04/20/2001 01:18 PM House JUD
| Audio | Topic |
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+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
April 20, 2001
1:18 p.m.
MEMBERS PRESENT
Representative Norman Rokeberg, Chair
Representative Scott Ogan, Vice Chair (via teleconference)
Representative Jeannette James
Representative John Coghill
Representative Kevin Meyer
Representative Ethan Berkowitz
MEMBERS ABSENT
Representative Albert Kookesh
COMMITTEE CALENDAR
CONFIRMATION HEARINGS:
Commission on Judicial Conduct
Ethel L. Stanton - Sitka
Violent Crimes Compensation Board
Colleen M. Murphy, M.D. - Anchorage
Alaska Judicial Council
Eleanor Andrews - Anchorage
- CONFIRMATIONS ADVANCED
CS FOR SENATE BILL NO. 105(FIN)
"An Act relating to victims' rights; relating to establishing an
office of victims' rights; relating to the authority of
litigants and the court to comment on the crime victim's choice
to appear or testify in a criminal case; relating to
compensation of victims of violent crimes; relating to
eligibility for a permanent fund dividend for persons convicted
of and incarcerated for certain offenses; relating to notice of
appropriations concerning victims' rights; amending Rules 16 and
30, Alaska Rules of Criminal Procedure, Rule 9, Alaska
Delinquency Rules, and Rule 501, Alaska Rules of Evidence; and
providing for an effective date."
- MOVED HCS CSSB 105(JUD) OUT OF COMMITTEE; ADOPTED A HOUSE
CONCURRENT RESOLUTION ALLOWING THE TITLE CHANGE
HOUSE BILL NO. 49
"An Act extending the termination date of the Board of Parole;
and providing for an effective date."
- MOVED HB 49 OUT OF COMMITTEE
SENATE BILL NO. 81
"An Act relating to the nonademption of property transfers; and
providing for an effective date."
- MOVED OUT SB 81 OF COMMITTEE
HOUSE BILL NO. 164
"An Act prescribing the rights of grandparents related to child-
in-need-of-aid hearings; and amending Rules 3, 7, 10, 15, and
19, Alaska Child in Need of Aid Rules."
- MOVED CSHB 164(JUD) OUT OF COMMITTEE
CS FOR SENATE BILL NO. 82(STA)
"An Act making corrective amendments to the Alaska Statutes as
recommended by the revisor of statutes; and providing for an
effective date."
- MOVED CSSB 82(STA) OUT OF COMMITTEE
PREVIOUS ACTION
BILL: SB 105
SHORT TITLE:VICTIMS' RIGHTS/ PRISONER'S PFD
SPONSOR(S): SENATOR(S) HALFORD
Jrn-Date Jrn-Page Action
02/20/01 0432 (S) READ THE FIRST TIME -
REFERRALS
02/20/01 0432 (S) JUD, FIN
02/28/01 (S) JUD AT 1:30 PM BELTZ 211
02/28/01 (S) Moved CSSB 105(JUD) Out of
Committee
02/28/01 (S) MINUTE(JUD)
03/01/01 0555 (S) JUD RPT CS 4DP SAME TITLE
03/01/01 0555 (S) DP: TAYLOR, DONLEY, ELLIS,
THERRIAULT
03/01/01 0556 (S) FN1: (COR)
03/01/01 0556 (S) FN2: INDETERMINATE(LAW)
03/01/01 0556 (S) FN3: ZERO(REV)
03/01/01 0562 (S) COSPONSOR(S): TAYLOR
03/14/01 0655 (S) FIN RPT CS FORTHCOMING 4DP
3NR 1AM
03/14/01 0656 (S) DP: DONLEY, WILKEN, LEMAN,
WARD;
03/14/01 0656 (S) AM:KELLY; NR: AUSTERMAN,
HOFFMAN, OLSON
03/14/01 0656 (S) FN1: (COR)
03/14/01 0656 (S) FN2: INDETERMINATE(LAW)
03/14/01 0656 (S) FN3: ZERO(REV)
03/14/01 0656 (S) FN4: (LAA)
03/14/01 (S) FIN AT 9:00 AM SENATE FINANCE
532
03/15/01 0674 (S) CS RECEIVED NEW TITLE
03/16/01 (H) MINUTE(JUD)
03/20/01 0735 (S) RULES TO CALENDAR 3/20/01
03/20/01 0737 (S) READ THE SECOND TIME
03/20/01 0737 (S) FIN CS ADOPTED UNAN CONSENT
03/20/01 0737 (S) ADVANCED TO THIRD READING
UNAN CONSENT
03/20/01 0737 (S) COSPONSOR(S): LINCOLN, DAVIS,
COWDERY,
03/20/01 0737 (S) WARD, GREEN
03/20/01 0737 (S) READ THE THIRD TIME CSSB
105(FIN)
03/20/01 0738 (S) PASSED Y20 N-
03/20/01 0738 (S) EFFECTIVE DATE(S) SAME AS
PASSAGE
03/20/01 0738 (S) COURT RULE(S) SAME AS PASSAGE
03/20/01 0740 (S) TRANSMITTED TO (H)
03/20/01 0740 (S) VERSION: CSSB 105(FIN)
03/20/01 (S) RLS AT 10:45 AM FAHRENKAMP
203
03/20/01 (S) MINUTE(RLS)
03/22/01 0677 (H) READ THE FIRST TIME -
REFERRALS
03/22/01 0677 (H) JUD, FIN
04/09/01 (H) JUD AT 1:00 PM CAPITOL 120
04/09/01 (H) <Bill Postponed>
04/10/01 (H) JUD AT 5:00 PM CAPITOL 120
04/10/01 (H) Heard & Held
04/10/01 (H) MINUTE(JUD)
04/10/01 (H) MINUTE(JUD)
04/20/01 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 49
SHORT TITLE:EXTEND TERMINATION DATE FOR BD OF PAROLE
SPONSOR(S): RLS BY REQUEST OF THE GOVERNOR
Jrn-Date Jrn-Page Action
01/10/01 0050 (H) READ THE FIRST TIME -
REFERRALS
01/10/01 0050 (H) JUD, FIN
01/10/01 0050 (H) FN1: ZERO(COR)
01/10/01 0050 (H) GOVERNOR'S TRANSMITTAL LETTER
04/20/01 (H) JUD AT 1:00 PM CAPITOL 120
BILL: SB 81
SHORT TITLE:NONADEMPTION OF TRANSFERS IN TRUSTS
SPONSOR(S): SENATOR(S) THERRIAULT
Jrn-Date Jrn-Page Action
02/09/01 0326 (S) READ THE FIRST TIME -
REFERRALS
02/09/01 0326 (S) JUD
02/21/01 (S) JUD AT 1:30 PM BELTZ 211
02/21/01 (S) Moved Out of Committee
02/21/01 (S) MINUTE(JUD)
02/26/01 0500 (S) JUD RPT 3DP 1NR
02/26/01 0500 (S) DP: TAYLOR, THERRIAULT,
COWDERY;
02/26/01 0500 (S) NR: ELLIS
02/26/01 0500 (S) FN1: ZERO(LAW)
03/13/01 0635 (S) RULES TO CALENDAR 3/13/01
03/13/01 0641 (S) READ THE SECOND TIME
03/13/01 0641 (S) ADVANCED TO THIRD READING
UNAN CONSENT
03/13/01 0641 (S) READ THE THIRD TIME SB 81
03/13/01 0641 (S) PASSED Y19 N- E1
03/13/01 0641 (S) EFFECTIVE DATE(S) SAME AS
PASSAGE
03/13/01 0643 (S) TRANSMITTED TO (H)
03/13/01 0643 (S) VERSION: SB 81
03/13/01 (S) RLS AT 10:45 AM FAHRENKAMP
203
03/13/01 (S) MINUTE(RLS)
03/14/01 0584 (H) READ THE FIRST TIME -
REFERRALS
03/14/01 0584 (H) JUD
04/20/01 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 164
SHORT TITLE:GRANDPARENTS' RIGHTS REGARDING CINA
SPONSOR(S): REPRESENTATIVE(S)DYSON
Jrn-Date Jrn-Page Action
03/09/01 0515 (H) READ THE FIRST TIME -
REFERRALS
03/09/01 0515 (H) HES, JUD, FIN
03/27/01 (H) HES AT 3:00 PM CAPITOL 106
03/27/01 (H) Heard & Held
03/27/01 (H) MINUTE(HES)
03/29/01 (H) HES AT 3:00 PM CAPITOL 106
03/29/01 (H) Heard & Held
03/29/01 (H) MINUTE(HES)
03/30/01 0793 (H) COSPONSOR(S): COGHILL, CISSNA
04/03/01 (H) HES AT 3:00 PM CAPITOL 106
04/03/01 (H) Moved CSHB 164(HES) Out of
Committee
04/03/01 (H) MINUTE(HES)
