05/09/2003 01:25 PM House JUD
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ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
May 9, 2003
1:25 p.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson, Vice Chair
Representative Jim Holm
Representative Dan Ogg
Representative Ralph Samuels
Representative Les Gara
Representative Max Gruenberg
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE JOINT RESOLUTION NO. 22
Relating to the USA PATRIOT Act and to defending the Bill of
Rights, the Constitution of the State of Alaska, and civil
liberties.
- MOVED CSHJR 22(JUD) OUT OF COMMITTEE
CONFIRMATION HEARINGS
Board of Governors of the Alaska Bar
William A. Granger - Anchorage
- CONFIRMATION ADVANCED
HOUSE BILL NO. 244
"An Act relating to the Code of Criminal Procedure; relating to
defenses, affirmative defenses, and justifications to certain
criminal acts; relating to rights of prisoners after arrest;
relating to discovery, immunity from prosecution, notice of
defenses, admissibility of certain evidence, and right to
representation in criminal proceedings; relating to sentencing,
probation, and discretionary parole; amending Rule 16, Alaska
Rules of Criminal Procedure, and Rules 404, 412, 609, and 803,
Alaska Rules of Evidence; and providing for an effective date."
- MOVED CSHB 244(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 260
"An Act relating to immunity for free health care services
provided by certain health care providers; and providing for an
effective date."
- MOVED CSHB 260(JUD) OUT OF COMMITTEE
HOUSE JOINT RESOLUTION NO. 9
Proposing amendments to the Constitution of the State of Alaska
relating to an appropriation limit and a spending limit.
- HEARD AND HELD
HOUSE BILL NO. 56
"An Act relating to the attorney fees and costs awarded in
certain court actions relating to unfair trade practices; and,
if considered court rule changes, amending Rules 54(d), 79, and
82, Alaska Rules of Civil Procedure."
- SCHEDULED BUT NOT HEARD
CS FOR SENATE BILL NO. 98(TRA)
"An Act relating to civil liability for boat owners and to civil
liability for guest passengers on an aircraft or watercraft; and
providing for an effective date."
- SCHEDULED BUT NOT HEARD
HOUSE JOINT RESOLUTION NO. 4
Proposing an amendment to the Constitution of the State of
Alaska relating to the duration of a regular session.
- SCHEDULED BUT NOT HEARD
HOUSE BILL NO. 103
"An Act limiting the factors that may be considered in making a
crime victims' compensation award in cases of sexual assault or
sexual abuse of a minor."
- BILL HEARING POSTPONED
HOUSE BILL NO. 13
"An Act declaring legislative intent to reject the continuity of
enterprise exception to the doctrine of successor liability
adopted in Savage Arms, Inc. v. Western Auto Supply, 18 P.3d 49
(Alaska 2001), as it relates to products liability; providing
that a successor corporation or other business entity that
acquires assets of a predecessor corporation or other business
entity is subject to liability for harm to persons or property
caused by a defective product sold or otherwise distributed
commercially by the predecessor only if the acquisition is
accompanied by an agreement for the successor to assume the
liability, results from a fraudulent conveyance to escape
liability for the debts or liabilities of the predecessor,
constitutes a consolidation or merger with the predecessor, or
results in the successor's becoming a continuation of the
predecessor; defining 'business entity' that acquires assets to
include a sole proprietorship; and applying this Act to the
sale, lease, exchange, or other disposition of assets by a
corporation, a limited liability company, a partnership, a
limited liability partnership, a limited partnership, a sole
proprietorship, or other business entity that occurs on or after
the effective date of this Act."
- BILL HEARING POSTPONED
PREVIOUS ACTION
BILL: HJR 22
SHORT TITLE:PATRIOT ACT AND DEFENDING CIVIL LIBERTIES
SPONSOR(S): REPRESENTATIVE(S)GUTTENBERG
Jrn-Date Jrn-Page Action
04/02/03 0737 (H) READ THE FIRST TIME -
REFERRALS
04/02/03 0737 (H) STA, JUD
04/07/03 0830 (H) COSPONSOR(S): CRAWFORD
04/23/03 1078 (H) COSPONSOR(S): KERTTULA
05/06/03 (H) STA AT 8:00 AM CAPITOL 102
05/06/03 (H) Moved Out of Committee
MINUTE(STA)
05/06/03 1345 (H) STA RPT 3DP 3NR
05/06/03 1345 (H) DP: SEATON, GRUENBERG,
WEYHRAUCH;
05/06/03 1345 (H) NR: HOLM, LYNN, DAHLSTROM
05/06/03 1345 (H) FN1: ZERO(LAW)
05/08/03 1479 (H) FIRST COSPONSOR(S): COGHILL
05/09/03 1522 (H) COSPONSOR(S): HOLM, MCGUIRE
05/09/03 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 244
SHORT TITLE:CRIMINAL LAW/SENTENCING/PROBATION/PAROLE
SPONSOR(S): RLS BY REQUEST OF THE GOVERNOR
Jrn-Date Jrn-Page Action
04/04/03 0770 (H) READ THE FIRST TIME -
REFERRALS
04/04/03 0770 (H) JUD, FIN
04/04/03 0771 (H) FN1: ZERO(LAW)
04/04/03 0771 (H) FN2: (COR)
04/04/03 0771 (H) GOVERNOR'S TRANSMITTAL LETTER
04/14/03 (H) JUD AT 1:00 PM CAPITOL 120
04/14/03 (H) Heard & Held
MINUTE(JUD)
04/25/03 (H) JUD AT 1:00 PM CAPITOL 120
04/25/03 (H) <Bill Hearing Postponed>
05/07/03 (H) JUD AT 1:00 PM CAPITOL 120
05/07/03 (H) Scheduled But Not Heard
05/08/03 (H) JUD AT 3:30 PM CAPITOL 120
05/08/03 (H) Heard & Held
MINUTE(JUD)
05/09/03 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 260
SHORT TITLE:IMMUNITY FOR PROVIDING FREE HEALTH CARE
SPONSOR(S): REPRESENTATIVE(S)SEATON
Jrn-Date Jrn-Page Action
04/11/03 0935 (H) READ THE FIRST TIME -
REFERRALS
04/11/03 0935 (H) L&C, JUD
04/23/03 1081 (H) COSPONSOR(S): GARA
04/24/03 1111 (H) COSPONSOR(S): ANDERSON
04/28/03 (H) L&C AT 3:15 PM CAPITOL 17
04/28/03 (H) Moved CSHB 260(L&C) Out of
Committee
MINUTE(L&C)
04/30/03 1197 (H) L&C RPT CS(L&C) 2NR 5AM
04/30/03 1197 (H) NR: LYNN, ROKEBERG; AM:
GATTO,
04/30/03 1197 (H) CRAWFORD,GUTTENBERG,
DAHLSTROM,
04/30/03 1197 (H) ANDERSON
04/30/03 1198 (H) FN1: ZERO(CED)
05/06/03 1375 (H) COSPONSOR(S): MCGUIRE
05/09/03 1523 (H) COSPONSOR(S): HOLM
05/09/03 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HJR 9
SHORT TITLE:CONST AM: APPROPRIATION/SPENDING LIMIT
SPONSOR(S): REPRESENTATIVE(S)STOLTZE
Jrn-Date Jrn-Page Action
01/31/03 0102 (H) READ THE FIRST TIME -
REFERRALS
01/31/03 0102 (H) STA, JUD, FIN
02/11/03 (H) STA AT 8:00 AM CAPITOL 102
02/11/03 (H) Heard & Held
MINUTE(STA)
03/28/03 0687 (H) COSPONSOR(S): ROKEBERG
04/04/03 0797 (H) W&M REFERRAL ADDED BEFORE STA
04/09/03 (H) W&M AT 7:00 AM HOUSE FINANCE
519
04/09/03 (H) Heard & Held
04/09/03 (H) MINUTE(W&M)
04/17/03 (H) W&M AT 7:00 AM HOUSE FINANCE
519
04/17/03 (H) Heard & Held
04/17/03 (H) MINUTE(W&M)
04/24/03 (H) W&M AT 7:00 AM HOUSE FINANCE
519
04/24/03 (H) Heard & Held
04/24/03 (H) MINUTE(W&M)
04/29/03 (H) W&M AT 7:00 AM HOUSE FINANCE
519 -- Location Change --
04/29/03 (H) Heard & Held
04/29/03 (H) MINUTE(W&M)
04/30/03 (H) W&M AT 8:00 AM HOUSE FINANCE
519
04/30/03 (H) Heard & Held
04/30/03 (H) MINUTE(W&M)
05/02/03 (H) W&M AT 7:00 AM HOUSE FINANCE
519
05/02/03 (H) Moved CSHJR 9(W&M) Out of
Committee
MINUTE(W&M)
05/02/03 1271 (H) W&M RPT CS(W&M) NT 3DP 2NR
2AM
05/02/03 1271 (H) DP: HEINZE, WHITAKER, HAWKER;
05/02/03 1271 (H) NR: MOSES, GRUENBERG; AM:
KOHRING,
05/02/03 1271 (H) WILSON
05/02/03 1271 (H) FN1: (GOV)
05/06/03 (H) JUD AT 5:30 PM CAPITOL 120
05/06/03 (H) <Pending Referral>
05/06/03 (H) STA AT 8:00 AM CAPITOL 102
05/06/03 (H) Scheduled But Not Heard --
05/06/03 (H) STA AT 5:30 PM CAPITOL 102
05/06/03 (H) Scheduled But Not Heard
05/07/03 (H) JUD AT 1:00 PM CAPITOL 120
05/07/03 (H) <Bill Hearing Postponed> --
05/07/03 (H) STA AT 8:00 AM CAPITOL 102
05/07/03 (H) Heard & Held
MINUTE(STA)
05/08/03 (H) STA AT 8:00 AM CAPITOL 102
05/08/03 (H) Moved CSHJR 9(STA) Out of
Committee
MINUTE(STA)
05/08/03 1465 (H) STA RPT CS(STA) NT 3DP 3NR
05/08/03 1465 (H) DP: SEATON, LYNN, DAHLSTROM;
05/08/03 1465 (H) NR: GRUENBERG, HOLM,
WEYHRAUCH
05/08/03 1466 (H) FN1: (GOV)
05/08/03 1466 (H) REFERRED TO JUDICIARY
05/08/03 (H) JUD AT 3:30 PM CAPITOL 120
05/08/03 (H) <Bill Hearing Postponed>
05/09/03 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
REPRESENTATIVE DAVID GUTTENBERG
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of HJR 22.
REPRESENTATIVE JOHN COGHILL
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Cosponsor of HJR 22 and sponsor of HJR 23.
FRANK TURNEY
Fairbanks, Alaska
POSITION STATEMENT: Testified in support of HJR 22, Version D.
JOHN BRADING
Fairbanks, Alaska
POSITION STATEMENT: Testified in support of HJR 22.
MIKE FAIR
Fairbanks, Alaska
POSITION STATEMENT: During discussion of HJR 22, testified in
support of rejecting portions of the USA PATRIOT Act.
ROGER SHANNON
Kenai, Alaska
POSITION STATEMENT: Provided brief comments during discussion
of HJR 22.
JENNIFER RUDINGER, Executive Director
Alaska Civil Liberties Union
Anchorage, Alaska
POSITION STATEMENT: Provided comments during discussion of HJR
22.
WILLIAM A. GRANGER, Appointee
Board of Governors of the Alaska Bar
Anchorage, Alaska
POSITION STATEMENT: Testified as appointee to the Board of
Governors of the Alaska Bar.
DEAN J. GUANELI, Chief Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: On behalf of the administration, during
discussion of the proposed amendments to HB 244, provided
comments and responded to questions.
BARBARA BRINK, Director
Public Defender Agency (PDA)
Department of Administration
Anchorage, Alaska
POSITION STATEMENT: During discussion of the proposed
amendments to HB 244, provided comments and responded to
questions.
JASON HARMON, N.D., Vice President
Alaska Association of Naturopathic Physicians (AKANP)
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 260.
REPRESENTATIVE PAUL SEATON
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of HB 260
MIKE HAUGAN, Executive Director
Alaska Physicians and Surgeons, Inc.
