commented that technology has evolved to
the point that a blood sample is not needed for a sample, Instead,
a swab of saliva can be taken as a sample. In that way, most
anybody can take a sample without any problems involving the proper
chain of custody. The bill also expands who could take a sample to
include juvenile and adult correctional, probation and parole
officers, and peace officers. An increase of who can take a sample
would help solve some of the problems over the past five year of
obtaining a sample from all who are obligated to under the law.
Number 2071
REPRESENTATIVE GREEN asked Mr. Smith whether an officer could take
a swab sample.
MR. SMITH replied, "Yes."
REPRESENTATIVE GREEN asked Mr. Smith whether a swab sample is
subject to distortion based on whatever is in a person's mouth.
MR. SMITH deferred the question to Ms. Leane Strickland.
Number 2109
LEANE STRICKLAND, Supervisor, Scientific Crime Detection
Laboratory, Department of Public Safety (DPS), testified via
teleconference from Anchorage. Yes, she said, there are some
substances that may cause inhibitions when a sample is taken
orally. However, the lab has worked over the past three to four
years with hundreds and hundreds of oral samples, and there has
only been one sample that they were not able to get a DNA profile
out of. She said, "Again, any type of sampling that would be
inhibited, we would not be getting an incorrect DNA profile, we
would just not be getting a DNA profile from the sample."
Number 2167
REPRESENTATIVE MURKOWSKI said she is assuming that an oral sample
is as simple as taking a Q-tip swab to the saliva and putting it on
a test strip. In that way, the results can be taken and processed
right there.
MS. STRICKLAND replied that a Q-tip swab is used as well as an oral
scraper, which is a compacted cotton with serrated edges. Testing,
however, is not performed immediately upon receipt of a sample.
Testing is performed upon conviction.
Number 2224
REPRESENTATIVE MURKOWSKI asked Ms. Strickland whether there could
be a problem with the chain of custody, whereby a sample has been
taken and a period of time has elapsed so that it's not a correct
test. Is an old sample such that it won't register?
MS. STRICKLAND replied that the lab is able to get a DNA profile
from an old sample. Samples that are hundreds of years old, she
said, can show a DNA profile when stored in a dry environment.
Samples are stored at the lab in such a way that over extended
periods of time they are able to get profiles.
Number 2325
MR. SMITH pointed out that a person is obligated by law to give a
sample. A sample could therefore be taken again if it is found to
be distorted or unreadable. On the same token, a sample that
indicated somebody else's profile could be taken again. He said,
We're talking about a convicted offender database here.
And people that are obligated by law to do it. If you
take a sample and the individual said that wasn't me that
the officer did then all he or she would have to do is
give a DNA sample. We can compare and say something's a
foul here and the officer claimed it was somebody else.
I mean, there's a number of safeguards here in the DNA
process itself. So, if the committee members were
concerned about that at all, I just wanted to point that
out.
Number 2407
REPRESENTATIVE CROFT asked Mr. Smith to explain Section 6 of the
bill. [Mr. Smith asked Ms. Strickland about it, and the short
reply was cut off by the tape change.]
TAPE 00-42, SIDE A
Number 0001
JOHN McKINNON, Officer, Anchorage Police Department, testified via
teleconference from Anchorage. Section 6, he said, addresses an
administrative aspect of the bill in that there isn't a clear
mechanism to remove a person's DNA from the registry. Section 6
indicates that a person would have to pursue a court order in order
to remove his DNA from the registry. In that way, the Department
of Public Safety would not have to continuously determine which
person, which sample and which conviction date to manage the
information between the court system and the department. This
should also prevent the removal of a DNA sample from the registry
that was not authorized to be removed, so that if in the future a
person committed another crime his sample still remained on the
registry.
Number 0157
REPRESENTATIVE CROFT said he understands AS 44.41.035(i) and why it
is in the bill, but the changes shift the burden from the
department to the person who was just declared innocent of a crime.
He said:
Not only do you have to go through all of the
determination to get "not guilty," now, you've got to
-you, instead of the government - [have] to take the
effort to get your DNA out of the database. And it does
seem to me that if we're the person that's falsely
accused somebody, we ought to probably have the burden of
cleaning up our database on it.
Number 0220
MR. SMITH responded that he sees the language in Section 6 as a
safeguard. A person found "not guilty" in court can present that
information to the crime lab and have his or her DNA removed from
the system. He is concerned that a court order not pursued
vigorously by a defendant might be inadvertently left in the
database. The new language in Section 6 creates a clearer path to
get rid of a DNA sample, if it is suppose to be removed from the
database. He sees it as an opportunity to ensure that it happens
rather than as a creation of more difficulties for a former
defendant.
Number 0299
OFFICER McKINNON added that when Section 6 was drafted, the idea
was to provide a clear path for not only the DPS to carry out their
mission but for a person who has a court order to request the
removal of his DNA from the registry. It also helps the crime lab
feel more comfortable in their procedures.