04/04/01 0847 (H) COSPONSOR(S): WILSON, STEVENS
04/05/01 0855 (H) HES RPT CS(HES) NT 7DP
04/05/01 0855 (H) DP: COGHILL, WILSON, JOULE,
KOHRING,
04/05/01 0855 (H) STEVENS, CISSNA, DYSON
04/05/01 0855 (H) FN1: ZERO(HSS)
04/20/01 (H) JUD AT 1:00 PM CAPITOL 120
BILL: SB 82
SHORT TITLE:2001 REVISOR'S BILL
SPONSOR(S): RLS BY REQUEST OF LEGISLATIVE COUNCIL
Jrn-Date Jrn-Page Action
02/09/01 0326 (S) READ THE FIRST TIME -
REFERRALS
02/09/01 0326 (S) STA, JUD
02/20/01 (S) STA AT 3:30 PM BELTZ 211
02/20/01 (S) Heard & Held
MINUTE(STA)
03/01/01 (S) STA AT 3:30 PM BELTZ 211
03/01/01 (S) Moved CS(STA) Out of
Committee
MINUTE(STA)
03/07/01 0583 (S) STA RPT CS 1DP 3NR SAME TITLE
03/07/01 0583 (S) DP: THERRIAULT; NR: PHILLIPS,
HALFORD,
03/07/01 0583 (S) DAVIS
03/07/01 0583 (S) FN1: ZERO(S.STA)
03/21/01 (S) JUD AT 1:30 PM BELTZ 211
03/21/01 (S) Moved CS(STA) Out of
Committee
03/21/01 (S) MINUTE(JUD)
03/22/01 0768 (S) JUD RPT CS(STA) 3DP
03/22/01 0768 (S) DP: TAYLOR, COWDERY, ELLIS
03/22/01 0768 (S) FN1: ZERO(S.STA)
03/30/01 0879 (S) RULES TO CALENDAR 1OR 3/30/01
03/30/01 0881 (S) READ THE SECOND TIME
03/30/01 0881 (S) STA CS ADOPTED UNAN CONSENT
03/30/01 0881 (S) ADVANCED TO THIRD READING
UNAN CONSENT
03/30/01 0881 (S) READ THE THIRD TIME CSSB
82(STA)
03/30/01 0881 (S) PASSED Y15 N3 E2
03/30/01 0882 (S) EFFECTIVE DATE(S) SAME AS
PASSAGE
03/30/01 0884 (S) TRANSMITTED TO (H)
03/30/01 0884 (S) VERSION: CSSB 82(STA)
03/30/01 (S) RLS AT 10:45 AM FAHRENKAMP
203
04/02/01 0805 (H) READ THE FIRST TIME -
REFERRALS
04/02/01 0805 (H) JUD
04/09/01 (H) JUD AT 1:00 PM CAPITOL 120
04/09/01 (H) Scheduled But Not Heard
04/20/01 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
LESLIE D. BOGDA WHEELER, Chair
Violent Crimes Compensation Board (VCCB)
PO Box 878885
Wasilla, Alaska 99687
POSITION STATEMENT: Testified in favor of reappointing Dr.
Murphy to the VCCB.
ELEANOR ANDREWS, Appointee
to the Alaska Judicial Council
P.O. Box 241845
Anchorage, Alaska 99520-1947
POSITION STATEMENT: Testified as appointee to the Alaska
Judicial Council.
JULI LUCKY, Staff
to Senator Rick Halford
Alaska State Legislature
Capitol Building, Room 111
Juneau, Alaska 99801
POSITION STATEMENT: Presented SB 105 on behalf of Senator
Halford, sponsor, and answered questions.
DEAN J. GUANELI, Chief Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law (DOL)
PO Box 110300
Juneau, Alaska 99811-0300
POSITION STATEMENT: Answered questions regarding proposed
amendments to SB 105.
BLAIR McCUNE, Deputy Director
Central Office
Public Defender Agency (PDA)
Department of Administration
900 West 5th Avenue, Suite 200
Anchorage, Alaska 99501-2090
POSITION STATEMENT: During discussion of SB 105, provided
comments on proposed Conceptual Amendment 7, and responded to
questions.
LARRY JONES, Executive Director
State Board of Parole
Department of Corrections (DOC)
PO Box 112000
Juneau, Alaska 99811-2000
POSITION STATEMENT: Presented HB 49 on behalf of the
administration.
WILDA RODMAN, Staff
to Senator Gene Therriault
Alaska State Legislature
Capitol Building, Room 121
Juneau, Alaska 99801
POSITION STATEMENT: Presented SB 81 on behalf of the sponsor,
Senator Therriault.
STEPHEN E. GREER, Attorney at Law
PO Box 24-2903
Anchorage, Alaska 99524-2903
POSITION STATEMENT: Assisted with presentation of SB 81.
REPRESENTATIVE FRED DYSON
Alaska State Legislature
Capitol Building, Room 104
Juneau, Alaska 99801
POSITION STATEMENT: Sponsor of HB 164.
MARCI SCHMIDT
2040 Wasilla Fishhook Road
Wasilla, Alaska 99654
POSITION STATEMENT: Testified in support of HB 164.
SHARON LEE SHIELDS
PO Box 0487
Palmer, Alaska 99645
POSITION STATEMENT: Testified in support of HB 164.
BETTY SHORT, President
Alaska Organization for Grandparents Rights
4102 East Turnagain Boulevard
Anchorage, Alaska 99517
POSITION STATEMENT: Testified in support of HB 164.
PAM FINLEY, Revisor of Statutes
Legislative Legal Counsel
Legislative Legal and Research Services
Legislative Affairs Agency
Terry Miller Building, Room 329
Juneau, Alaska 99801
POSITION STATEMENT: Presented SB 82.
ACTION NARRATIVE
TAPE 01-68, SIDE A
Number 0001
CHAIR NORMAN ROKEBERG called the House Judiciary Standing
Committee meeting to order at 1:18 p.m. Representatives
Rokeberg, Ogan (via teleconference), James, Coghill, and Meyer
were present at the call to order. Representative Berkowitz
arrived as the meeting was in progress.
CONFIRMATION HEARINGS
Commission on Judicial Conduct
Number 0165
CHAIR ROKEBERG announced that the committee would consider Ethel
L. Stanton as appointee to the Commission on Judicial Conduct.
He noted that the expiration date regarding this reappointment
will be 3/1/04, and that Ms. Stanton is not available to speak
at this time.
REPRESENTATIVE JAMES noted for the record that since she has not
yet had a chance to do so, she would have preferred to talk with
Ms. Stanton before taking action on her reappointment.
CHAIR ROKEBERG reminded members that signing the reports
regarding appointments to boards and commissions in no way
reflects individual members' approval or disapproval of the
appointees, and that the nominations are merely forwarded to the
full legislature for confirmation or rejection.
Number 0387
REPRESENTATIVE JAMES moved to report the nomination of Ethel L.
Stanton to the Commission on Judicial Conduct out of committee.
There being no objection, the confirmation was advanced.
Violent Crimes Compensation Board
Number 0418
CHAIR ROKEBERG announced that the committee would consider
Colleen M. Murphy, M.D., as appointee to the Violent Crimes
Compensation Board. He noted that the expiration date regarding
this reappointment will be 3/1/03, and that Dr. Murphy is not
available to speak at this time.
Number 0466
LESLIE D. BOGDA WHEELER, Chair, Violent Crimes Compensation
Board (VCCB), testified via teleconference and said simply that
she wanted to speak in support of reappointing Dr. Murphy to the
VCCB. She added that Dr. Murphy has been an outstanding board
member.