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 260 and proposed
Amendment 1.
PATRICIA SENNER, R.N., President
Alaska Nurses Association (AaNA)
Anchorage, Alaska
POSITION STATEMENT: Provided comments during discussion of HB
260.
CHIP WAGONER, Lobbyist
for Covenant House Alaska
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 260 on behalf of
Covenant House Alaska.
VIRGINIA BLAISDELL, Staff
to Representative Bill Stoltze
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HJR 9 on behalf of Representative
Stoltze, sponsor.
ACTION NARRATIVE
TAPE 03-57, SIDE A
Number 0001
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 1:25 p.m. Representatives
McGuire, Anderson, Holm, Ogg, Samuels, Gara, and Gruenberg were
present at the call to order.
HJR 22 - PATRIOT ACT AND DEFENDING CIVIL LIBERTIES
[Contains mention that HJR 23 and HJR 22 are being merged
together.]
Number 0029
CHAIR McGUIRE announced that the first order of business would
be HOUSE JOINT RESOLUTION NO. 22, Relating to the USA PATRIOT
Act and to defending the Bill of Rights, the Constitution of the
State of Alaska, and civil liberties.
REPRESENTATIVE GARA said he supported HJR 22.
Number 0292
REPRESENTATIVE DAVID GUTTENBERG, Alaska State Legislature,
sponsor, said that HJR 22 is a unique piece of legislation, and
noted that he has provided the committee with a sponsor
statement.
Number 0368
REPRESENTATIVE SAMUELS moved to adopt the proposed committee
substitute (CS) for HJR 22, Version 23-LS0924\D, Cook, 5/8/03,
as the work draft. There being no objection, Version D was
before the committee.
REPRESENTATIVE GUTTENBERG mentioned that Representative John
Coghill would be signing on as HJR 22's first cosponsor, and
that HJR 23, which was sponsored by Representative Coghill, has
been merged with HJR 22 to form Version D. He then turned
members' attention to what became known as Amendment 1, which
read [original punctuation provided]:
Page 2, Line 2
DELETE: "Adequate Tools In Opposition to"
INSERT after "Provides":
"Appropriate Tools Required to Intercept and
Obstruct"
The committee took an at-ease from 1:33 p.m. to 1:45 p.m.
REPRESENTATIVE GUTTENBERG explained that Amendment 1 will
correctly state the full name for the Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism (USA PATRIOT ACT) Act of 2001 ("USA PATRIOT
Act").
Number 0539
REPRESENTATIVE JOHN COGHILL, Alaska State Legislature, sponsor
of HJR 23 and cosponsor of HJR 22, mentioned that Amendment 1
merely corrects a drafting error.
Number 0545
REPRESENTATIVE ANDERSON made a motion to adopt Amendment 1.
There being no objection, Amendment 1 was adopted.
Number 0550
REPRESENTATIVE COGHILL turned members' attention to [Amendment
2], which read [original punctuation provided]:
Page 2, Line 26:
DELETE:
FURTHER RESOLVED that an agency or instrumentality of
the state may not
Page 2, Line 27
Delete: (1)
Insert: (4)
Page 2, Line 29
Delete: (2)
Insert: (5)
Page 3, Line 1
Delete: (3)
Insert: (6)
REPRESENTATIVE COGHILL said that he'd wanted the paragraphs
beginning on page 2, lines 27 and 29, and page 3, line 1, to
fall under the language on page 2, lines 14 and 15, which in
part says: "in the absence of reasonable suspicion of criminal
activity under Alaska State law, may not". He suggested that
Amendment 2 would accomplish this and keep with the original
intent of the resolution.
REPRESENTATIVE SAMUELS remarked that the words, "and be it"
should also be removed from page 2, line 25.
REPRESENTATIVE COGHILL agreed. [There was no formal motion, but
the foregoing was treated as an adopted amendment to Amendment
2.]
Number 0653
CHAIR McGUIRE made a motion to adopt Amendment 2 [as amended].
Number 0670
REPRESENTATIVE GRUENBERG objected. He said that he is concerned
with the amendment because the language on line 14 would "allow
them to do it with, quote, 'reasonable suspicion of criminal
activity under Alaska State law' - [to] do such things as
racial, ethnic, religious, and national origin profiling."
That's very serious stuff, he remarked, adding that according to
lines 27-31, "an agency or instrumentality of the State" could
also, with "reasonable suspicion", get involved in federal
immigration matters, and collect and maintain information about
political, religious, social views, and so forth. He said that
although he does support the resolution, he does not support the
amendment, adding, "I think it's very dangerous."
CHAIR McGUIRE suggested that Amendment 2 was created by the
sponsors in the spirit of compromise.
REPRESENTATIVE GUTTENBERG clarified that he has only just seen
this amendment. He noted that just prior to the meeting, he and
Representative Coghill had briefly discussed the idea of perhaps
simply adding something along the lines of "without just cause"
on line 26, as a different option.
REPRESENTATIVE GRUENBERG said that such an option would
certainly be acceptable to him.
REPRESENTATIVE COGHILL relayed that he wished to see some
barrier - either "reasonable suspicion" or "just cause" or some
other language - as opposed to an absolute "may not" as is
currently written. He indicated that although he would not want
to see any of the things listed in the aforementioned paragraphs
done without a compelling reason, a situation might arise that
would justify such activities.
Number 0869
CHAIR McGUIRE withdrew the motion to adopt Amendment 2 [as
amended].
Number 0880
CHAIR McGUIRE made a motion to adopt new Amendment 2, to add ",
without just cause" to page 2, line 26, after "may not". There
being no objection, new Amendment 2 was adopted.
Number 0936
FRANK TURNEY thanked both the committee and the sponsors of HJR
22, and called the resolution an important step in defending
individual liberties. He said he supports [Version D], and
offered his hope that the differences between the sponsors can
be worked out and that the Senate could support the resolution
as well. In conclusion, he encouraged the committee to pass HJR
22.
Number 1003
JOHN BRADING said that he supports HJR 22 and that the USA
PATRIOT Act is an insult to Americans - even the very name of it
is an insult, given what the Act contains. The USA PATRIOT Act
relinquishes any semblance of due process; violates the First,
Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments; and
unacceptably mixes aspects of criminal investigations with
aspects of immigration and foreign intelligence laws. The USA
PATRIOT Act is dangerous, he said, adding that it is a travesty.
Most troubling, he remarked, is that most of these powers of the
USA PATRIOT Act do little to increase the ability of law
enforcement or intelligence to bring terrorists to justice, but
do much to undermine the U.S. Constitution by violating the
rights of immigrants and American citizens alike.
MR. BRADING offered that the American Civil Liberties Union
(ACLU) has said that this sort of "trust me, we're the
government" solution is entirely unacceptable. He then offered
the following as a quote from Nancy Chang, Senior Litigation
Attorney, Center for Constitutional Rights: "To an
unprecedented degree, the Act sacrifices our political freedoms
in the name of national security and upsets the democratic
values that define our nation by consolidating vast new powers
in the executive branch of the government." Mr. Brading also
offered that Ms. Chang has said:
The USA PATRIOT Act launches a three-pronged assault
on our privacy. First, the Act grants the executive
branch unprecedented, and largely unchecked,
surveillance powers, including the enhanced ability to
track email and Internet usage, conduct sneak-and-peek
searches, obtain sensitive personal records, monitor
financial transactions, and conduct nationwide roving
wiretaps. Second, the Act permits law enforcement
agencies to circumvent the Fourth Amendment's
requirement of probable cause when conducting wiretaps
and searches that have, as "a significant purpose,"
the gathering of foreign intelligence. Third, the Act
allows for the sharing of information between criminal
and intelligence operations and thereby opens the door
to a resurgence of domestic spying by the Central
Intelligence Agency.
MR. BRADING said: "The proponents of this Act used American's
shock and fear to slip this Act past our awareness." He added,
however, that he believes in the intelligence of the average
American, and that regular Americans armed with knowledge will
use common sense to find out what the government is up to. He
asked the committee to send a message to Congress by passing HJR
22.
Number 1173
MIKE FAIR said he supports the "State of Alaska rejecting points
of the [USA PATRIOT Act]" because it infringes on "our" liberty.
He went on to say:
I take this really personal. I feel that my rights
and my freedoms are in jeopardy every day. I fear
who's looking over my shoulder whenever I do anything.
... There's a sense of fear by a lot of people in the
library; people are talking about what books they ...
can take home. This isn't the country that we are
wanting to protect, at least I don't think it is. I
think this Act make a mockery of the deaths of the
people on [9/11/01]. America in 2003 isn't what some
of those people would have given their lives for. ...
I hope that when this resolution is passed that
Alaska's representatives can make it sound strong
enough so that the federal government will hear it,
because I think our representatives in Alaska here are
standing up for the [U.S.] Constitution far stronger
than those cowards in D.C. Thank you.
Number 1253
ROGER SHANNON said: "I think you folks down there have done the
job very well for the rest of us. ... Thank you for coming
together on it."
Number 1340
JENNIFER RUDINGER, Executive Director, Alaska Civil Liberties
Union (AkCLU), thanked the committee for hearing HJR 22 so
quickly, and Representatives Guttenberg and Coghill for their
hard work and the bipartisan spirit they brought to "this
important resolution." She went on to say:
The bipartisanship that we're seeing in the House
mirrors what's happening all over the country and
throughout Alaska, where a broad, left-right coalition
has come together to stand up in defense of the Bill
of Rights. And we recognize [that] we do need
measures that actually keep us safe - but there has to
be some balancing - and that many provisions of the
[USA PATRIOT Act] go way too far, have nothing to do
with fighting terrorism, and infringe our liberties -
trade away our liberties, really - for a false sense
of security.
So we laud this resolution, and we laud the committee
for moving it quickly. And with that, I'll just add
that Congressman Don Young has agreed to introduce a
measure in Congress to begin to fix some of the more
onerous provisions of the [USA PATRIOT Act] - again,
it's part of a broad, left-right coalition supporting
that - and a strong resolution coming out of the
Alaska [State] Legislature would really arm him as he
prepares for that fight.
CHAIR McGUIRE, after ascertaining that no one else wished to
testify, closed public testimony on HJR 22.
Number 1397
CHAIR McGUIRE made a motion that the committee rescind its
action in adopting new Amendment 2. There being no objection,
it was so ordered.
Number 1414
CHAIR McGUIRE made a motion to adopt a third Amendment 2, on
page 2, line 26, insert ", without compelling justification".
There being no objection, the third Amendment 2 was adopted.
Number 1434
REPRESENTATIVE SAMUELS moved to report the proposed (CS) for HJR
22, Version 23-LS0924\D, Cook, 5/8/03, as amended, out of
committee [with individual recommendations and the accompanying
zero fiscal note].
REPRESENTATIVE OGG mentioned that Hawaii has a similar
resolution that contains a clause that "recognized this type of
thought." He noted that during World War II, Alaska was
occupied by foreign forces and thus its citizens experienced
loss of civil rights. He suggested that HJR 22 ought to
recognize that point.
REPRESENTATIVE COGHILL said that although Representative Ogg is
correct about what happened in World War II, it wasn't just
Alaskans that experienced a loss of civil rights. He remarked
that he did not want HJR 22 to become a "history lesson." "We
struggled hard on how to get the language that asserted ...,
with as much strength as possible, the need to protect our
liberties while still trying to say [that] we support the war on
terrorism," he added.
REPRESENTATIVE OGG, in response, read the portion of the
Hawaiian resolution to which he referred, and suggested that HJR
22 could use the same language and simply substitute "Alaska"
for "Hawaii". He opined that Alaska should join hands with
Hawaii on this point.
CHAIR McGUIRE indicated that she agreed with Representative
Coghill against adding such language.
REPRESENTATIVE GUTTENBERG indicated agreement as well.
Number 1650
REPRESENTATIVE SAMUELS again moved to report the proposed (CS)
for HJR 22, Version 23-LS0924\D, Cook, 5/8/03, as amended, out
of committee with individual recommendations [and the
accompanying zero fiscal note]. There being no objection, CSHJR
22(JUD) was reported from the House Judiciary Standing
Committee.