Number 0350
REPRESENTATIVE CROFT said it is a more clear path, but it is at the
request of a person. In other words, a request could have come
from a lot of sources. For example, the attorney general could ask
for a declaratory order to remove the DNA samples at the end of the
year for all those who had a conviction reversed. He isn't sure
that the changes in Section 6 would allow that to happen now. The
language reads, "... upon receipt of a court order issued at the
request of a person whose DNA has been collected ...." He asked:
Why tie the state to only those types of requests when a court
order could come at somebody else's request or even sua sponte?
Number 0434
MR. SMITH replied that he understands what Representative Croft is
saying, but he's not prepared to deliver an answer. He reiterated
that the language is trying to clear a path to ensure that a
person's DNA is removed from the registry who has a court order.
There may be some inadvertent burden, but that is unintentional.
Number 0479
REPRESENTATIVE GREEN suggested the following language: "The
Department of Public Safety shall upon the receipt of a court order
destroy the material in the system ...." He asked Mr. Smith
whether the above suggestion is too big of a cut.
MR. SMITH replied that the suggestion sounds reasonable.
Number 0485
REPRESENTATIVE KERTTULA pointed out that the original language in
statute doesn't require a court order; it puts the requirement on
the DPS. She knows what Mr. Smith is saying, but there could be a
problem with a lot of people not knowing that they should do this.
She asked Mr. Smith whether he would be willing to amend the
language as long as the Department of Law agreed to the change.
MR. SMITH replied, "Yes."
Number 0553
REPRESENTATIVE GREEN said he is concerned that without a court
order the DPS may destroy a DNA sample that shouldn't be destroyed.
He agrees with Representative Croft in that it puts the burden on
the individual. He wondered whether the language "court order"
would be a safeguard or whether it would be unnecessary. He said,
"At least you've got a court order saying you did it because you
had a court order."
Number 0607
MS. STRICKLAND said she is concerned about a person who had a
conviction overturned at the beginning of the year; and if there is
an extended period of time before the crime lab gets a list. In
that way, a person's profile would have been searched nationally
for that extended period of time. A person's profile could be
removed quicker if he has the opportunity to get involved as the
bill indicates.
REPRESENTATIVE GREEN suggested the following language: "The
Department of Public Safety shall upon receipt of a court order or
the request of the person whose DNA .... " He explained that the
foregoing suggestion does not place a burden on the person, but
creates an option for the person to have his sample removed at an
earlier time.
REPRESENTATIVE CROFT pointed out that the language he had suggested
allows for anybody to come to the crime lab and request the removal
of his DNA sample.
Number 0698
JENNIFER RUDINGER, Executive Director, Alaska Civil Liberties Union
[AkCLU], testified via teleconference from Anchorage in opposition
to HB 294. She said she was there on behalf of the membership of
the AkCLU, which has 850 to 1000 [members] statewide. She was also
there on behalf of the committee member's constituents who bombard
her office week after week expressing concern of the government's
ever increasing control over personal information, such as social
security numbers, census information, background checks, and DNA
and genetic types of information. The concerns cross ideological
and party lines, she said, and many feel that the government has
not justified their demand for that type of information. Many also
express concern that the government cannot be trusted to keep that
type of information confidential or limit its use for the initial
purpose for which it was collected. The ACLU agrees with their
expressed concerns, for they have seen evidence of this around the
country. She read the following:
The Alaska Civil Liberties Union opposes HB 294 and
respectfully urges the committee to put an end to the
progressive expansion of DNA collection by the
government. DNA collected from one person not only
reveals personal information about that person, much of
which has nothing to do with serving the needs of law
enforcement, but it also reveals very personal
information about everyone related to that person by
blood. Unlike fingerprinting, which only reveals
information that can be used for identification purposes,
DNA gives the government control over a great deal of
personal, private information about anyone related to the
sample source. Therefore, expansion of the government's
power to collect DNA from its citizens - even people
convicted of crimes - should not be taken lightly.
[House Bill] 294 proposes to invade the privacy of
innocent family members, and the government's only
justification is that burglars might later commit violent
crimes in which they leave DNA evidence at the scene.
Initially, DNA storehouses were created to house
information about convicted sex offenders exclusively.
The argument was that sex offenders were especially prone
to recidivism. They typically left DNA evidence at the
crime scene, and therefore, were important to identify.
Whether or not that argument was sufficient, we were
assured at the time that only convicted sex offenders
would be tested and the information gleaned from these
test would be used by law enforcement officials strictly
for identification purposes.
But, as often the case, that information initially
collected for one, limited purpose is before long used
for other purposes. In less than a decade, law
enforcement official across the country have gone from
advocating collection of DNA from only convicted sex
offenders, and then to all violent offenders, and then to
all burglars, and in some states to anyone convicted of
any crime and even juvenile offenders. And finally we
have recently seen proposals from as far up as Janet
Reno to collect DNA from people who are merely arrested
before they are even convicted regardless of whether
they're guilty of any wrong doing whatsoever. And Rudy
Giuliani has not only voiced his support for this
proposal but he's gone so far as to say that he would
support the collection of DNA samples from all babies
born at birth giving the city a genetic database of all
of its citizens. I wish that I were exaggerating here.