REPRESENTATIVE JAMES noted that although Dr. Murphy is probably
doing a very good job on [the VCCB], she would have preferred to
talk with Dr. Murphy before taking action on her reappointment.
Number 0555
REPRESENTATIVE JAMES moved to report the nomination of Colleen
M. Murphy, M.D., to the Violent Crimes Compensation Board out of
committee. There being no objection, the confirmation was
advanced.
Alaska Judicial Council
Number 0583
CHAIR ROKEBERG announced that the committee would consider
Eleanor Andrews as appointee to the Alaska Judicial Council.
Number 0607
ELEANOR ANDREWS, Appointee to the Alaska Judicial Council ("the
council"), testified via teleconference, and said that she
thinks the Alaska Judicial Council is probably one of the most
important commissions that the legislature has purview over, and
that she has had the pleasure of serving on the council since
last November. She noted that the Council has had occasion to
make recommendations to the governor regarding a judge position
for the superior court in Anchorage. She added that she thinks
it was a very deliberative process, and that this process serves
the peoples' will very well. She said she would like to
continue [serving on the council].
REPRESENTATIVE OGAN opined that under the Alaska State
Constitution, Alaska has one of the strongest, most powerful
governors in the nation; the governor can appoint judges with
impunity because there is absolutely no oversight by the
legislature - the elected representatives of the people. He
asserted that the only oversight the legislature has is with
regard to whom it confirms to serve on the Alaska Judicial
Council. He asked whether Ms. Andrews feels she would represent
the "majority" of the legislature's philosophy on judges.
MS. ANDREWS said, "Probably not," and noted that she is a
Democrat, and that the majority of the legislature is
Republican. But, she added, "as you know, our constitution"
doesn't require that appointments represent the majority of any
body, at any given time. She said that she considers herself to
be a constitutional scholar, adding that she believes that the
constitution provides for an independent judiciary, and that
"we" have a model judiciary. She said that according to her
experience the last 36 years in Alaska, it hasn't really
mattered who the governor is; by the time the Alaska Judicial
Council finishes its deliberative process, Alaska has judges
that serve the citizens well.
REPRESENTATIVE OGAN, after noting that there have been a number
of contentions between the judiciary and the legislature in
recent years, opined that the majority of legislators feel that
Alaska has judges, notwithstanding the separation of powers
doctrine, that tread into what should be traditional legislative
authority especially with regard to the appropriation of funds,
which is tied to the abortion issue. He asked whether Ms
Andrews would query potential judicial candidates "along those
lines."
Number 0815
MS. ANDREWS said:
I have not seen any evidence of the court system
trying to appropriate; I believe that is reserved to
the legislature. At any given time, I imagine the
legislature, or the executive branch, would take
exception to a decision made by the judicial, but I
don't believe that they are trying to usurp their
powers - certainly not the power of appropriation.
REPRESENTATIVE OGAN said that he respectfully disagrees.
REPRESENTATIVE JAMES thanked Ms. Andrews for coming forward to
speak, and acknowledged Ms. Andrews' inclination to continue
serving on the council. Representative James said she agreed
that the Alaska Judicial Council is a very important council to
serve on. Referring to Ms Andrews' responses to Representative
Ogan's questions, Representative James opined that Ms. Andrews
is indicating an assumption that there is a huge difference
between the Republicans and the Democrats on the issue of who
would make a good judge. Representative James said she is not
convinced that "we" ought to be able to know the difference, and
offered her preference for having a judge who weighs everything
and comes down with what is probably a nonbiased opinion.
Therefore, on the issue of choosing a judge, she said she would
rather have, "after the fact," an evaluation of the judge based
on his/her performance. She asked Ms. Andrews to comment on
these points.
MS. ANDREWS, to clarify, noted again that she did not see an
encroachment of the judiciary into legislative authority to
appropriate, and she again opined that the current process of
selecting and evaluating judges has provided the state with
excellent judges regardless of which governor appointed them.
However, on the question of which judges she would support for
appointment, clarified that she thought Representative Ogan was
asking whether she would support judges that represent the
legislative Majority's philosophy, and offered that her previous
response was meant to indicate that she would support the
appointment of judges with whom the majority of people in Alaska
would approve.
CHAIR ROKEBERG asked Ms. Andrews whether she would enquire of a
candidate for a judicial position whether he/she is a "strict
constructionist" of the law or if he/she would be more
"proactive on the bench." He noted that this point does speak
to the question of judicial appropriation and judicial "law
making." He added that he wanted to know if Ms. Andrews
considered this line of inquiry to be appropriate for a council
member.
MS. ANDREWS said, "Well, I'd have to think about that, but it
didn't come up during the "thirty-some" interviews that the
council conducted in January for the two vacancies."
CHAIR ROKEBERG pointed out that a council member would have to
raise the question in order for it to come up.
Number 1084
MS. ANDREWS responded, "I'd have to think about whether I
thought that was germane, and I don't have an instant off-the-
cuff response."
CHAIR ROKEBERG noted, for example, that yesterday, the committee
heard legislation regarding legal separation, and he said that
it come to light that an Anchorage superior court judge had,
"basically, promulgated the concept in case law, and it was
ratified by the state's supreme court." He said that he did not
think that this is an appropriate activity for the courts.
"Therefore, I think those types of things are very germane and
they should be asked of every candidate for judgeship - whether
they are going to pursue that line of judicial discretion," he
remarked.
MS. ANDREWS said:
This is something I can certainly ask the rest of the
council. The meetings in January were my first, and I
don't believe I innovated anything. I'm a pretty good
interviewer and reviewer of employees - I've hired
thousands - but that particular issue was not brought
up by any other council member. When we next have our
meetings or teleconference, I will share your comments
with them.
CHAIR ROKEBERG opined that the question of whether someone leans
more towards being a "strict constructionist" does reflect that
person's political philosophy to a degree.
MS. ANDREWS explained that the Alaska Judicial Council is
supposed to interview candidates based on their legal
background, their judicial temperament, and all the other
"things" that are in statute; then, during their term of
appointment on the bench, if they were to do something that
anybody - individual or group - felt was a violation of law or
the constitution, then that would become a retention issue,
which the council would hear and make an evaluation of for the
next ballot.
CHAIR ROKEBERG said he did not disagree entirely with those
points, but he noted that he still wants to know whether Ms.
Andrews considered the aforementioned line of inquiry to be
appropriate for a council member. He opined that it reflects
the constitutional separation of powers.
MS. ANDREWS, in response, pointed out that if these were "cut
and dried" answers, "we" wouldn't have anything going to the
superior court, supreme court, or any other appellate body; it's
a matter of the philosophy of the people at any given time.
"This is your legitimate concern, and I respect that, but I
don't believe it's universal and everlasting, so I can't tell
you what I would ask of any given candidate at any given time."
She then noted that the term "strict constructionist" is very
subjective, and if it were something that was universally
understood and accepted, "we" wouldn't even be talking about it.
CHAIR ROKEBERG opined that the term "strict constructionist" is
understood within the judiciary.
MS. ANDREWS responded, "No, I don't believe so."
Number 1267
REPRESENTATIVE JAMES mentioned that she agreed with Chair
Rokeberg's comments. She offered that when the court
establishes case law, it is usually based on an evaluation of
certain law already on the books, and should be accompanied by
some underlying support for the case law.
CHAIR ROKEBERG noted that his intention in asking his questions
is nonpartisan and stem from his opinion that respect for the
constitution should be foremost for anybody appointed to the
judiciary; a candidate's perspective on the "line between the
legislature and the judiciary" as it pertains to lawmaking and
appropriation should be questioned, he added, regardless of
political party. He offered that there is a substantial amount
of frustration in the legislature regarding the "very active
judiciary" and separation of powers.
REPRESENTATIVE COGHILL thanked Ms. Andrews for her work on the
council. He offered that past legislative discussions regarding
the election of judges comes from the public's frustration that
they don't have any input regarding who becomes a judge or who
is retained as a judge. He also said it seems as though there
has been discussion that the meetings of the Alaska Judicial
Council are not done out in the open enough, and he asked Ms.
Andrews to comment.