CONFIRMATION HEARINGS
Board of Governors of the Alaska Bar
Number 1662
CHAIR McGUIRE announced that the committee would next consider
the appointment of William A. Granger to the Board of Governors
of the Alaska Bar.
[Representative Gara, at the beginning of the meeting, had
indicated his support of Mr. Granger's appointment.]
Number 1685
WILLIAM A. GRANGER, Appointee, Board of Governors of the Alaska
Bar ("the Board of Governors"), said that he has served on the
Board of Governors for the last three years, and that it has
been a very valued public service. He indicated that he has
voiced public concern from a layman's point of view, and watched
and contributed to the process of continuing education,
grievance resolution, and the general wellbeing of the bar and
legal system at large. He also indicated that his particular
interest is in the area of immigration and pro bono work, and
that he serves as a trustee for the "Alaska Bar Foundation,"
which, he added, is the recipient of "IOLTA funds" - Interest on
Lawyer Trust Accounts. In conclusion, he said that he enjoys
the opportunity to be of service.
REPRESENTATIVE GARA relayed that he has gone before the Alaska
Bar Association and suggested that it change the rule requiring
attorneys that only do volunteer work to pay full "bar dues" of
approximately $500 a year, but the Alaska Bar Association turned
down this suggestion. He asked Mr. Granger to consider such a
change to the "bar rules," so that more people would be
encouraged to do pro bono work.
MR. GRANGER indicated that Representative Gara's suggestion
received a great deal of consideration and was not completely
"off the table."
CHAIR McGUIRE indicated that she and other members of the House
Judiciary Standing Committee supported Representative Gara's
suggestion.
MR. GRANGER said that he would pass that message along.
REPRESENTATIVE GRUENBERG said that he also supports "mandatory
CLE [continuing legal education]."
MR. GRANGER said that fundamentally, he too supports mandatory
CLE. However, he added, he is not sure that the [Alaska]
Supreme Court does.
REPRESENTATIVE GRUENBERG said he is glad that Mr. Granger is
willing to serve on the Board of Governors.
Number 1930
REPRESENTATIVE GRUENBERG made a motion to advance from committee
the nomination of William A Granger as appointee to the Board of
Governors of the Alaska Bar. There being no objection, the
confirmation was advanced from the House Judiciary Standing
Committee.
HB 244 - CRIMINAL LAW/SENTENCING/PROBATION/PAROLE
Number 1946
CHAIR McGUIRE announced that the next order of business would be
HOUSE BILL NO. 244, "An Act relating to the Code of Criminal
Procedure; relating to defenses, affirmative defenses, and
justifications to certain criminal acts; relating to rights of
prisoners after arrest; relating to discovery, immunity from
prosecution, notice of defenses, admissibility of certain
evidence, and right to representation in criminal proceedings;
relating to sentencing, probation, and discretionary parole;
amending Rule 16, Alaska Rules of Criminal Procedure, and Rules
404, 412, 609, and 803, Alaska Rules of Evidence; and providing
for an effective date." Chair McGuire indicated that the
committee would be considering amendments to HB 244.
Number 2014
CHAIR McGUIRE made a motion to adopt Amendment 1, which would
delete Sections 1-5 and which read [original punctuation
provided]:
Page 1, line 9 - Page 3, line 6:
Delete all material.
Renumber the following bill sections accordingly.
CHAIR McGUIRE said she is pondering, however, whether to keep
Section 1 in the bill. She noted that the Department of Law
(DOL) has provided testimony regarding making a heat of passion
defense an affirmative defense, and that she is inclined to
agree with that testimony.
Number 2063
CHAIR McGUIRE restated her motion such that Amendment 1, as
amended, would delete all material from page 2, line 1, to page
3, line 6 [Sections 2-5].
Number 2080
REPRESENTATIVE GARA objected, and said that he supports the
deletion of Section 1. He elaborated:
Heat of passion is a defense to a serious crime in, I
believe, almost every state. ... And so, really, the
question before us is, do we place it upon the
prosecution to prove this kind of case, or do we place
it upon the defendant. And let me give the members of
this committee an example, and I'll work from the
example. ... I know of case like this: Assume that
you witness somebody being raped; you witness ... a
member of your family being raped by somebody else
that you know. And I suppose assume that the three
people involved - the person being raped, the person
who is raping the victim, and then the person who
observes it - all know each other and are romantically
entwined. And you see this occur, and you go and you
try and stop it, and there is a weapons fight. And
the observer ends up killing the aggressor to protect
the rape victim.
I can envision a circumstance where the heat of
passion issue would come up, and in my view, depending
on the circumstances, probably the observer was
entitled to do what the observer did if, in the middle
of the fight, the observer's life was then threatened
and then, in order to protect himself and the victim,
the observer then killed the rapist. It seems that
the heat of passion defense should apply. It seems
that the person who ... killed the rapist maybe didn't
commit a crime. It seems like all of those elements,
if the prosecution is going to charge that person with
a crime, should be proven by the prosecution.
... I think in my example there are some circumstances
where a heat of passion defense would apply, and some
circumstances where it wouldn't. But it seems to me
that the point that applies to all these other
affirmative defenses applies here, which is, if you
didn't do anything illegal and the prosecution wishes
to charge you with doing something illegal, it should
be the prosecution's burden to prove beyond a
reasonable doubt, even on that element, that you did
something wrong. So, I think when we start relaxing
the burden on these affirmative defenses, we are
making it easier for people who have done nothing
illegal to be prosecuted and thrown in jail for very
long periods of time. So I think these cases should
be treated like any other criminal case.
REPRESENTATIVE GARA reiterated that he would prefer Amendment 1
to also include the deletion of Section 1.
CHAIR McGUIRE suggested that the committee first consider the
deletion of Sections 2-5, and then entertain the question of
whether to delete Section 1.
Number 2261
REPRESENTATIVE GRUENBERG offered his belief that Section 2
relates to Section 1. He suggested that Amendment 1, be amended
to delete only Sections 3-5: page 2, line 10 - page 3, line 6.
CHAIR McGUIRE agreed.
Number 2314
CHAIR McGUIRE restated the motion to adopt Amendment 1, as
amended, to delete all material on page 2, line 10 - page 3,
line 6. There being no objection, Amendment 1, as amended, was
adopted; thus Sections 3-5 were deleted.
Number 2329
REPRESENTATIVE GARA made a motion to adopt [Conceptual]
Amendment 2: delete all material on page 1, line 9, through
page 2, line 9.
Number 2347
REPRESENTATIVE GRUENBERG observed that [Conceptual] Amendment 2
would delete Sections 1 and 2.
CHAIR McGUIRE announced that Representative Samuels objected.
Number 2387
A roll call vote was taken. Representatives Ogg, Gara,
Gruenberg, and Anderson voted in favor of [Conceptual] Amendment
2. Representatives Holm, Samuels, and McGuire voted against it.
Therefore, [Conceptual] Amendment 2 was adopted by a vote of 4-
3.
Number 2400
CHAIR McGUIRE turned attention to [Amendment 3, proposed by
Representative Anderson, which, with original punctuation
provided, read]:
Page 3, line 11, after "prisoner" insert "or any
relative or friend of the prisoner"
TAPE 03-57, SIDE B
Number 2385
CHAIR McGUIRE observed that Amendment 3 addresses Section 6,
which pertains to a prisoner's rights after he/she has been read
the Miranda warning.
The committee took an at-ease from 2:14 p.m. to 2:15 p.m.
Number 2351
CHAIR McGUIRE stated that she'd heard a motion to adopt
Amendment 3.
Number 2349
REPRESENTATIVE SAMUELS objected.
REPRESENTATIVE ANDERSON explained that Amendment 3 deals with
Section 6 of the bill, which seeks to restrict a person's access
to an attorney. Although a prisoner has been read the Miranda
warning and advised of the right to seek counsel, his/her
relative or friend should be allowed to retain counsel on
his/her behalf. Representative Anderson said he supports
Amendment 3 because it has not been demonstrated that limiting a
prisoner's right to counsel is in any way good public policy.
REPRESENTATIVE SAMUELS argued:
It's not good public policy to get "Mirandized" twice
so we can just say, "You can't possibly speak to the
police unless you have an attorney there." And that's
not good public policy. The Miranda warning is to
tell them what their rights are; it doesn't
specifically give them any more rights, and in this
case, now you're trying to give the rights to somebody
else. You're jumping in the middle of the
investigation. The police have a right to investigate
the crime, and to "Mirandize" somebody twice does such
a disservice to the victims of the crime.
If you are a rape victim, and your person gets
arrested and they're "Mirandized" and they turn
Miranda down, and the police are questioning you, and
you've turned it down, you are advised what your
rights are, then we should not be going out of the way
to help any individual, whether you have a wealthy
family or you happen to have an in-law that saw you
get arrested. That's not fair, and it's not fair to
the victim. If we're going to be a level playing
field for everybody, we "Mirandize" them all, and
that's it. And we can get anecdotal on it; I know the
defense lawyers hated the anecdotes yesterday until
they start coming up with anecdotes that help them
out. But this is bad public policy; we're treating
people differently.
Number 2256
REPRESENTATIVE GARA relayed that he is considering offering an
amendment that would delete Section 6 altogether and retain
current law. He said:
I think that the debate about examples touches on this
issue, but sometimes doesn't exactly address what this
provision does. ... Representative Anderson's
amendment only addresses the right to get counsel
immediately after an arrest. We're not talking about
somebody who's been sitting in jail for a week and
changes his mind whether he wants an attorney. We're
talking about this very narrow window of time. So if
you look at page 3, line 8, the rights we're talking
about are the rights to [an] attorney, quote unquote,
"immediately after an arrest".
The reality is that some people are not sophisticated;
some people don't have like a direct hotline to their
own attorney. A lot of people don't have a direct
hotline to their own attorney. What happens in the
real world is, somebody calls and says, "Mom," or
somebody calls and says to their wife, "Please get me
an attorney," because they didn't dial their
attorney's number - they don't have an attorney. I
mean, how many people in this room have an attorney?
I don't have an attorney.
CHAIR McGUIRE remarked that Section 6 still allows a prisoner to
telephone or otherwise communicate with any relative or friend.
REPRESENTATIVE GARA agreed on that point. He pointed out,
however, that the reality is that there are many examples where
a person who is arrested will ask a relative or friend to retain
an attorney. He opined that in such instances, when the
relative or friend lets the arresting officers know that an
attorney has been retained for the prisoner, that should be
enough; the police should know, then, that they need to give the
prisoner access to that attorney. He expressed disbelief that
Section 6 actually addresses the perceived problem as relayed by
the administration, and suggested that although deleting Section
6 altogether may not address the perceived problem, Section 6 is
divorced from real-world situations. He opined that it is
appropriate to allow prisoners to have friends and family retain
an attorney; therefore, he added, he supports Amendment 3.
Number 2143
REPRESENTATIVE GRUENBERG said:
When a person is put in jail, possibly for the first
time, they may be very scared, certainly are in an
unfamiliar situation, probably aren't thinking very
clearly, may not fully realize - even though somebody
has said - that they have a right to an attorney, and
they don't probably know who the attorney is going to
be. But if an attorney shows up who's been retained
by the family, maybe a friend of the family, somebody
this person knows, that's going to be comforting to
the person.
Now, confessions are often used to convict people, and
they probably should be, but they can be problematic,
too, particularly if the person is young, maybe
intoxicated, maybe of low mental ability. And so an
attorney, maybe an ethical attorney, can be quite
helpful and ensure that the process is conducted ...
fairly. Admittedly, if you have a defense lawyer in
the process, it won't be as easy to convict people,
but the system is built on the cornerstone of
fairness. And regardless of who retains the attorney,
the person should have the right to make that choice.
And that's all this does.
REPRESENTATIVE SAMUELS surmised that as long as the person says
he/she wants to talk to an attorney, it won't matter who hires
the attorney. He opined that what Section 6 pertains to is a
defendant who has already turned down an attorney.