The collection of DNA does have some good uses. The ACLU
does not oppose any specific form of technology but
rather the government should have a very tight method
between the means and the ends. Unlike sex offenders or
violent criminals who do leave DNA at the crime scene,
just to say that burglars might someday commit a violent
crime when they have never before committed a violent
crime is not a tight enough nexus between means and ends,
and simply does not justify collecting DNA, which as I
said before gives very personal information about anyone
related to the sample source.
I've given you a lot of information in a position paper
that I know you'll soon have a chance to review about
nationwide what we have seen in terms of DNA collection
and other types of information collection. Three more
points I just want to make.
One is that again, unlike fingerprinting, you know DNA
has been touted as some sort of high-tech fingerprinting,
but in fact it provides a lot of information about a
person's ethnicity, their family relationships, their
family history and the likelihood of getting some 4,000
genetically conditioned diseases. The folks that call my
office and write to my office every week about these
kinds of concerns say that this information belongs to
the individual; it's owned by the individual; it should
not be owned by the government again without some
compelling justification.
The second point I want to make is that, to wrap up, is
that we've seen a long history in this country of
"function creep." Function creep is a term that we've
created to describe where you're told that information
you surrendered to the government will only be used for
one function but ... that function kind of expands and
creeps and the argument by proponents is that, "Hey we've
already got the information, it's kind of related, what's
the harm." For example, social security numbers were
initially intended only for use as an aid for tracking
social security payments, but are now universal
identifiers. Another example, census records, a hot
topic today. Census records created for general,
statistical purposes were actually used in 1942 to round
up Japanese-Americans and place them in internment camps
during World War II.
And finally, there's something not in my position paper.
This bill just popped up on my radar screen recently and
there's another point that I would like to make that's
not in my paper. But we do object to Section 8's
retroactivity. The basis for our objection to making
this bill retroactive is that if somebody has done their
time and they now they've got their life together and
they have not been a recidivate of any crime and
certainly not a violent crime to have the government now
to go to them and ask for a DNA sample as though well we
know you've got your act together but we're still
suspicious. Someday you might just commit a violent
crime. We don't think the government can justify going
to that person.
I appreciate again the opportunity to testify, and I need
to look into one point a little further. I could find no
requirement either in this bill or the Alaska Statutes
that the DNA sample from which the genetic information is
taken must be destroyed. If there is no such requirement
there certainly should be. And I may have heard today
that samples of this are sitting around since 1995. I
don't know. I'd like to look into that a little bit
further, but I'm certainly open to any questions the
committee might have. I thank you for your time.
Number 1232
ROBERT BUTTCANE, Juvenile Probation Officer, Youth Corrections,
Division of Family and Youth Services, Department of Health &
Social Services, came before the committee to testify in favor of
HB 294. He said he appreciates the concerns raised by the ACLU in
relation to an intrusion of the government, but this bill affects
those who are convicted of burglaries or an adjudicated delinquent
of burglary offenses. These are very serious felony offenses. He
noted that Burglary I is a class B felony. It is not a small
matter when somebody enters another person's home and commits a
crime. Statistically, there is a correlation between the
commission of burglary and other serious acts against persons. The
Administration is putting this bill forward in order to get "bad
guys" off the street.
MR. BUTTCANE noted that in FY [fiscal year] '99 there were
approximately 50 delinquents adjudicated of burglary offenses out
of 7,484 referrals. Even though 50 is not a big number, they
caused considerable havoc to neighborhoods and communities, and
they typically have a long history of offenses. If the state can
identify them in future criminal activities through DNA sampling,
communities can feel safer and offenders can be held accountable to
conduct that a civilized community should expect. The bill is
really narrow in its focus of trying to identify those who pose a
serious concern to the safety of the public. He encouraged the
committee members to consider the bill favorably. The concerns
Representative Croft expressed in relation to Section 6, of the
bill, can be worked out. He suggested working with the Department
of Law in looking at how to balance the burden of removing DNA
evidence after a conviction is either overturned or a person is
found "not guilty."
Number 1401
REPRESENTATIVE GREEN expressed his appreciation of Mr. Buttcane's
suggestion in looking at the issue surrounding Section 6. He
agreed that there should be something in the bill indicating that
after a certain time or use, a DNA sample should be destroyed.
Number 1445
CANDACE BROWER, Parole Board Officer, Parole Board, Division of
Community Corrections, Department of Corrections, came before the
committee to testify. She pointed out that the changes in the bill
allow for non-medical personnel to collect samples from convicted
felons. This is a particular important part of the bill for the
Department of Corrections because in times of fiscal scarcity it
has become incumbent upon the department to collect the samples.
Generally, she explained, when someone has been convicted of a
crime they are in a correctional institution, therefore, the
medical staff of the Department of Corrections has been the ones
who predominately collect the samples, yet the medical staff is
becoming scarcer and scarcer. She believes that with the
simplicity of gathering saliva samples and with appropriate
training from medical personnel staff anyone could collect a sample
without problems. She asked that the committee members consider
that part of the bill.
Number 1515
REPRESENTATIVE GREEN said he certainly concurs with the statements
made by Ms. Brower. He announced that HB 294 would be held over.
ADJOURNMENT
Number 1519
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:18 p.m.
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