MS. ANDREWS mentioned that there is a "perennial public meeting
[attendee]" in Anchorage, who goes to all the public meetings of
many different boards and commissions. She noted that all of
the [council's] deliberations regarding candidates, with the
exception of the interviews, are open to the public. She said
she believes that practically all [governmental] business needs
to be done in meetings open to the public, except for perhaps
discussions surrounding lawsuits or specific personnel issues.
She said:
I think that from what I understand of the law and
what I've seen in practice in Alaska, that as much as
is legally possible, [business] for the Alaska
Judicial Council has been conducted in public, and if
there is any question about whether something has not
been, I would like to take that [information] back to
the council members.
Number 1482
REPRESENTATIVE COGHILL noted that rather than voicing an
accusation, he was merely relaying that people are frustrated
because they feel that they don't have access, and he asked that
the council consider this during its deliberations.
MS. ANDREWS offered that during the Alaska Judicial Council's
meetings, there is a public hearing portion, and that when the
meeting is being teleconferenced, anyone can come and listen in
at the council office. She noted that sadly, people participate
in public hearings less than they vote, and she then mentioned
that at the last election held in Anchorage, only 19 percent of
the people voted. She relayed that she would like to do
everything possible, including advertise, to induce public
involvement because she thinks that the public is served better
when they participate in "the peoples' business."
REPRESENTATIVE OGAN commented that Ms. Andrews' remark regarding
a lack of "discussion about that kind of a litmus test" merely
underscores one of the reasons that the legislature has problems
with the judiciary.
CHAIR ROKEBERG said, "I would take exception, Representative
Ogan; I wouldn't even call it a litmus test."
MS. ANDREWS noted that she has been on the [council] only four
months and has experienced only three days of meetings, all of
which were spent interviewing 34 candidates. At that time, she
explained, the council had other business on it agenda - which
was noticed - but she added that had anyone else (legislator or
citizen) been concerned about other things, they would have been
welcome to come to the meetings and bring it to the council's
attention.
REPRESENTATIVE OGAN noted that confirmation hearings are the
forum that the legislature has in which to bring items to the
council's attention, and said that he would appreciate Ms.
Andrews' conveying his concerns to fellow council members. He
said he would like to see the Alaska State Constitution amended
such that it would allow the legislature to confirm judges,
similar to what is done in the U.S. Constitution.
CHAIR ROKEBERG thanked Ms. Andrews for her testimony, her
service on the Alaska Judicial Council, and her willingness to
continue serving. He then closed the public hearing on Ms.
Andrews' reappointment to the Alaska Judicial Council.
Number 1593
REPRESENTATIVE JAMES moved to report the nomination of Eleanor
Andrews to the Alaska Judicial Council out of committee. There
being no objection, the confirmation was advanced.
SB 105 - VICTIMS' RIGHTS/ PRISONER'S PFD
[Contains brief note that HB 133 was incorporated into the work
draft of SB 105, Version L, which was adopted and discussed at
this meeting.]
Number 1600
CHAIR ROKEBERG announced that the next order of business would
be CS FOR SENATE BILL NO. 105(FIN), "An Act relating to victims'
rights; relating to establishing an office of victims' rights;
relating to the authority of litigants and the court to comment
on the crime victim's choice to appear or testify in a criminal
case; relating to compensation of victims of violent crimes;
relating to eligibility for a permanent fund dividend for
persons convicted of and incarcerated for certain offenses;
relating to notice of appropriations concerning victims' rights;
amending Rules 16 and 30, Alaska Rules of Criminal Procedure,
Rule 9, Alaska Delinquency Rules, and Rule 501, Alaska Rules of
Evidence; and providing for an effective date."
Number 1677
REPRESENTATIVE COGHILL made a motion to adopt the proposed
committee substitute (CS) for SB 105, version 22-LS0219\L,
Luckhaupt, 4/11/01, as a work draft. There being no objection,
Version L was before the committee.
Number 1700
JULI LUCKY, Staff to Senator Rick Halford, Alaska State
Legislature, on behalf of Senator Halford, sponsor, confirmed
that HB 133 - the governor's bill pertaining to restitution -
has been incorporated into Version L of SB 105.
Number 1756
CHAIR ROKEBERG made a motion to adopt Amendment 1, which read
[original punctuation provided]:
Page 6, lines 8-9:
Following "misdemeanor."
Delete "A copy of the completed form shall be
provided"
Insert "The defendant shall provide a copy of the
completed form"
Page 7, line 2 through Page 8, line 6:
Delete all material and insert:
(e) The Department of Law is authorized to
collect restitution on behalf of the recipient unless
(1) the recipient elects as provided in (f) of
this section to enforce the order of restitution
without the assistance of the Department of Law; or
(2) the order requires restitution to be made in
a form other than payment of a specific dollar amount.
(f) The court shall forward a copy of an order
of restitution to the Department of Law when the
judgement is entered. Along with the copy of the
order, the court shall provide the name, date of
birth, social security number, and current address of
the recipient of the restitution and the defendant, to
the extent that the court has that information in its
possession. Upon receipt of the order and other
information from the court, the Department of Law
shall send a notice to the recipient regarding the
recipient's rights under this section, including the
right to elect to enforce the order of restitution
without the assistance of the Department of Law. The
information provided to the Department of Law under
this subsection is confidential and is not open to
inspection as a public record under AS 40.25.110. The
Department of Law or its agents may not disclose the
information except as necessary to collect on the
restitution.
(g) The Department of Law may not begin
collection procedures on the order of restitution
until the recipient has been given notice and has been
given 30 days after receipt of notice to elect to
collect the restitution without the assistance of the
Department of Law. A recipient may inform the
Department of Law at a later time of the recipient's
election to collect the restitution without the
assistance of the Department of Law; upon receipt of
that information, the Department of Law may no longer
proceed with collection efforts on behalf of the
recipient. A recipient who has elected under this
section to collect restitution without the assistance
of the Department of Law may not later request the
services of that department to collect the
restitution.
(h) If the Department of Law or its agents
proceed to collect restitution on behalf of a
recipient under (g) of this section, the actions of
the Department of Law or an agent of the Department of
Law on behalf of the recipient do not create an
attorney-client relationship between the Department of
Law and the recipient. The Department of Law or its
agent may not settle a judgement for restitution
without the consent of the recipient of the
restitution.
(i) An action for damages may not be brought
against the state or any of its agents, officers, or
employees based on an action or omission under this
section.
(j) The Department of Law may enter into
contracts on behalf of the state to carry out the
collection procedures of this section. The Department
of Law may adopt regulations necessary to carry out
the collection procedures of this section, including
the reimbursement of attorneys fees and costs in
appropriate cases.
Page 23, lines 19-20:
Following "election to"
Delete "inform the Department of Law of an
election to"
Page 22, line 27:
Following "when the"
Delete "order"
Insert "judgement"
Page 23, line 29:
Following: "settle"
Delete "an order of"
Insert "a judgement for"
MS. LUCKY explained that Amendment 1 is a technical amendment
that will fix some inconsistencies found after portions of HB
133 was incorporated into Version L of SB 105. In detail, the
first section of Amendment 1 will specify that it is the
defendant who shall provide a copy of the completed financial
information form to the prosecuting authority; the second
section of Amendment 1 mirrors the structure of the enabling
language for the Department of Law (DOL) regarding restitution
with that which pertains to the Division of Juvenile Justice;
the third section of Amendment 1 fixes a typo containing
duplicate language; and the fourth and fifth sections of
Amendment 1 bring the Division of Juvenile Justice into
compliance by replacing references to "order" with "judgement".
Number 1867
CHAIR ROKEBERG asked whether there were any objections to
Amendment 1. There being no objection, Amendment 1 was adopted.
Number 1870
CHAIR ROKEBERG made a motion to adopt Amendment 2, which read:
Page 1, line 2:
Delete "authority of litigants and the court to
comment on the"
Page 2, line 1:
Delete "Rules 16 and 30"
Insert "Rule 16"
Page 8, lines 7 - 13:
Delete all material.