Number 2020
REPRESENTATIVE GARA indicated that he has a possible amendment
to Amendment 3, and that it consists of adding language
currently in statute. He suggested that on page 3, line 10, the
language be changed to read "(3) an immediate visit from an
attorney".
Number 1989
REPRESENTATIVE ANDERSON said he did not have a problem with that
amendment to Amendment 3.
Number 1973
CHAIR McGUIRE, hearing no objection, indicated that the
foregoing amendment to Amendment 3 was adopted.
Number 1967
A roll call vote was taken. Representatives Gara, Gruenberg,
Anderson, and Ogg voted in favor of Amendment 3, as amended.
Representatives Holm, Samuels, and McGuire voted against it.
Therefore, Amendment 3, as amended, was adopted by a vote of 4-
3.
The committee took an at-ease from 2:27 p.m. to 2:28 p.m.
Number 1925
REPRESENTATIVE ANDERSON made a motion to adopt Amendment 4,
which read [original punctuation provided]:
Page 3, line 15 - Page 4, line 1:
Delete all material.
Renumber sections accordingly.
REPRESENTATIVE ANDERSON explained that Amendment 4 would delete
Section 7, the provision pertaining to the admissibility of
prior convictions.
CHAIR McGUIRE objected.
REPRESENTATIVE ANDERSON offered his belief that the introduction
of prior convictions during a criminal trial is highly
prejudicial.
Number 1854
DEAN J. GUANELI, Chief Assistant Attorney General, Legal
Services Section-Juneau, Criminal Division, Department of Law
(DOL), said that introducing prior convictions is done in sexual
assault cases and domestic violence cases, but added that such
has not always been the case. What can be admitted in a trial
as evidence is determined by court rule, and a few years ago, he
explained, the legislature stepped in and changed the court
rules to allow for the admissibility of prior convictions in
sexual assault cases and domestic violence cases. He opined
that the legislature should do the same for DWI (driving while
intoxicated) cases because it would be in keeping with the
tougher DWI laws for repeat offenders that the legislature has
enacted.
Number 1766
BARBARA BRINK, Director, Public Defender Agency (PDA),
Department of Administration, said that what is troubling about
the process of allowing prior convictions to appear in the case
in chief is that the jury can be unduly swayed by evidence of
someone's past behavior. She relayed that the PDA continues to
believe that a person should be convicted based upon the
evidence of the present offense, not on his/her prior record.
She went on to say:
It seems like this is an attitude where we're just not
trusting the jury system. And the community, when
representatives are seated as a jury, have the ability
to decide the facts of the case and whether or not
they've been proven or not proven. I think we should
continue to leave that responsibility in the hands of
the jury. The State of Alaska is basically arguing
[that] the jury doesn't know what they're doing, so we
should be permitted to provide [the defendants']
history of their past in an effort to convict them on
this current offense. I don't think we should do
that. I think we should make the state prove a case
up, based on the evidence of that case alone. Then,
if there is a prior record, it can be submitted to the
jury in the same trial after the original finding of
guilt in order to enhance the penalties.
CHAIR McGUIRE offered, however, that allowing prior convictions
to be introduced in a current case is actually saying that the
jury is trusted, trusted to not be unduly influenced by that
information.
MR. GUANELI, in response to a question, relayed that currently,
Rule 404 of the Alaska Rules of Evidence says in part:
In a prosecution for a crime involving domestic
violence or of interfering with a report of a crime
involving domestic violence, evidence of other crimes
involving domestic violence by the defendant against
the same or another person or of interfering with a
report of a crime involving domestic violence is
admissible.
Number 1650
REPRESENTATIVE ANDERSON asked whether the issuance of a domestic
violence restraining order that is later retracted is something
that could be brought up in a current case.
MR. GUANELI indicated that Rule 404 addresses instances in which
a specific crime involving domestic violence has occurred,
rather than the issuance of a restraining order. In response to
another question, he relayed that Rule 404 specifically says "is
admissible", as opposed to within the discretion of the court.
However, under the Alaska Rules of Evidence, judges have a fair
amount of discretion; thus, he opined, if a particular piece of
evidence is extremely old or pertains to an unusual situation,
the judge could deem it irrelevant and instead weigh other
circumstances. In response to another question, he explained
that issuance of a protective order does not constitute a
conviction, although the facts that gave rise to its issuance
might be admissible as proof that an actual crime did occur.
REPRESENTATIVE HOLM asked whether information kept by law
enforcement agencies on a particular person would be admissible
under Section 7.
MR. GUANELI reiterated that although the underlying facts that
prompted the issuance of a protective order, if proven to have
occurred, might be admissible at the judge's discretion,
issuance of the protective order is not admissible. Section 7,
he explained, does not pertain to unproven, uncharged offenses;
Section 7 pertains to those crimes that have, as an element of
the offense, prior convictions. For example, felony drunk
driving, felony shoplifting, or instances in which a crime is
committed by a felon. In those types of cases, it must be
proven that the person has prior convictions or is a felon. In
response to another question he said that currently, in those
types of cases, there are two phases to the trial. The first
phase involves looking only at the current incident; then, if
the person is convicted of the crime, the second phase involves
notifying the jury of the those prior convictions, for example,
by being presented certified copies of those convictions or by
having those convictions stipulated. Currently, the jury is
prevented from knowing about those prior convictions during the
first phase of the trial.
Number 1318
REPRESENTATIVE GARA said:
There is a problem with Section 7, and that is that
the tradeoff is completely imbalanced. In order to
make it easier for the prosecution to prove the prior
elements in one proceeding rather than two, we are
making it much easier for the prosecution to convict
somebody of a new crime. So currently, what's really
the burden to the prosecution? ... In a ...
prosecution of somebody where the prosecution has to
prove this is your third DWI, you make the prosecution
prove that the person drove drunk; after you do that,
it takes ... really not very much time to reconvene
the jury and say, "Ladies and gentlemen of the jury,
here's the second part of the case; here are two
convictions for two prior DWIs." What's the defendant
going to say?
I mean, that part of the case is proven very easily,
so what is the burden we're trying to ... delete?
[There's] very little burden on the part of the
prosecution, right now, to do the second part of the
trial, where the prosecution just introduces the two
prior convictions and says, "Here they are." The
prosecution wins.
So, to save that burden, what are we doing? We're
taking away a very substantial right from the public.
The public has the right to be presumed innocent. And
the moment you go into trial with a shaky DWI case
against somebody, that you might not be able to prove
because, frankly, the person wasn't drunk, but then
tell the jury, "Hey, this [guy has] ... two prior
DWIs," all of a sudden, you make it that much easier
that you're going to convict somebody for a crime the
person didn't commit.
Number 1222
REPRESENTATIVE GARA continued:
And that's the purpose for the current rule. If you
allege a crime against somebody, prove it to the jury.
But don't prejudice the jury by saying ... "This guy's
done stuff like this in the past." It's a
longstanding rule, it's an important rule, and it fits
within the constitutional rubric that people should be
innocent until proven guilty. And I can't imagine
that under the current law, it's that hard for the
prosecution to prove the second part of the crime,
that there were prior convictions; just do it later
....
REPRESENTATIVE OGG said that he has problems with limiting the
defendant's ability to legally challenge the validity of a
previous conviction only to the right to counsel and to the
right to a jury trial. This appears to narrow what the
defendant can raise up as a defense, he added.
Number 1163
CHAIR McGUIRE proposed that Amendment 4 be amended such that all
conforming language to Section 7 throughout the bill would also
be deleted if Amendment 4, which deletes Section 7, is adopted.
[No objection was stated and this conceptual amendment to
Amendment 4 was treated as adopted.]
REPRESENTATIVES ANDERSON and GRUENBERG observed that this would
entail Sections 28 and 29.
Number 1114
A roll call vote was taken. Representatives Gara, Gruenberg,
Anderson, and Ogg voted in favor of Amendment 4, as amended.
Representatives Samuels, Holm, and McGuire voted against it.
Therefore, Amendment 4, as amended, was adopted by a vote of 4-
3.
Number 1073
CHAIR McGUIRE made a motion to adopt Amendment 5, which read
[original punctuation provided]:
Page 4, line 15 - Page 6, line 1:
Delete all material.
Page 8, lines 11-16:
Delete all material.
Renumber the following bill sections accordingly.
The committee took an at-ease from 2:43 p.m. to 2:44 p.m.
CHAIR McGUIRE noted that Amendment 5 would delete Sections 9-12
and 17, but would not affect Section 8. She remarked that it
was Ms. Brink's testimony from the bill's prior hearing that
persuaded her to keep Section 8 in the bill.
REPRESENTATIVE SAMUELS objected for the purpose of commenting:
"I agree with you, but I don't feel comfortable knowing enough
about it just after the one hearing to stand up and fight for
you." He then withdrew his objection to Amendment 5.
CHAIR McGUIRE mentioned that over the interim, the
administration might work some more on the issue of immunity and
perhaps propose a separate bill. She opined that the current
provisions in the bill relating to immunity constitute a
dramatic, substantive change - a constitutional change - and
said that at this point, she is not comfortable keeping those
provisions in HB 244.
MR. GUANELI acknowledged that the administration would continue
to work on this issue, adding that meanwhile, there may very
well be cases in which prosecutors won't be granting immunity
because they are uncomfortable granting immunity "in the dark."
REPRESENTATIVE GARA remarked that Section 8 appears to be an
accurate statement of transactional immunity, adding that he
appreciates the provision because it clarifies the law.
Number 0849
CHAIR McGUIRE asked whether there were any further objections to
Amendment 5. There being none, Amendment 5 was adopted.
CHAIR McGUIRE noted that she has no objection to Section 14,
which pertains to consecutive terms of imprisonment.
REPRESENTATIVE GARA mentioned that later he would be offering an
amendment to the provisions pertaining to consecutive terms of
imprisonment [Sections 13, 14, and 18-20].
Number 0793
CHAIR McGUIRE, after noting that she did not like Section 16,
made a motion to adopt Amendment 6, which read [original
punctuation provided]:
Page 8, lines 7-10:
Delete all material.
Renumber the following bill sections accordingly.
Number 0775
REPRESENTATIVE GRUENBERG objected for the purpose of discussion.
He said that Section 16 seemed to him to be a reasonable
amendment to current law because it encouraged those without a
defense to plead guilty.
REPRESENTATIVE GARA disagreed. He elaborated:
Currently, I believe that victims of sexual assault
receive short shrift, that their cases are plead down
to misdemeanor way too often, that violent crimes
against women are way too often charged as
misdemeanors when they're felonies. And ... I always
understand the interest in trying to efficiently
prosecute people - and I suppose this does this, it
encourages guilty pleas - but by reducing the criminal
sanction in this class of cases, it especially bothers
me because this is a class of cases where people are
underprosecuted in the first place.
REPRESENTATIVE GRUENBERG indicated that because he did not know
enough about the issue, he would not be [maintaining his
objection] to Amendment 6.
CHAIR McGUIRE relayed that she is offering Amendment 6 on the
basis of Ms. Hugonin's and Ms. Brink's testimony during a prior
hearing.
Number 0628
CHAIR McGUIRE asked whether there were any further objections to
[Amendment 6]. There being none, Amendment 6 was adopted.
CHAIR McGUIRE, after acknowledging that Sections 18-20 relate
back to Sections 13 and 14, mentioned that she favors Section
21, which is a direct court rule amendment. She indicated that
the testimony regarding victims, victims' families, expedience,
and considerable delays has engendered in her a belief that the
current system is broken. She posited that Section 21 will help
the situation and assist in providing an expedient outcome for
all parties.
Number 0555
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 7,
which read [original punctuation provided]:
Page 9, line 20, after "defense" delete the remainder
of line 20 through "defense" on line 22.
REPRESENTATIVE GRUENBERG said he is offering Amendment 7
because, currently, Section 21 takes away the court's discretion
whether to allow a particular defense if notice of it is not
given at least 7 days before trial. The specific defenses
listed include: alibi, justification, duress, entrapment, or
other statutory or affirmative defense. He pointed out that in
some cases, a defendant may not know about a key witness or a
key piece of information until right before trial. Therefore,
to absolutely prohibit the defendant from offering a defense
"for a reason like this" is clearly unconstitutional, he opined.