Insert a new bill section to read:
"* Sec. 12. AS 12.55 is amended by adding a new
section to read:
Sec. 12.55.151. Court may not reduce or mitigate
punishment based on victim's failure to appear or
testify. Notwithstanding another provision of law,
when sentencing a defendant, a court may not mitigate
or reduce the punishment of the defendant based on, or
otherwise consider as a mitigating factor or reason to
impose a lesser punishment, the failure of the crime
victim to appear or testify."
Page 25, lines 25 - 29:
Delete all material.
Renumber the following bill sections accordingly.
Page 26, lines 12 - 16:
Delete all material.
Renumber the following bill sections accordingly.
Page 27, line 1:
Delete "and 34 - 37"
Insert "34, and 35"
Page 27, line 5:
Delete "39, and 40"
Insert "37, and 38"
Page 27, line 7:
Delete "and 34 - 37"
Insert "34, and 35"
Page 27, line 9:
Delete "and 38"
Insert "and 36"
MS. LUCKY explained that an amendment adopted in the Senate
Finance Committee prohibits comment on whether a victim chooses
to testify or not. To forestall constitutional difficulties,
Amendment 2 alters the language to simply clarify that the court
may not reduce or mitigate punishment based on the victim's
failure to appear or testify, and moves this language to AS
12.55, which is the sentencing statute.
Number 1927
CHAIR ROKEBERG asked whether there were any objections to
Amendment 2. There being no objection, Amendment 2 was adopted.
Number 1941
CHAIR ROKEBERG made a motion to adopt Amendment 3, which read:
Page 2, line 2:
Delete "Rule 501"
Insert "Rules 402 and 501"
Page 16, lines 7 - 12:
Delete all material and insert:
"Sec. 24.65.200. Victims' advocate's privilege
not to testify or produce documents or other evidence.
Except as may be necessary to enforce the provisions
of this chapter, the determinations, conclusions,
thought processes, discussions, records, reports, and
recommendations of or information collected by the
victims' advocate or staff of the victims' advocate
are not admissible in a civil or criminal proceeding,
and are not subject to questioning or disclosure by
subpoena or discovery."
Page 26, line 10:
Delete "Rule 501"
Insert "Rules 402 and 501"
Page 26, line 11:
Following "testify":
Insert "or produce evidence"
Following "court":
Insert "and precluding admissibility of
certain evidence in certain cases"
MS. LUCKY relayed that Mr. Guaneli, Department of Law, is of the
opinion that language currently in Version L regarding the
victims' advocate's privilege not to testify is not specific
enough; Amendment 3 is intended to enumerate specifically what
is privileged.
Number 2010
REPRESENTATIVE COGHILL objected for the purpose of discussion.
CHAIR ROKEBERG called an at-ease from 1:53 p.m. to 1:56 p.m.
Number 2017
DEAN J. GUANELI, Chief Assistant Attorney General, Legal
Services Section-Juneau, Criminal Division, Department of Law
(DOL), explained that although victims' advocates could not be
compelled to testify and neither could their documents be used
as evidence, current language in Version L did not preclude
someone from going after those records and files during the
course of civil discovery and then using the information gleaned
from them. Since these records and files come from confidential
sources, he said the documents should remain confidential and be
contained within the office. Amendment 3 clarifies that these
documents are not permissible [as evidence] in proceedings and
are not subject to questioning or disclosure by subpoena or
discovery. He opined that Amendment 3 preserves the sponsor's
intent that the confidentiality of these records be maintained.
MR. GUANELI also explained that Rule 402 of the Alaska Rules of
Evidence is a general rule regarding relevant evidence, and that
the drafter felt that including specific reference to Rule 402
is necessary because it is indirectly changed by the fact that
these records are not admissible or subject to questioning.
Number 2156
CHAIR ROKEBERG asked whether there were any further objections
to Amendment 3. There being no objection, Amendment 3 was
adopted.
Number 2169
CHAIR ROKEBERG made a motion to adopt Amendment 4, which read:
Page 16, lines 24 - 26:
Delete ", including the governor and lieutenant
governor, when acting with regard to executive
clemency, judges, and magistrates"
MR. GUANELI explained that Version L defines "justice Agency" to
include any number of departments, agencies, offices, et cetera,
and that these are the agencies that the victims' advocate, in
his/her investigative capacity, could subpoena records from.
Included in this list are the governor and lieutenant governor
with regard to executive clemency, judges, and magistrates. He
opined that this language might lead to problems related to
separation of powers, and goes too far. Amendment 4 will
exclude the offices of governor and lieutenant governor from
investigations by the victims' advocate. In response to a
question, he added that with the inclusion of "court" on line 20
of page 16, the language is broad enough to include magistrates,
judges, deputy magistrates, supreme court justices, and a
variety of judicial officers.
MS. LUCKY noted that Senator Halford does not have any
objections to Amendment 4.
Number 2258
CHAIR ROKEBERG asked whether there were any objections to
Amendment 4. There being no objection, Amendment 4 was adopted.
Number 2260
CHAIR ROKEBERG made a motion to adopt Amendment 5, which read
[original punctuation provided]:
Page 14, Line 31:
Delete "or"
Page 15, line 3, following "rights":
Insert";
(5) a victim counselor concerning a matter
made confidential by AS 18.66.200 - 18.66.250; or
(6) a justice agency concerning records that
lead to the disclosure of a confidential police
informant."
MR. GUANELI, in support of Amendment 5, explained that pages 14-
15 contain a number categories of persons or agencies that would
be exempt from having their records subpoenaed, including
judges, justices, magistrates, and members of juries, and he
said it was felt that victims' counselors should be included in
this exemption since they already operate under very detailed
confidentiality rules and because release of such information
would interfere in the victim/counselor relationship. In
addition, he explained that any police agency records that might
lead to the disclosure of confidential police informants should
also be included in the exemption because release of their
identities might put them in physical danger.
Number 2346
CHAIR ROKEBERG asked whether there were any objections to
Amendment 5. There being no objection, Amendment 5 was adopted.
REPRESENTATIVE BERKOWITZ asked whether the issue of "subpoenaing
the privileged informational work product," which he had
previously discussed with Ms. Lucky, has been addressed yet.
MS LUCKY noted that an actual amendment addressing that topic
has not yet been drafted. She explained that she has made
inquiries into whether there is a danger of having
attorney/client communications subpoenaed under the current
language in Version L. She said that the responses she received
from the DOL, the drafter, and the majority counsel indicated
that the current language that says, "subject to privileges the
witnesses have in the courts of this state", would protect the
attorney/client privilege. She sought further comments from
Representative Berkowitz, and also said she would be willing to
change this language if any member had suggestions for specific
changes. She noted one such suggestion is to replace the
aforementioned language with "subject to privileges recognized
by court rule and statute", and another option offered is to
insert language into AS 24.65.130(c)(4) that would include in
the exclusions from subpoena the privileged communications of a
defendant's attorney. She commented that the latter option
might be the more appropriate change since the current language
addresses what may be subpoenaed by the advocate while
investigating a victim's complaint that he/she has been denied
constitutional and statutory rights.
TAPE 01-68, SIDE B
Number 2480
REPRESENTATIVE BERKOWITZ expressed willingness to consider the
former aforementioned option as a conceptual amendment.
CHAIR ROKEBERG called an at-ease from 2:08 p.m. to 2:10 p.m.
Number 2473
REPRESENTATIVE BERKOWITZ made a motion to adopt Conceptual
Amendment 6.
MS. LUCKY recapped that on page 14, lines 6-7, Conceptual
Amendment 6 would delete "Subject to the privileges that
witnesses have in the courts" and insert "Subject to the
privileges recognized by court rule and statute".
Number 2416
CHAIR ROKEBERG asked whether there were any objections to
adopting Conceptual Amendment 6. There being no objection,
Conceptual Amendment 6 was adopted.
Number 2399
BLAIR McCUNE, Deputy Director, Central Office, Public Defender
Agency (PDA), Department of Administration, testified via
teleconference and suggested that out of an abundance of
caution, the language "or an attorney retained by the person or
appointed by the court to represent the person" could also be
added to subsection (c)(4) on page 15, line 3, after "rights".
He noted that this would clarify that an attorney's confidential
communications with his/her client cannot be subpoenaed.
Number 2249
CHAIR ROKEBERG made a motion to adopt Conceptual Amendment 7,
which would insert "or an attorney retained by the person or
appointed by the court to represent the person" after "rights"
on page 15, line 3. There being no objection, Conceptual
Amendment 7 was adopted.
MR. McCUNE, on a slightly different point, clarified that the
PDA does not consider itself to be a justice agency under the
definition in Version L because it is not concerned with
apprehension, prosecution, incarceration, or supervision. He
also noted that the Office of Public Advocacy is not a justice
agency under this definition either.
REPRESENTATIVE BERKOWITZ, on the point of another conceptual
amendment, suggested that "this new bureaucracy" should have a
sunset date.
MS. LUCKY stated a preference not to include a sunset date.
REPRESENTATIVE BERKOWITZ opined that if the [Office of Victims'
Rights] has a sunset date, the legislature will then have the
opportunity to revisit the issue and determine whether the
sunset should be removed or if other steps need to be taken.
REPRESENTATIVE JAMES expressed agreement with this concept.
Number 2223
REPRESENTATIVE BERKOWITZ made a motion to adopt Conceptual
Amendment 8, which would provide a sunset date of July 1, 2005,
for the [Office of Victims' Rights].
Number 2200
CHAIR ROKEBERG objected for the purpose of discussion.
MS. LUCKY, in response to questions, explained that Version L
has three different effective dates. The first effective date -
the immediate effective date - deals with the regulations and
receiving money from forfeited permanent fund dividends (PFDs).
The second effective date of July 1, 2002, relates to the Office
of Victims' Rights, which won't be up and running until then.
The third effective, which addresses the restitution provisions,
will be January 1, 2002. She mentioned that the fiscal notes
total a little over $500,000. She reiterated that she would
prefer not to have a sunset date, but added that a sunset date
of 2006 would at least allow the [Office of Victims' Rights] to
operate for a full four years.
REPRESENTATIVE BERKOWITZ said, "That'd be fine; I would take
that as a friendly amendment."
Number 2152
CHAIR ROKEBERG announced that the amendment to Conceptual
Amendment 8 would result in a sunset date of July 1, 2006, for
the provisions pertaining to [the Office of Victims' Rights].
There being no objection, the amendment to Conceptual Amendment
8 was adopted.
REPRESENTATIVE JAMES opined that a sunset date would not be
injurious to the legislation, and that it makes rational sense
to provide a sunset date.
CHAIR ROKEBERG maintained his objection to Conceptual Amendment
8, as amended.
Number 2079
A roll call vote was taken. Representatives James, Meyer, and
Berkowitz voted for Conceptual Amendment 8, as amended.
Representatives Coghill and Rokeberg voted against it.
Therefore, Conceptual Amendment 8, as amended, passed by a vote
of 3-2.
MR. GUANELI, in response to questions regarding a memorandum
from the drafter pertaining to Section 6, said he believed that
Version L, as drafted, is constitutional. He surmised that what
the legislature is saying via Section 6 is that the money that
was the defendant's, but as a result of some conduct of the
defendant, will now go to the victim, and that an equal amount
will be owed to the state. He opined that this is proper
legislative action and does not constitute an appropriation as
is posited by the drafter in his memorandum. He noted that
although current statute allows for bail to be forfeited if a
defendant violates the conditions of bail, the statute does not
stipulate where the funds go. As matter of practice, he added,
the funds have been going to the general fund (GF), but nothing
in statute precludes the legislature from directing forfeited
money elsewhere. He remarked that the incident referred to in
the memorandum involved fines owed to the state but which were
then paid to private organizations, whereas Section 6 is
referring to money owned by the defendant but which, upon
forfeiture, is directed by the legislature to go to the victim.
He opined that language in Section 6 does not create a dedicated
fund problem.
CHAIR ROKEBERG noted that the state has a compelling interest to
ensure that victims are receiving restitution, and said that
"this" is one way to secure that. He opined that [this
compelling interest] would supersede any interpretation that
Section 6 is referring to a dedicated fund. The courts would
simply be holding the funds in trust and then issuing it to the
victim as form of restitution.
MR. GUANELI confirmed this; it would be another mechanism
similar to what the courts currently do when collecting
restitution.
Number 1901
REPRESENTATIVE BERKOWITZ, referring to the Eighth Amendment of
the U.S. Constitution addressing excessive bail, noted that the
defendant is being required to pay bail twice in these instances
of forfeiture, [once to the defendant, and then again to the
state]. He asked whether there has been any analysis done on
this point.
MR. GUANELI surmised that these instances would have to be
considered on a case-by-case basis. For example, if bail is set
at $1 million and the defendant violates the conditions of bail,
then having to pay $2 million might be considered inappropriate,
but in the normal circumstance, he offered, judges have wide
discretion to set an amount of bail. Therefore, he opined,
without looking at a specific case, one could not say that
Section 6 falls under the excessive bail provision of the U.S.
Constitution.
REPRESENTATIVE BERKOWITZ pointed out that language in Section 6
mandates that a matching amount of the forfeited bail be paid to
the state. He noted that this raises questions regarding
process; he opined that it could be problematic from a
constitutional perspective.
MR. GUANELI posited that everyone would agree that if bail is
set at $500, and the defendant has to pay $500 to the victim and
$500 to the state for a violation of bail conditions, it would
not be considered unconstitutional. He acknowledged, however,
that as the amount of bail rises, there may be other issues that
have to be resolved, and that there may be a point when the
courts say, "We can not constitutionally do what this says;
we'll pay the victim what the victim is due." He pointed out
that the victim would not get the entire amount of the forfeited
bail unless there were damages up to that amount; the victim
would only get the amount ordered for restitution. He added
that a judge might then determine that it would be excessive to
pay the state an amount that matched the forfeited bail.
REPRESENTATIVE JAMES asked whether Section 6 stipulates this.
MR. GUANELI said that he did not know that it did, but offered
that it was the only interpretation that really makes sense in
the context of collecting restitution; the victim is only going
to get what he/she is due for damages, which would be determined
at a restitution hearing.
REPRESENTATIVE BERKOWITZ said that according to his
recollection, "You can only impose [a] bail [amount that's] ...
reasonably necessary to secure the defendant's appearance, and
bail should be based on the defendant's flight risk and danger
to the community." He posited that in essence, Section 6
proposes a third and fourth criteria for imposing bail.
Number 1708
MR. GUANELI offered that on the one hand, there is the question
of how much bail the court should impose to begin with to allow
the person to get out of jail. He pointed out that bail is not
imposed with any regard to how much the victim's restitution is.
It is only if the defendant later violates the conditions [of
bail] that the question of where forfeited bail should go
arises. He opined that if the forfeited bail can go towards the
victim's restitution, it should. The question of the overall
penalty that the defendant is subject to, he asserted, is
something that is taken up at sentencing along with restitution
orders, bail forfeitures, and other types of forfeitures, all of
which must be done on a case-by-case basis.
MR. McCUNE commented that after careful review of Section 6, he
did not see a problem with it. After the bail is forfeited in a
criminal case, he explained, it's lost to the defendant. The
defendant or the bail bondsman can ask for remission of the
forfeiture, which he said he assumes is taken into account, but
if the remission fails and the money's forfeited, it's gone. He
pointed out that the victim doesn't get a windfall since the
language says, "the court shall apply the cash or other security
to an order that the defendant pay restitution"; consequently,
if the forfeited amount is $1 million but the restitution order
is $500, only $500 goes to the victim.
REPRESENTATIVE JAMES pointed out that under the current
language, it appears that once the bail is forfeited, the
defendant would then be ordered to pay the exact same amount to
the state, and that this seems to her to be doubling the amount
of bail.
MR. GUANELI, in response, explained that the process outlined in
Section 6 would work thus: If a defendant has to post $5,000
bail and owes $1,000 restitution to the victim, the total amount
is $6,000. Upon forfeiture of the bail, $1,000 would go to the
victim first and the remaining $4,000 would go to the state
general fund (GF). The state would then enter a separate
judgment of $1,000 to be paid to the state for the amount of
bail still owed. In this way, a defendant who violates the
conditions of bail still pays a total of $6,000, but the victim
gets paid restitution first. He added that since the victim is
the first payee, the state, then, is responsible for going after
any amount still owed for forfeited bail.
REPRESENTATIVE JAMES likened it to a lien that the victim has on
the forfeited bail.