MR. GUANELI said that currently, notice of those defenses must
be provided 10 days prior to trial. Section 21 changes that to
30 days and builds in some sanctions including prohibiting the
assertion of the designated defense if notice is not given at
least 7 days before trial. He asserted that currently, it is a
defense tactic to not notify the prosecution of a defense until
the absolute last moment. He opined that if a defendant is
going to use a defense of alibi, justification, duress, or
entrapment, it is not a last-minute decision; the defendant
already knows what that defense will be, and thus there is no
reason to delay notice to the prosecution. In addition, he
explained, Rule 53 of the Alaska Rules of Criminal Procedure
allows a judge to relax the rules to prevent a manifest
injustice. So, for example, if there is a change of attorney at
the last minute and the new attorney wants to use a different
defense, that is the kind of thing that a judge could take into
consideration and thus relax the rules to allow for the new
defense.
Number 0290
REPRESENTATIVE GARA indicated that although there are times when
an attorney might give notice of a defense at the last minute in
order to gain a strategic advantage, there are also times when
it is simply that the attorney is overworked and is not able to
provide notice until the last minute. He said:
Here's the problem with what you're doing. If an
attorney does something wrong, the attorney should be
sanctioned. I have no problem with that. But you
shouldn't throw somebody in jail because their
attorney didn't follow the rules. That's a
longstanding rule in the public process; it says ...
punish the person who did the bad thing. So, I just
can't accept that if somebody hires a private
criminal-defense attorney or, especially, a public
defender who has a 150 cases that they're carrying,
and the ... [attorney] lets something slip through the
cracks, maybe intentionally, maybe not - it doesn't
really matter - that the consequences of that person's
conduct should be thrown on the person that we're
supposed to treat as innocent until proven guilty.
There's a disconnect.
So, I would have no problem saying that the
prosecution is entitled to a continuance of trial if
they're not given this information in time - that
would be wonderful, that is fine, [and] it's also the
current law - ... [and] if we want to make that
stronger to make sure the prosecution is always given
a continuance in these cases, that would be fine. But
to take the rights away from a defendant and to make
it easier to convict somebody - to take away their
defense, to take away their witnesses - because their
attorney had 150 cases they were working on and
rightly or wrongly didn't provide notice in time,
gosh, that's a big right we're taking away from
people.
REPRESENTATIVE OGG noted that although Mr. Guaneli had mentioned
some of the designated defenses as being ones that the defense
would know of before the last minute, Mr. Guaneli had not said
the same of, "or other statutory or affirmative defense", which
is also listed as a designated defense. Representative Ogg said
he could envision a scenario wherein such a defense is not
settled upon until the last minute.
REPRESENTATIVE GRUENBERG said:
It is not a question of whether you know you have the
defense. It's a question of whether you can prove it.
And these are affirmative defenses. What that means
is, even though it's a criminal case, the defendant
has the burden of persuasion by a preponderance of the
evidence, and the burden is on them because it's an
affirmative defense. This is not just a typical kind
of a defense; [they have to prove their case by a
preponderance of the evidence]. [The previously
bracketed portion was not on tape, but was taken from
the Gavel to Gavel recording on the Internet.]
TAPE 03-58, SIDE A
Number 0001
REPRESENTATIVE GRUENBERG continued:
And an alibi, for example, may involve proof of
another witness. And at the last minute, a witness
can come up. And Mr. Guaneli, I'm sure, knows that
this has occurred. I do; it has, in fact, occurred.
And it's the word "shall" that bothers me, and to put
that additional burden on the defendant, when it's his
burden anyway to prove this, I think that's wrong.
Number 0062
A roll call vote was taken. Representatives Gara, Gruenberg,
and Ogg voted in favor of Amendment 7. Representatives
Anderson, Holm, Samuels, and McGuire voted against it.
Therefore, Amendment 7 failed by a vote of 3-4.
The committee took an at-ease from 3:06 p.m. to 3:20.
Number 0179
REPRESENTATIVE GARA made a motion to adopt Amendment 8, a
handwritten amendment which read [original punctuation
provided]:
Delete p.7 line 26 - p.8 line 6.
CHAIR McGUIRE objected.
REPRESENTATIVE GARA, in support of Amendment 8, said:
Here we're addressing cases where we're in the
sentencing phase of the trial; the defendant has
already been convicted, and the defendant's sentence
may be increased if the defendant has a prior
conviction. ... Currently, under the law, a defendant
can show that a prior conviction wasn't valid or a
prior conviction was questionable. And so the ways a
prior conviction might be invalid or questionable
would be: A defendant comes from a state where they
didn't give him an interpreter, and the defendant can
show that he sat through trial with an overburdened
public defender in Washington, D.C., and then the
defendant would have to prove that [he] ... didn't
understand the trial or somehow wasn't given an
interpreter. That would be something that ... [the
state] should let [the defendant] ... try and prove,
if [the state is] ... going to try and show that a
prior conviction is [valid].
... Section 15 now ... limits the number of places
where your conviction was possibly improper and
doesn't let you address those circumstances. There is
no evidence, currently, that this is a problem that
needs to be fixed. There is no evidence, currently,
that defendants are in there proving, under bogus
claims, that their prior convictions were invalid. It
almost never happens. And there's been no proven
abuse by the courts in this area. So why are we
trying to fix this problem? If the general rule is,
you shouldn't count a prior conviction if it was
invalid, let the person come in and show it was
invalid. It's not going to happen too often, but just
let them do it.
REPRESENTATIVE GARA, in response to a question, explained:
By deleting Section 15, we leave in the current law.
The current law is that your prior convictions do
count. The current law says, though your prior
convictions count, the defendant can come in and show
the conviction was invalid .... They can't retry the
case, but they can [show] it was invalid for a
constitutional reason, that it either didn't occur or
that is was invalid for a major constitutional reason.
And the courts will listen to that. It's very rare
that they ever say, "Okay, I'm not going to count this
prior conviction." But, no, this would just leave the
current law in place.
Number 0443
MR. GUANELI, in defense of Section 15, offered an example:
Let's say that in 1997, someone was convicted of drunk
driving. They're convicted, they're sentenced, they
have 30 days to decide whether to appeal that
conviction. Once their 30 days are up, their appeal
rights have gone, but there is, under Alaska law - and
the laws ..., really, of most states - there is sort
of a second phase appeal; it's called post-conviction
relief, and that allows within a period of, I think,
two years that you ... can file an action in the court
and say, "That conviction was invalidly obtained," for
any one of the reasons that Representative Gara
mentioned.
But once that two-year -- and the legislature actually
had to go in and change the court rules to stop some
of the abuses that were occurring several years ago,
where convictions, many, many years ago, were being
relitigated. And the legislature set some time limits
on that. ... So, ... [if] convicted in 1997, by 1999,
under Alaska law, you've had your right to direct
appeal - appeal within 30 days - or, within two years,
your rights to post-conviction relief. By 1999, the
Alaska law is, that conviction is a matter of right,
it's a matter of record, and we are not going to allow
you to relitigate it.
MR. GUANELI continued:
Then let's say in 2000, the person gets another drunk
driving conviction, doesn't appeal that one either,
within 30 days, doesn't take post-conviction relief
from that, doesn't claim that it's invalid within the
two years. So, by 2000 he's got two drunk driving
convictions as a matter of record. Well, 2003 he gets
his third drunk driving arrest, all of a sudden he's
facing a felony, and all of a sudden what we hear is,
"Oh, those prior convictions [weren't] valid." In
essence, what he's trying to do is get a third bite at
the apple. ... He decided not to appeal those previous
convictions, or maybe he did appeal and maybe the
appeal was denied, but now he wants a third bite at
the apple.
Number 0572
And this often occurs years later, it occurs in felony
drunk driving situations, it occurs anytime there's an
enhanced sentencing provision, and Alaska law allows
the courts to look back any number of years to enhance
these sentences. And what we end up having to do, in
the context of a new case, is litigate things that
occurred sometimes many, many years in the past,
sometimes in another state, that the defendant had a
right to appeal at that time or sometime shortly after
that and decided not to, or did and was turned down.
And we simply want to stop these kinds of abuses.
MR. GUANELI concluded:
... In some senses, I will agree with Representative
Gara, it doesn't happen very often that the courts
will allow these challenges to be successful, but it
causes a lot of litigation, it causes a lot of
confusion in these cases, it delays the processing of
these cases, and it's simply an abuse that we think
ought to be stopped. And unless the defendant can
show that he was denied the right to counsel, or was
denied the right to a jury trial, that conviction that
occurred many, many years in the past that he had an
opportunity to litigate in the past, ought to be a
matter of record. The state ought to be able to rely
on it, the courts ought to be able to rely on it. And
that's this provision [in] Section 15.
REPRESENTATIVE GRUENBERG responded:
The defendant enjoys a number of constitutional
rights. Two of them are the right to counsel, under
the Sixth Amendment, and a right to a jury trial,
[under] I think the Sixth or Seventh Amendment
(indisc.). But he enjoys other constitutional rights
also, and the one that comes to mind is due process,
procedural due process. Let me give you an example of
that: let's say you have a judge who's on the take -
that may not come to light until later, but it would
certainly be a denial of due process - or a DNA
[deoxyribonucleic acid] situation, which we dealt with
earlier.
Number 0721
A due process right, if it's violated, is just as
important as a denial of the right to counsel or the
right to jury trial. I would feel more comfortable
if, instead of just listing two constitutional rights,
we would say a denial of their constitutional rights,
because I don't know, at this point, what
constitutional rights might have been violated. And
I'm asking Mr. Guaneli: would you, would the
administration, oppose us saying "denial of
constitutional rights".
MR. GUANELI replied:
The reason why there is the focus on right to jury
trial and right to counsel in this provision is
because those are the two constitutional rights that
have been recognized by the courts as really the
fundamental ones in our criminal justice system, and
without which the conviction is considered invalid.
When you start talking about due process and some of
these other rights that are not as clear-cut as these,
you end up in the situation of litigating almost
anything that the defendant wants to claim was a
violation of due process.
Due process simply means, "It wasn't fair, it wasn't
fair to me," ... and under that rubric, you could -
most attorneys could - probable squeeze just about
anything that happens in a criminal case under that.
So for that reason, we have focused on the two
provisions that the courts generally recognize as
invaliding a conviction; if you didn't have a right to
counsel or didn't have a jury trial, that conviction
[is] generally considered invalid, and that's what
we've focused on.
REPRESENTATIVE GRUENBERG asked Mr. Guaneli whether he could
think of any types of cases that would be equally well
recognized that maybe should be added. He elaborated, "I'm not
trying to open this up; I'm trying to make sure that there are
not classes of cases well recognized that we should maybe put on
the list too.
Number 0898
MR. GUANELI acknowledged that Representative Gruenberg's example
of a judge on the take could be such a case because the
conviction would have occurred on the basis of fraud. On the
other hand, Representative Gara's example of a person that
didn't have an interpreter, he surmised, is the type of case
that should have been appealed either then or within the two-
year time period for post-conviction relief. He posited that
because he has never encountered any allegations of a conviction
obtained by fraud, that is why it has not been included in
Section 15.
REPRESENTATIVE GARA responded:
See, that's the problem with Section 15. We have a
small class of cases where the prosecution believes
there is a problem, but they're taking away many more
rights than the rights that address the problem
they've identified. I would have no problem with ...
a section that addressed the situation Mr. Guaneli
mentioned, which is, in the case where somebody
doesn't ask for post-conviction relief, they can't
claim that ... their conviction was invalid when it
could have been corrected on appeal.
... I guess we could come up with a section of law
that addresses that circumstance. But instead we're
tossing out a defendant's rights where they didn't
have the right to an interpreter. We're tossing out
the defendant's rights because their attorney wouldn't
let them testify .... Believe it or not, some
attorneys ... think they know better than a client,
and in other states that has happened: attorneys have
told their clients they're not allowed to testify, and
they've been convicted.
In this state you're not allowed to do that as an
attorney; if a client wants to testify, they testify.
In other states, sometimes, a public defender with a
180 cases on their caseload assumes all their clients
are guilty and just doesn't let any of them testify.