MR. GUANELI agreed, and added that the victim has first priority
for receiving the money.
CHAIR ROKEBERG said that it certainly seems to be to the
public's benefit and in the state's best interest to make sure
that restitution is paid to the victim before the GF is
increased.
Number 1430
REPRESENTATIVE COGHILL opined that Section 6 still needs
clarification; he said it still looks like the defendant could
end up paying more than the amount of restitution due.
REPRESENTATIVE BERKOWITZ suggested deleting "forfeited and
applied" from page 5, line 9, after "amount".
MS. LUCKY concurred that doing so would clarify that the
separate order is not referring to the forfeited amount, but
only to the amount of restitution.
Number 1292
CHAIR ROKEBERG indicated that he would treat that suggestion as
a motion from Representative Coghill to adopt Conceptual
Amendment 9, which would delete "forfeited and applied" from
page 5, line 9, after "amount". There being no objection,
Conceptual Amendment 9 was adopted.
Number 1233
REPRESENTATIVE JAMES moved to report the HCS for CSSB 105,
version 22-LS0219\L, Luckhaupt, 4/11/01, as amended, out of
committee with individual recommendations and the accompanying
fiscal notes. There being no objection, HCS CSSB 105(JUD) was
reported from the House Judiciary Standing Committee.
Number 1224
CHAIR ROKEBERG announced that the committee needed to adopt a
House Concurrent Resolution to change the title of SB 105.
Number 1212
REPRESENTATIVE JAMES made a motion to adopt the proposed House
Concurrent Resolution, version 22-LS0909\A, Luckhaupt, 4/11/01,
as a work draft. There being no objection, it was so ordered.
Number 1203
REPRESENTATIVE JAMES moved to report the proposed House
Concurrent Resolution, version 22-LS0909\A, Luckhaupt, out of
committee with individual recommendations. There being no
objection, the House Concurrent Resolution [which later became
HCR 18] was reported from the House Judiciary Standing
Committee.
[HCS CSSB 105(JUD) was reported from committee.]
HB 49 - EXTEND TERMINATION DATE FOR BD OF PAROLE
Number 1190
CHAIR ROKEBERG announced that the next order of business would
be HOUSE BILL NO. 49, "An Act extending the termination date of
the Board of Parole; and providing for an effective date."
Number 1174
LARRY JONES, Executive Director, State Board of Parole,
Department of Corrections (DOC), explained that the Division of
Legislative Audit has performed a sunset review and recommends
that the State Board of Parole be extended. He added that the
State Board of Parole supports HB 49. In response to questions,
he said the final audit report makes three perfunctory,
administrative-type recommendations, none of which will require
statutory changes. He noted that the audit report recommends
that the termination date be extended to June 30, 2005, whereas
HB 49 provides for a June 30, 2006, termination date. He also
mentioned that in past years, [the Division of Legislative
Audit] has been trying to provide for longer termination dates
for the State Board of Parole because of the cost of doing
reviews more often.
REPRESENTATIVE COGHILL commented that parole officers seem to
have a lot of power without a lot of oversight, and he then
inquired about accountability.
MR. JONES, in response, and for clarification, said that the
State Board of Parole is an autonomous board that is ostensibly
associated with the DOC but is officially a board that is
appointed by the governor. He noted that the State Board of
Parole is placed in the DOC for administrative expediency, but
is very self-contained and is strictly concerned with parole
hearings. He said that the State Board of Parole consciously
tries to stay out of the DOC'S business, which includes
oversight of parole officers. And although he acknowledged that
the State Board of Parole interacts everyday with "the system",
he maintained that the State Board of Parole does not have any
authority over parole officers. He remarked that the State
Board of Parole highly respects the parole officers of the state
of Alaska, and feels that the parole officers do a very
commendable job.
CHAIR ROKEBERG asked whether any steps have been taken to follow
through with the audit report's Recommendation No. 1 regarding
notification of a victim's right to comment at parole hearings.
MR. JONES noted that over the last few years there have been
statutory additions to the parole process that have provided
victims' rights, such as allowing victim participation at parole
hearings, which the State Board of Parole views as a positive
thing. As more victims become aware of those rights, he
explained, they are becoming more participative, which has a
profound impact on the decisions made at parole hearings. In
response to the question regarding Recommendation No. 1, he
reported that current statute holds the State Board of Parole
responsible for notifying a victim of an upcoming parole
hearing, but in practice, it is the DOC that carries out that
responsibility. Recommendation No. 1 suggests that the State
Board of Paroled should develop a Memorandum of Understanding
(MOU) with the DOC to formally reflect that it is the DOC that
performs this service. He noted that since the DOC maintains a
database of victims, and since the State Board of Parole only
has a staff of five, it makes logistical sense for the DOC to
continue with the notification process; thus the MOU will simply
acknowledge in writing what is already being done. He added
that he and the "victims' rights coordinator" from the DOC are
in the process of drafting the MOU.
Number 0772
MR. JONES, with regard to Recommendation No. 2, explained that
there are five citizen board members, none of which are State of
Alaska employees, and most serve on the board for a long time;
for instance, the current board chair has been on the board for
18 years. Current statute, he continued, states that the
governor shall set the board members' compensation, which was
last set in 1984 by Governor Sheffield at $150 per day and $75
per half-day. He relayed that the audit report indicates that
the State Board of Parole should submit something more current
with regard to compensation of board members.
REPRESENTATIVE COGHILL asked how out-of-state inmates receive
parole hearings.
MR. JONES explained that the State Board of Parole travels to
Arizona for "face-to-face hearings."
Number 0626
REPRESENTATIVE JAMES moved to report HB 49 out of committee with
individual recommendations and the accompanying fiscal note.
There being no objection, HB 49 was reported from the House
Judiciary Standing Committee.
SB 81 - NONADEMPTION OF TRANSFERS IN TRUSTS
Number 0595
CHAIR ROKEBERG announced that the next order of business would
be SENATE BILL NO. 81, "An Act relating to the nonademption of
property transfers; and providing for an effective date."
Number 0585
WILDA RODMAN, Staff to Senator Gene Therriault, Alaska State
Legislature, presented SB 81 on behalf of the sponsor, Senator
Therriault. She explained that SB 81 will make a correction to
HB 275 [21st Alaska State Legislature], which changed some of
the rules of construction applicable to wills and other
governing instruments. She noted that Section 1 of HB 275
changed a rule of construction that outlines what happens when a
request in a will cannot be carried out, and that Section 2 of
HB 275 was meant to take the section pertaining to wills and
apply it to trusts. When HB 275 was drafted, she explained,
some intended changes were overlooked, and SB 81 will correct
these discrepancies in the language. She noted that the
Department of Law (DOL) has provided a letter confirming that SB
81 appears to accomplish this, and that the sponsor statement
for HB 275 has also been provided.
Number 0491
STEPHEN E. GREER, Attorney at Law, testified via teleconference
and assisted with the presentation of SB 81. He concurred that
SB 81 is merely a technical correction of legislation adopted
last year. Specifically, SB 81 is meant to change the language
in the Uniform Probate Code regarding nonademption [of property
transfers]. He explained that SB 81 says:
Nonademption refers to rule construction that applies
when a person creating a trust or will designates that
a specific person is to receive a specific item of
property, and at death that is unable to be carried
out because the property no longer exists. And the
general rule is that the specific request is adeemed
or extinguished if the property doesn't exist at the
death of the settlor. ... This rule of construction,
which can always be altered by a will - or [a] trust,
in this case - is applied if nothing's stated.
REPRESENTATIVE BERKOWITZ asked if the following interpretation
of Section 2 is correct: "If you sell the property - get rid of
it - then the beneficiary gets the money?"
MR. GREER responded:
If you sell the property before you die, and the
property no longer exists, then the specific legatee
will not receive that property; that's the general
rule. And in this particular section, it says that
general rule [will] be altered in certain specific
situations that are spelled out in the Uniform Probate
Code.
REPRESENTATIVE BERKOWITZ said, "So, under these circumstances,
if someone gets rid of the property, then the beneficiary gets
compensation."
MR. GREER said yes, under certain limited circumstances spelled
out in [this] section.
REPRESENTATIVE JAMES added, "If there's any left."
MR. GREER noted that the sponsor statements detail the specific
circumstances under which Section 2 of SB 81 would apply.
Number 0238
REPRESENTATIVE JAMES moved to report SB 81 out of committee with
individual recommendations and the accompanying zero fiscal
note. There being no objection, SB 81 was reported from the
House Judiciary Standing Committee.
CHAIR ROKEBERG called an at-ease from 2:54 p.m. to 2:56 p.m.
HB 164 - GRANDPARENTS' RIGHTS REGARDING CINA
Number 0165
CHAIR ROKEBERG announced that the next order of business would
be HOUSE BILL NO. 164, "An Act prescribing the rights of
grandparents related to child-in-need-of-aid hearings; and
amending Rules 3, 7, 10, 15, and 19, Alaska Child in Need of Aid
Rules." [Before the committee was CSHB 164(HES).]
Number 0160
REPRESENTATIVE FRED DYSON, Alaska State Legislature, sponsor,
explained that two years ago, the legislature passed a bill that
gives foster parents the right to be heard in disposition
hearings and custody hearings. He said he is seeking to do the
same thing for grandparents via HB 164. When the state is
taking custody of children, he noted, oftentimes it is the
grandparents who provide the most stable influence. He added
that HB 164 does not make grandparents "a party" in the
technical sense, but it does give them a right to be heard in
court so that their perspective regarding a child's placement
can be taken into account. He said that as far as he knows,
there is no one who opposes HB 164, and that every grandparent's
organization in the state that he is aware of supports HB 164.
He noted, however, that the department has asked not to be
burdened with seeking out eligible grandparents. He pointed out
that HB 164 states that the grandparents will have to identify
themselves and prove that they are indeed the grandparents -
either biologically or legally - before they have a right to
provide input before the court.
TAPE 01-69, SIDE A
Number 0001
MARCI SCHMIDT testified via teleconference and said simply that
she is in favor of HB 164. She then asked what the term
"certain" means as it is used on page 4, line 5, with regard to
"child-in-need-of-aid proceedings".
REPRESENTATIVE BERKOWITZ opined that using the term "certain" is
merely pro forma.
REPRESENTATIVE DYSON agreed, and said that that is his sense
too; it did not create a limitation of any sort, it is simply
the way "these legal things" get written.
CHAIR ROKEBERG noted that the language on page 4 is not
substantive law anyway; it is merely a court-rule-change
provision.
REPRESENTATIVE BERKOWITZ offered that this provision might be
referred to if, for example, there is a CINA (child in need of
aid) proceeding where an attorney is being sanctioned.
Number 0246
SHARON LEE SHIELDS briefly testified via teleconference in
support of HB 164. She relayed that in her situation, she was
prohibited from seeing her granddaughter because she attempted
to intervene when her granddaughter started reporting physical
abuse. She said she believes that grandparents should be
recognized for their valuable participation in their
grandchildren's lives.
Number 0319
BETTY SHORT, President, Alaska Organization for Grandparents
Rights, testified via teleconference and said that HB 164 allows
grandparents to have the opportunity to be involved in the
hearings held by the state in cases involving their
grandchildren. This is a very important procedure, she noted,
both for the courts and the Division of Family and Youth
Services (DFYS), which will help properly establish what is in
the best interest of the child as is described in AS
25.24.150(c)[(1)-(9)]. She asked how else would the court,
caseworker, court-appointed special advocate (CASA), or
[guardian] ad litem find out what is in the best interest of the
child without gaining input from outside the parties.
MS. SHORT recounted the example of one grandparent who has
evidence - phone recordings, affidavits, witnesses, and police
reports - but no one at DFYS will see or talk to her, or return
her phone calls. In her own case where she had reported abuse
of [her grandchild], she said the caseworker did not even bother
to interview any of the witnesses who had seen the abuse
occurring, but had instead sent a letter to the mother that the
charges of abuse were unfounded. After hiring an attorney and
going to court, she explained, the results of a further
investigation by a [guardian] ad litem convinced the magistrate
to confer guardianship to Ms. Short. She offered that
grandparents could help speed up investigations with their input
and past knowledge, as well as provide a safe and familiar haven
for the grandchildren while any investigation takes place.
Number 0545
CHAIR ROKEBERG closed the public hearing on HB 164.
REPRESENTATIVE BERKOWITZ expressed the concern that HB 164
mandates that the department provide written notice to a
grandparent, but does not provide any exception if the
grandparent's presence is not in the best interest of the child.
REPRESENTATIVE DYSON opined that such a situation is provided
for. He referred to page 2, line 25, which says:
However, the court may limit the presence of the
foster parent or other out-of-home care provider and
any grandparent of the child to the time during which
the person's testimony is being given if it is (1) in
the best interest of the child; or (2) necessary to
protect the privacy interests of the parties and will
not be detrimental to the child.
REPRESENTATIVE BERKOWITZ pointed out that the gap between
Section 2 and Section 3 is that the department is going to send
a notice and then the court is going to make a determination.
There is no provision if the department has information that
would indicate that the best interest of the child or the
privacy interests would be negatively impacted; HB 164 does not
give the department any discretion.
REPRESENTATIVE DYSON acknowledged that there are some cases
where the child is in need of aid because the grandparent is the
perpetrator of crimes against the child. He pointed out that
the court does have the discretion to determine whether a
grandparent should be at the hearing or in the presence of the
child.
REPRESENTATIVE BERKOWITZ argued that if the department has that
kind of information, it should also have the discretion to
refrain from sending notification to that particular
grandparent.
REPRESENTATIVE DYSON agreed that perhaps a conceptual amendment
could be adopted such that the department would be released from
the responsibility to notify if the court has found that the
grandparent has participated in crimes against the child.
REPRESENTATIVE BERKOWITZ pointed out, however, that this
solution would still require a court determination. He opined
that the department should have the discretion to refrain from
sending notice if, for example, it discovers during the course
of an investigation prior to any court proceeding that the
grandparent [should not have access to the child].
REPRESENTATIVE DYSON observed that this could lead to a "sticky"
situation because many of the grandparents with whom he has
spoken say they are uneasy about leaving that sort of decision
to the discretion of a single person in the DFYS administration.
He reminded members that most of these cases will have a
guardian ad litem appointed who will be looking out for the best
interest of the child.
CHAIR ROKEBERG opined that if there is a public record that a
grandparent has committed an offense against the child, the
department should have the discretion not to notify that
grandparent.
REPRESENTATIVE JAMES pointed out that there could also be
situations in which the grandparent is unfit to be with the
child but does not have any record of abuse.
Number 0970
REPRESENTATIVE BERKOWITZ made a motion to adopt Conceptual
Amendment 1 to Section 3, to the effect that if a grandparent
has been convicted of a crime against the child in question, or
is subject to a no contact order, the department is relieved of
the responsibility of notifying the grandparent of the
proceedings. There being no objection, Conceptual Amendment 1
was adopted.
Number 1047
REPRESENTATIVE JAMES moved to report CSHB 164(HES), as amended,
out of committee with individual recommendations and the
accompanying fiscal note. There being no objection, CSHB
164(JUD) was reported from the House Judiciary Standing
Committee.
SB 82 - 2001 REVISOR'S BILL
Number 1058
CHAIR ROKEBERG announced that the next order of business would
be CS FOR SENATE BILL NO. 82(STA), "An Act making corrective
amendments to the Alaska Statutes as recommended by the revisor
of statutes; and providing for an effective date."
Number 1084
PAM FINLEY, Revisor of Statutes, Legislative Legal Counsel,
Legislative Legal and Research Services, Legislative Affairs
Agency, explained that CSSB 82(STA) is intended to clean up
statutory language without making any policy changes or
decisions. She noted that she had submitted a sectional
analysis.
CHAIR ROKEBERG noted that the committee staff counsel has
reviewed the bill and recommends that the committee move it.
Number 1117
REPRESENTATIVE JAMES REPRESENTATIVE moved to report CSSB 82(STA)
out of the House Judiciary Standing Committee with individual
recommendations and the accompanying fiscal note. There being
no objection, CSSB 82(STA) was reported from the House Judiciary
Standing Committee.
ADJOURNMENT
Number 1138
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:15 p.m.
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