That's an exaggeration, but it happens sometimes. And
that would be, I think, outrageous, not to be able to
consider that. So, I would be sympathetic to a
section that addressed the problem the prosecution has
identified. I'm not sympathetic to a section that ...
throws out many more rights than I think have been,
arguably, abused.
Number 1024
A roll call vote was taken. Representatives Gruenberg and Gara
voted in favor of Amendment 8. Representatives Ogg, Holm,
Samuels, and McGuire voted against it. Therefore, Amendment 8
failed by a vote of 2-4.
REPRESENTATIVE GARA asked for more information about Section 20.
MR. GUANELI said that the three subsections of current statute
that are being deleted via Section 20 of HB 244 are the current
laws pertaining to consecutive sentencing. He suggested that
upon a plain reading of those subsections of statute, one would
think that consecutive sentencing is mandated for everything.
However, the courts have not interpreted those subsections to
mean that; instead, they have been interpreted as a legislative
preference for consecutive sentencing. He indicated that
Section 20 is in place because HB 244 proposes to adopt more
comprehensive consecutive sentencing provisions.
REPRESENTATIVE GARA relayed that he would return to this issue
when he addresses his amendment pertaining to those consecutive
sentencing provisions.
Number 1115
REPRESENTATIVE GARA made a motion to adopt Amendment 9, a
handwritten amendment which read [original punctuation
provided]:
Delete p.9 line 8 - p.11 line 28
CHAIR McGUIRE indicated that Amendment 9 would delete Sections
21-23.
Number 1140
REPRESENTATIVE GARA, after acknowledging that Section 21 has
already been addressed, said that he would amend Amendment 9
such that it would instead delete all material from page 10,
line 5, through page 11, line 28, and thus have the effect of
deleting Section 23.
Number 1162
CHAIR McGUIRE objected.
MR. GUANELI, in response to a question, explained that
currently, notice of an expert witness must be given 30 days
before trial. He added that once one party discloses an expert
witness, the other party "has a certain period of time after
that."
MS. BRINK said that Mr. Guaneli's explanation is generally
correct, adding that under the current Alaska Rules of Criminal
Procedure Rule 16, the defense has the duty to disclose 30 days
prior to trial, and the prosecution has the duty to disclose 45
days prior to trial.
REPRESENTATIVE GARA sought confirmation that under Section 23,
one of the sanctions is that the court shall prohibit the
defense from introducing the witness.
MR. GUANELI confirmed this, adding that this provision pertains
to expert witnesses - psychiatrists, ballistics experts, et
cetera - but not eyewitnesses to the crime.
REPRESENTATIVE GARA said that he is offering Amendment 9 because
sometimes, in an effort to economize, the defense does not hire
expert witnesses until the last minute because the defense is
hoping to settle the case before it goes to trial. Section 23
will cause people to hire and provide notice of an expert
witness way in advance, just as a matter of caution. He added,
"Section 23 includes this draconian punishment that says you
don't get to use your expert witness at trial which could gut a
case." He opined that the proper remedy for not giving proper
notice is a continuance, adding that he would entertain such a
change.
CHAIR McGUIRE argued that the point of this provision is to
speed up the process for victims, rather than delaying it via
additional continuances.
REPRESENTATIVE GRUENBERG noted that according to language on
page 11, lines 7-14, it appears that the disclosure requirements
of Section 23 do not apply to "peace officers and other crime
investigators". In other words, those experts do not have to be
made available for a deposition or recorded interview.
MR. GUANELI confirmed this and said that the main thrust of
Section 23 is that when there are expert witnesses, those who
have not been directly involved in the investigation of a case,
they need to be disclosed if used at trial. The exception
stipulated on page 11, lines 7-14, however, pertains to "peace
officers and other crime investigators" who have directly
participated in the investigation.
Number 1490
MS. BRINK, addressing Section 23, said:
I do think this section is problematic in that --
frankly, it isn't that the defense attorney is
claiming that the state is using a police officer as
an expert witness, but rather that, in fact, the
prosecutor is trying to qualify the investigator as an
expert witness so [that] they are permitted to issue
an opinion and testify about their opinions [of] the
case to the jury. And so it doesn't seem to make a
whole lot of sense to me that the 45-day timeframe
should not apply to these witnesses as well. I mean
the defense needs to know, is this person just
testifying factually as to their observations, or are
they, in fact, being used as an expert witness. Are
they going to be permitted to give their opinions to
the jury? In those situations, I think if we're going
to be required to provide 45 days notice, it's fair to
require that of the state witnesses as well.
And one other observation. I can tell you that I
appreciate, Madame Chairman, your desire to have the
court system proceed efficiently and smoothly; I
certainly don't disagree with any of those goals. But
I have to tell you, in the regular processing of
misdemeanor cases in Anchorage, ... first we have an
arraignment where a person is charged with an offense
and then the next scheduled court hearing is a
pretrial conference. The conference is set up so it
forces the prosecutor and the defense attorney to meet
and talk about the case and try to settle it early and
get it resolved. There is very rarely 45 days between
the pretrial conference and then the trial date.
Number 1562
MS. BRINK concluded:
So all the impetus for the parties to settle the case
is focused on the pretrial conference, and if they
reach an impasse and then it's determined that this
case is, indeed, one of the very few that are going to
trial - because it's less than 10 percent of our cases
that go to trial - there are not 45 days remaining
'til the trial date. And so the 45-day rule is really
kind of problematic. What Representative Gara pointed
out about retaining experts -- we do try to discourage
hiring experts until we know it's one of those very
few cases that is going to trial, and so this
timeframe can be a problem for us. Thank you.
REPRESENTATIVE GRUENBERG said it sounds as if the problem really
arises if an officer is going to be designated as an expert. He
suggested changing the exception to say that unless someone is
designated as an expert, he/she is exempt from Section 23.
MR. GUANELI said he has no objection to doing so.
CHAIR McGUIRE agreed that that would be a good change.
REPRESENTATIVE GRUENBERG asked Representative Gara if he would
accept the aforementioned as a friendly amendment to Amendment
9, as amended.
REPRESENTATIVE GARA suggested, instead, taking up that issue
after Amendment 9, as amended, is dealt with. On the issue of
Amendment 9, as amended, he remarked that given the current
fiscal situation, the PDA is always going to be trying to
economize. Therefore, he added, "we can't have them economize,
have them not hire experts 'til the last minute, and then punish
clients when they try to economize."
MR. GUANELI, in response to a question, said that Section 23
provides a 45-day notice requirement for both the prosecution
and the defense. He acknowledged that Ms. Brink is correct in
that most cases are resolved before trial, but added that expert
witnesses are not generally used in misdemeanor cases. He
opined that most experienced defense attorneys and prosecutors
have a pretty good idea which cases are likely to settle. He
reiterated that the courts retain the ability to relax the rules
in the interest of justice.
Number 1770
A roll call vote was taken. Representatives Gara and Gruenberg
voted in favor of Amendment 9, as amended. Representatives Ogg,
Holm, Samuels, and McGuire voted against it. Therefore,
Amendment 9, as amended, failed by a vote of 2-4.
Number 1788
REPRESENTATIVE GRUENBERG [made a motion to adopt] Conceptual
Amendment 10: On page 11, line 11, delete "and" after the
semicolon. On page 11, line 12, before the period, insert ";
and (D) the prosecution has not designated the officer or
investigator as an expert witness". There being no objection,
Conceptual Amendment 10 was adopted.
Number 1921
REPRESENTATIVE GARA made a motion to adopt Amendment 11, a
handwritten amendment which read [original punctuation
provided]:
Delete
P.11 line 29 - p.12 line 13.
REPRESENTATIVE SAMUELS objected.
REPRESENTATIVE GARA said:
When the prosecution obtains illegal evidence, there
is a very strong rule in this country, and that is
that only under the most narrow circumstances can it
ever be used. In this circumstance, the prosecution
would be allowed to use it to impeach a witness, the
prosecution would be allowed to use illegal evidence
to impeach a defendant, and it in too large a
circumstance, I think, overrules the Miranda rule.
And I also think that it's constitutionally suspect.
So, I think one of our interests should be to have as
little of this bill come back to us two years from
now, because I don't want to see it again.
But I also see this as a big problem: this issue
addresses something that [is] a very complex area of
the law. The governor has thrown 26, 27, 28 different
sections of law at this committee and asked us to
decide them in a few couple-of-hour hearings. It's
not enough time. So, I'm asking members of this
committee to send a message to the governor's office.
If the governor wishes us to validly and responsibly
consider a bill, the governor's office should give us
one that is discrete enough and clear enough that we
can possibly and competently handle it in the amount
of time we have in a committee hearing, or a series of
committee hearings. This is not the right place to
address major constitutional issues, major issues of
evidence.
REPRESENTATIVE GARA continued:
This issue, if it were debated before the supreme
court, would require a lot of argument by learned
counsel. I don't feel that we have that here, and I
don't feel that any of the six of us who are remaining
here know this issue well enough that we could put
together five valid sentences. At the fifth sentence,
we would run out of knowledge; we wouldn't be able to
address it any further than that. So I ask you to
vote in favor of this Amendment, either because you
believe this section is a bad section or because you
believe that we don't have enough time to consider it.
I really do think this is a message we should send
back to the governor's office; they bit off way too
much in this crime bill.
Number 2022
MR. GUANELI, in support of keeping Section 24, said:
With respect to this particular provision, I think we
start from the proposition that this was a voluntary
statement - the person voluntarily gave this statement
- it was not a coerced statement. In Alaska, we know
exactly what is said during these police
interrogations because the supreme court has adopted a
rule that says all interviews must be taped. If you
don't tape record the interview -- and a lot of them
are actually videotaped, so you actually see the
interactions; so we know exactly what was said, we
know the kinds of pressures that were brought to bear,
and this is voluntary statement.
If there was some technical violation of Miranda, ...
suppose at some point the guy says, "Well, maybe I
really ought to talk to an attorney, gee, I don't
know," some courts will hold that those kinds of
equivocal statements about wanting to talk to an
attorney mean that you've got to stop questioning. ...
So there are some technical violations of Miranda.
And this envisions that there was a technical
violation of Miranda that was a voluntary statement
and then the person gets on the stand and lies and
says exactly the opposite of what he said before.
MR. GUANELI concluded:
And all this says is, if you're going to make a
voluntary statement on tape and it wasn't coerced, and
then you're going to get up and say the exact opposite
in court, we're going to be able to impeach you with
that statement. And it's simply a matter of, ... if
you're charged with murder and you got lucky and there
was a technical Miranda violation and your confession
was suppressed, you can get up on the stand and you
can lie with impunity, because the only thing you face
right now under current law is that that statement
could be later used in a prosecution for perjury.
And frankly, I don't know of any defendant who
wouldn't trade a murder conviction for a perjury
conviction. So this simply means that if you're going
to get on the stand and testify, we want truthful
testimony; we want juries to base their decisions on
truthful testimony. And I think this enhances that
goal that verdicts are going to based on truthful
testimony.
Number 2098
REPRESENTATIVE GRUENBERG asked if "this" is in accordance with
current U.S. Supreme Court law.
MR. GUANELI offered his belief that it is.
REPRESENTATIVE GRUENBERG asked whether the Alaska Supreme Court
has determined that it is in accord with the Alaska State
Constitution.
MR. GUANELI offered his belief that the Alaska Supreme Court has
not yet addressed this issue directly. He relayed, however,
that the "attorneys who do the appellate work for the state"
believe that "this" would withstand constitutional scrutiny.
REPRESENTATIVE GRUENBERG asked whether this issue has been
addressed in either a court of appeals or a superior court.
MR. GUANELI said he did not believe so.
REPRESENTATIVE GRUENBERG said he is developing a concern about
the inclusion of retroactivity provisions in bills, and then
turned attention to subsection (b) of Section 30 as an example.
He said that he would not object to this provision on one
condition: before HB 244 gets to the House floor, the
Department of Law provide, in writing, the answer to the
question of whether any Alaska court has addressed the issue of
whether "this" would violate the Alaska State Constitution. He
relayed that if such is not done, he would be offering a floor
amendment.
CHAIR McGUIRE said she agreed, adding that that is a reasonable
request.
MR. GUANELI agreed as well and said he would provide that
information.
Number 2200
MS. BRINK, on the issue of Amendment 11, which would delete
Section 24, said:
I don't believe any Alaska court has addressed this
issue, because under current Rule 412 [of the Alaska
Rules of Criminal Procedure], any evidence illegally
obtained was not admissible for this purpose. So if
trial judges were not admitting illegally obtained
evidence in trials, nobody had reason to appeal those
rulings because the evidence rule was being followed.
I would like to point out, though, that I'm not sure I
understand what Mr. Guaneli means by a, quote,
"technical violation of Miranda."
If a statement is taken in violation of Miranda, that
in fact is in violation of your right to remain silent
and your right to counsel. That is illegal under
Miranda. And, frankly, it just isn't that hard to
comply with Miranda. Since 1965, police officers have
known they have to read this little statement off the
card and get someone to agree to talk to them. So
while it's characterized as a technical violation, it
just isn't that hard to get legally obtained
statements. And illegally obtained statements should
not be used to promote convictions.
You have to look at [paragraph] (2) of this ...
[section] as well, because this addresses other
evidence illegally obtained, and then we're talking
about not just technical violations of Miranda, but
violations of the Fourth Amendment - your right to
privacy in your own home - [and] violations of the
Fifth Amendment - your right to remain silent. So
this is [a] very broad, sweeping change. It says
illegal evidence is now going to be admissible at
trial. And so this is a huge sea change in how we
have enforced people's individual constitutional
rights. Thank you, Madame Chair.
REPRESENTATIVE GRUENBERG expanded his request for more
information to include information regarding "subsection (b)".
MR. GUANELI agreed.
Number 2285
A roll call vote was taken. Representative Gara voted in favor
of Amendment 11. Representatives Holm, Samuels, Gruenberg, Ogg,
and McGuire voted against it. Therefore, Amendment 11 failed by
a vote of 1-5.
Number 2296
REPRESENTATIVE GARA made a motion to adopt Amendment 12, a
handwritten amendment which read [original punctuation
provided]:
Delete
P. 6 line 14 - p.7 line 25
P.8 line 17 - p.9 line 6.
[Discussion among members indicated that the intent of Amendment
12 is to delete Sections 14 and 18-19.]
REPRESENTATIVE GARA additionally relayed a desire to amend
Amendment 12 such that line 7 on page 9 be included.
[Therefore, Amendment 12, as amended, would also delete Section
20.
Number 2315
REPRESENTATIVE SAMUELS objected.
REPRESENTATIVE GARA said:
This is where we have a debate about Alaska's
sentencing structure in four minutes and decide
whether or not to change it. I'm not going to repeat
my argument about how this is just not a good way to
present legislation for a committee to decide ....
But I really would ask the members of this committee
if they completely understand the current law and
completely understand how this changes the current
law. And [if] you like it, then vote for it, but if
you don't completely understand either, this isn't the
time to pass a sentencing structure change like this.
Here are some things that I have figured out: ...
This is not a well thought-out sentencing structure
that the prosecution has offered - and I will say this
now so I don't have to say it in wrap up. ... It is a
very bad process for a group of prosecutors to get
together and decide how they want to change the law.
I would hope that on the sentencing issue, but [also]
on these other issues, maybe the prosecution would sit
down with learned members of the defense bar and come
up with a way that at least people have, from both
sides, considered to change the law, instead of coming
up with something that seems to be very one-sided and
not well thought out.
Here's why this one's not well thought out. Let me
give you an example of what we are going to do to
people if we adopt the sentencing structure that the
... administration has offered. Under current law,
almost all sentences for serious crimes are
consecutive; they already are. You just have to read
current law to see that. Under current law, ...
sentences already run consecutively except for a
narrow circumstance where the crimes are part of a
continuing episode - so they're a hybrid between ...
one crime and many crimes all at once - and then the
judge is given the discretion. The judges always
consider the seriousness of the crimes; they consider
the prior history of the defendant. ...
TAPE 03-58, SIDE B
Number 2402
REPRESENTATIVE GARA continued:
[I can give one example that I] hope will compel a
number of members of this committee to cast doubt on
this proposed sentencing scheme. Let's say you have
somebody with a shotgun, and he decides to go out in
the woods and have some fun but really wreak a little
bit of havoc irresponsibly. And he ends up shooting
his shotgun out into the woods because, well, he just
wants to shoot his shotgun out into the woods.
Inadvertently, he hits a group of ... [people] with
spray from his shotgun and seriously injures them.
And under the criminal code, a serious injury would be
a major flesh wound; it would be something ... like
that or worse. That would be first degree assault.
If the reckless person, the person with the shotgun,
ended up hitting one person, it's a 7-year presumptive
sentence. That seems appropriate. But he's hit five
people, and so all of a sudden we're sending this
person to jail for a 35-year presumptive sentence.
Well, I don't condone the conduct of this person who
went out into the woods and, though he thought he was
having fun, endangered the public stupidly. I don't
condone that at all. And I think maybe something more
than a 7-year sentence would be justified.
But a 35-year sentence? I'm not so sure. The courts
already have discretion in this area. And I think
we're going to sort of pass a sentencing scheme that
results in very many unintended consequences. So ...
I'd ask people to favor the amendment; I would ask
people that if they vote for this amendment, the
message they're sending to the administration is to
take this back to the drawing board and think it
through and maybe actually consult with people outside
of the prosecution office in coming up with a
sentencing scheme.
Number 2320
REPRESENTATIVE SAMUELS posed the example of a man with a hunting
rifle who shoots and kills three kids. He asked whether this
should result in the same penalty as for killing one kid.
REPRESENTATIVE GARA countered that currently, it doesn't result
in the same penalty.
MR. GUANELI responded:
This is a big bill. I apologize [that] it's a big
bill. I apologize that it was introduced late in the
session. I think it does impose a burden on the
committees. This particular provision is obviously
not well understood, because it doesn't do what
Representative Gara said it would do. What this
provision does -- [let me] first explain about current
law. In 1982 the legislature adopted the current
consecutive sentencing statutes, and if you read them,
they do appear to say [that] just about everything is
consecutive.
But ... there was a problem in drafting, and the
Alaska appellate courts have said ..., "That isn't
what it says, it may be what was intended and we
recognize that the legislature prefers there to be
consecutive sentencing, but that isn't the law." So
what this bill does is, it tries to address two kinds
of crimes for mandatory consecutive sentencing:
homicides and rapes or first degree sexual abuse of a
minor - in other words, penetration of a minor under
13. Everything else is essentially at the judge's
discretion. [For] the particular crime that
Representative Gara talked about, and that was first
degree assault, ... there is no provision for
mandatory consecutive sentencing under this bill.
MR. GUANELI went on to say:
The only thing that this bill says is that - and it
would be on page 7, starting at line 13, it's under
(F) there, it says, "some active term of imprisonment
of each additional crime, or each additional attempt
or solicitation, under AS 11.41.200 - [11.41.250]",
and 11.41.200 is first degree assault - what it says
is that the judge really ought to recognize that there
were separate victims and impose some additional time.
... It doesn't say how much; it can be one day. And
so the situation he suggested, the presumptive
sentence for first degree assault with a dangerous
instrument is 7 years, so 7 years and four days for
five victims presumably would be about the minimum.
Number 2219
With the other types of offenses, homicides - and that
really gets to Representative Samuels hypothetical,
where you ... kill three victims - there this bill
does impose some type of consecutive sentencing, but
it's really fairly modest. If you look, for example,
at ... the one case that really brought this to the
forefront, ... the drunk-driving murder of two Juneau
men a couple of years ago up north [and] serious
physical injury of another, Cindy [Cashen] ..., who is
head of the local MADD [Mothers Against Drunk Driving]
chapter, her father was one of the victims who was
killed. In that particular case, the judge ended up
... - for two victims [who] died and one [who] was
seriously and permanently injured - giving a sentence
that was barely more than the minimum for a single
death.
We think that's wrong. And what we propose is that
for those kinds of cases ... where there are homicides
or there are rapes, ... some additional period of
imprisonment be imposed consecutively. And in that
particular example, where it's two counts of second
degree murder, for the second count ... what we
propose is that the judge impose, as a mandatory
period of consecutive sentencing, at least the
mandatory minimum. So, ... if the law designates that
10 years is the mandatory minimum sentence for second
degree murder, and you've killed two people, then at
least for the second one you ought to get the minimum,
and that ought to be consecutive to whatever you got
on the first sentence.
MR. GUANELI also said:
... Frankly, that's a fairly modest provision. And
when you look at, for example, under (E) on page 7,
... line 8, and you talk about rapes, and let's say
someone is convicted of multiple rapes, it isn't just
the presumptive [terms] stacked on top of each other;
... in fact, for the extra rapes, you only get one-
quarter of the presumptive term. So if the
presumptive term is 8 years, if you commit two rapes,
that it would be an extra 2, so that would be 10
years; three rapes would be 12. This really is a
fairly modest provision.
Number 2132
Partly it was designed to give judges some guidelines
because they really don't have any right now - and,
frankly, the sentencing ..., on a lot of homicide
cases, ... is all over the board (indisc.) multiple
homicide cases - and this gives some legislative
guidance. At the same time, it was also designed to
not burden the Department of Corrections [DOC] with
unreasonably long sentences that would carry people
... in the prison beds for years and years and years.
So we tried to strike a balance; I think we did it
reasonably.
MS. BRINK, on the issue of the mandatory sentencing provisions,
said:
I guess I must respectfully disagree with Mr.
Guaneli's reading of the proposed ... [provisions].
If you look on page 7, lines 1-5, I think that
Representative Gara's example is right on point.
Assault in the first degree is a class A felony, and
this part of the bill requires that the presumptive
term be imposed for each additional crime that's a
class A felony. So I believe that Representative
Gara's example, (indisc.) 7 years to 35 years because
of the fortuitous circumstance of the numbers of
people involved, is correct. And that's my main
objection to [those provisions of] the bill. ... If
you take away the discretion from the judge and you
impose a formula, that can result in sentences that
are not commensurate with the level of conduct
involved. Thank you, Madame Chair.
CHAIR McGUIRE predicted that committee members might never agree
on this issue.
REPRESENTATIVE GARA, in conclusion, said:
Oddly enough, ... the truth is that there's a lesser
sentence in this bill introduced by the administration
for ... people who commit rapes than there is for
these other crimes ... The consecutive sentences for
people who commit rapes is only a quarter of the time
for each additional person. I think that's too
little. But on the other ones I think it's too much.
CHAIR McGUIRE suggested that before the bill gets to the House
floor, Representative Gara could work more on that issue.
REPRESENTATIVE GARA said he would be happy to work on something
that addressed just the consecutive sentencing for sexual
assault.
Number 2029
A roll call vote was taken. Representatives Gara and Gruenberg
voted in favor of Amendment 12, as amended. Representatives
Samuels, Anderson, Ogg, Holm, and McGuire voted against it.
Therefore, Amendment 12, as amended, failed by a vote of 2-5.
CHAIR McGUIRE said she did not disagree with Representative
Gara's comments.
Number 1999
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 13,
which would delete Section 26.
Number 1987
CHAIR McGUIRE objected.
REPRESENTATIVE GRUENBERG, in defense of Amendment 13, said:
My problem is, sometimes people who have claimed
they're victims of domestic violence later decline to
testify. And what this ... [section] will do, will be
to allow the prosecution to introduce their domestic
violence petition even though it was subsequently
dropped and it may have been as a result of an
argument. And the allegation, when we're talking
about a crime involving domestic violence, may have
been a simple assault based upon somebody shoving
somebody else, not even any serious violence.
... I've had this happen in my family-law practice:
in the middle of a divorce where people are seeking,
for example, to get immediate custody of a child on an
ex parte basis without even going [through] the normal
process of having a hearing on temporary custody, they
bootstrap themselves with a DV [domestic violence]
petition. And then they, in an attempt to leverage
themselves in the divorce, say they want to prosecute,
and ultimately go forward with the bluff until they
get to the criminal court door. And then they realize
their going to be hit with a perjury if they really
continue with this, and they decline to prosecute.
And the only thing the prosecution has left in good
faith is this report, and they could conceivably
prosecute based on this hearsay report. And the
person couldn't examine the spouse, and it could lead
to not only to a misdemeanor minor charge and a
conviction or even a plea, but that can have terrific
implications in the family court and on the custody of
the child. There are all kinds of exceptions in
hearsay already .... And I just, with due respect,
think this is really overbroad because I've seen it
used that way.
CHAIR McGUIRE noted that the excited-utterance exception has
already been debated quite a bit.
Number 1857
A roll call vote was taken. Representatives Gara, Gruenberg,
and Holm voted in favor of Amendment 13. Representatives
Anderson, Ogg, Samuels, and McGuire voted against it.
Therefore, Amendment 13 failed by a vote of 3-4.
Number 1835
CHAIR McGUIRE made a motion to adopt Conceptual Amendment 14,
"to renumber accordingly, to adopt any conforming amendments
necessary to meet with this committee's intent for sections
we've removed, and ... to amend the title to reflect the
provisions of the bill that are still left." There being no
objection, Conceptual Amendment 14 was adopted.
Number 1813
REPRESENTATIVE SAMUELS moved to report HB 244, as amended, out
of committee with individual recommendations and the
accompanying fiscal notes.
Number 1805
REPRESENTATIVE GARA objected.
Number 1785
A roll call vote was taken. Representatives Anderson, Ogg,
Holm, Samuels, and McGuire voted in favor of reporting HB 244,
as amended, from committee. Representatives Gara and Gruenberg
voted against it. Therefore, CSHB 244(JUD) was reported out of
the House Judiciary Standing Committee by a vote of 5-2.
HB 260 - IMMUNITY FOR PROVIDING FREE HEALTH CARE
Number 1754
CHAIR McGUIRE announced that the next order of business would be
HOUSE BILL NO. 260, "An Act relating to immunity for free health
care services provided by certain health care providers; and
providing for an effective date." [Before the committee was
CSHB 260(L&C); in members' packets was a proposed committee
substitute (CS) for HB 260, Version Q, 23-LS0823\Q, Ford,
5/8/03, and a proposed amendment to Version Q.]
Number 1728
JASON HARMON, N.D., Vice President, Alaska Association of
Naturopathic Physicians (AKANP), offered the AKANP's support of
HB 260, saying that it is an important bill for Alaska in the
sense that it is potentially going to open up health care in
rural communities by reducing some of the liabilities currently
faced by health care providers who wish to volunteer their
services.
Number 1673
REPRESENTATIVE PAUL SEATON, Alaska State Legislature, sponsor,
noted that naturopathic physicians and registered nurses have
been included in the definition of "health care provider" as
used in proposed AS 09.65.290.
DOCTOR HARMON posited that the concerns of the legislature and
health care providers align in the sense that both groups are
concerned about access to excellent health care and the aging of
the "medical population." He mentioned that other states have
made changes similar to what is being proposed via HB 260.
CHAIR McGUIRE noted the importance of looking beyond just the
urban centers when considering issues of health care.
Number 1586
MIKE HAUGAN, Executive Director, Alaska Physicians and Surgeons,
Inc., said simply that his organization represents approximately
170 physicians in Anchorage and strongly supports HB 260 and
[Amendment 1].
Number 1558
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 1,
which read [original punctuation provided]:
Delete page 3, line 4, and renumber accordingly.
CHAIR McGUIRE asked whether there were any objections to
adopting Amendment 1. There being none, Amendment 1 was
adopted.
Number 1535
REPRESENTATIVE SAMUELS moved to adopt the proposed (CS) to HB
260, Version 23-LS0823\Q, Ford, 5/8/03, as the work draft.
The committee took an at-ease from 4:29 p.m. to 4:31 p.m.
Number 1534
CHAIR McGUIRE asked whether there were any objections to the
motion. There being none, Version Q was before the committee.
Number 1529
REPRESENTATIVE GRUENBERG restated his motion to adopt Amendment
1. There being no objection, Amendment 1 was adopted.
Number 1515
REPRESENTATIVE OGG made a motion to adopt Conceptual Amendment
2, to add "direct-entry midwives" after "nurse midwife" on page
3, line 5.
CHAIR McGUIRE clarified that because Version Q was now before
the committee, Conceptual Amendment 2 would instead apply to
page 3, line 12.
REPRESENTATIVES GRUENBERG, HOLM, and SEATON pointed out,
however, that "certified direct-entry midwife" is already
included in Version Q, on lines 14-15 of page 3.
Number 1456
CHAIR McGUIRE indicated that Conceptual Amendment 2 was
withdrawn.
REPRESENTATIVE GARA indicated that he might be offering another
amendment depending on whether the issue raised in the letter
from the Alaska Nurses Association has been addressed yet.
REPRESENTATIVE SEATON relayed that Legislative Legal and
Research Services has researched that issue and concluded that
volunteer work done in emergency shelters and temporary trauma
units is already covered, under both a separate statute and HB
260.
Number 1361
PATRICIA SENNER, R.N., President, Alaska Nurses Association
(AaNA), relayed that the AaNA along with the Alaska chapter of
the American Red Cross, the [Division of Public Health, Nursing
Section], and the Municipality of Anchorage's health department
have recently established the Alaska Nurse Alert System. She
said that the AaNA is concerned about the "description of the
location of health services," specifically that temporary
emergency services are not clearly [included] in proposed AS
09.65.290(a)(3). Because attorneys might, in the future, argue
that somehow the services provided to their clients were not
meant to be covered by this bill, she remarked, the AaNP would
prefer that the inclusion of temporary emergency services be
clearly spelled out.
REPRESENTATIVE SEATON said that according to Legislative Legal
and Research Services, because those services would be provided
at facilities owned by a municipality, the stare, or the federal
government, they would be covered under HB 260. In addition, AS
09.65.091 addresses civil liability for responding to a
disaster. He offered, however, that he has no objection to
adding language that would further clarify this issue.
REPRESENTATIVE GARA noted that nonprofit facilities are also
addressed in the bill. He opined that such should cover a "Red
Cross unit." He asked Ms. Senner whether she is comforted by
the foregoing information.
MS. SENNER said yes, adding that it was the term "owned by" that
had her concerned that perhaps providing services from a tent
set up in the middle of a field would not be covered.
CHAIR McGUIRE and REPRESENTATIVE GARA indicated that it was
their belief and intention that such would be covered.
Number 1199
CHIP WAGONER, Lobbyist for Covenant House Alaska, said that his
client strongly supports HB 260. He said that Covenant House
Alaska had experiences wherein health care providers that wanted
to volunteer services to the organization had been unable to do
so because of malpractice liability. He noted that members
should have received a letter of support from Covenant House
Alaska.
CHAIR McGUIRE assured him that copies of that letter were
included in members' packets.
REPRESENTATIVE GRUENBERG asked Mr. Wagoner whether there were
any other category of people whom his client would like to see
included in HB 260
MR. WAGONER suggested that perhaps emergency medical technicians
(EMTs) ought to be included, but surmised that perhaps they are
already covered under other statutes.
CHAIR McGUIRE closed public testimony on HB 260. She then said
that Amendment 1 was offered and adopted because the language it
deleted had "absolutely nothing to do with the bill," and that
to have kept that language in as a political statement simply
would have been wrong.
Number 1099
REPRESENTATIVE HOLM moved to report the proposed (CS) for HB
260, Version 23-LS0823\Q, Ford, 5/8/03, as amended, out of
committee with individual recommendations and the accompanying
zero fiscal note. There being no objection, CSHB 260(JUD) was
reported from the House Judiciary Standing Committee.
HJR 9 - CONST AM: APPROPRIATION/SPENDING LIMIT
Number 0990
CHAIR McGUIRE announced that the final order of business would
be HOUSE JOINT RESOLUTION NO. 9, Proposing amendments to the
Constitution of the State of Alaska relating to an appropriation
limit and a spending limit. She noted that the version before
the committee was CSHJR 9(STA).
REPRESENTATIVE GARA indicated that he has a lot of questions
about this constitutional spending limit.
CHAIR McGUIRE predicted that the discussion on HJR 9 would be
thorough.
Number 0907
VIRGINIA BLAISDELL, Staff to Representative Bill Stoltze, Alaska
State Legislature, on behalf of Representative Stoltze, sponsor,
said that regardless of whether HJR 9 passes this session or
next, its constitutional amendment would not go on the ballot
until 2004. She acknowledged that adoption of the
constitutional amendment proposed by HJR 9 would be a serious
change to the Alaska Constitution; thus, she relayed, the
sponsor appreciates the committee taking the time to thoroughly
deliberate the resolution. She then turned attention to a
document she'd prepared for the committee that provides an
analysis of CSHJR 9(STA) and answers to commonly asked
questions.
MS. BLAISDELL, referring to that document, said:
The first question is, "[What's] the difference
between an appropriation and spending?" ...
Appropriation is the amount that you are allowed to
spend, and that's the legislative prerogative saying
the governor ... can spend up to a particular limit.
Spending is the cash part; spending is actually
writing the checks and promising financial commitment.
On page 3 it says, ["Doesn't Alaska already have a
constitutional appropriation and spending limit?"].
Yes. It's not working now. It has grown
exponentially faster than the state's use. Right now,
the constitutional appropriation/spending limit would
allow us about $6.4 billion in state funds. We're at
about $3.4 billion, so it's kind of an unrealistic
limit to ourselves.
REPRESENTATIVE GARA asked where the present spending limit is
located.
Number 0657
MS. BLAISDELL said it is in Article IX, Section 16, adding that
that's what HJR 9 would repeal and readopt with new language.
She went on to say:
We also have a statutory spending limit that most of
us have never taken the time to follow because it's
included with the statutory budget reserve fund, which
... most of think of [as] the constitutional budget
reserve fund. But it says, statutory budget reserve
fund and appropriation limit. It's not a cumulative
calculation, but it just adds inflation and population
growth. And that one we actually have over-
appropriated last year, in FY [fiscal year] 03, and
one other time in the late '80s. So we've actually
broken our own statutory spending limit. Most of the
time, we're [$80 million to $90 million] below. It
allows about a $250-million-a-year growth.
And then I have [some] pages that describe how this
appropriation limit is different from the existing
limit. The existing limit was developed before the
permanent fund dividends [PFDs], before ... most of
the state corporations were established and then
[became] financially successful. There were no GO
[general obligation] bonds. And at this point,
calculating that base year by which we grow the limit
is really up to interpretation, and you can get a wide
variety of how to calculate that starting year. The
existing appropriation limit is based on population
and inflation growth, sometimes as great as 13 percent
annually.
MS. BLAISDELL continued:
And when I looked back at probably 20 years' worth of
people trying to calculate that growth, I had as many
as eight different variations in the dollar amount in
one given year, depending on who was using which index
and which population figure. And what the statutory
... appropriation limit actually identified, you had
to use [the Department of Labor and Workforce
Development's] population growth, and you had to use
the Anchorage CPI [Consumer Price Index]. They tried
to correct that, but we've never really followed it.
It also required that one-third of all state
appropriations be spent on capital projects; the term
that's ... not incorrect but difficult there is that a
capital project can be anything that has a term date
that goes beyond one fiscal year.
Number 0502
And if it had said capital improvements, those are
more of our infrastructure - ... highways, buildings,
that kind of thing - but a capital project can be
anything that has a continued lapse date. So, for
example, is a long-term contract for software design
really a capital improvement? No, but I think the
intention there was, we needed more infrastructure in
[the] ... early '80s. [House Joint Resolution 9]
provides for a steady but limited appropriation growth
over time. ... [Subsection] (a), which is the first
[subsection], allows a 2-percent cumulative growth
based on a two-year prior budget. That comes to ...
about $66 million. If you look at it one year to the
next, it's a $33-million growth - $33 [million], $34
million - each year.
CHAIR McGUIRE asked what the rationale is behind 2 percent.
MS. BLAISDELL replied:
We looked at ... the rate of inflation, we looked at
population growth, and it was fairly sporadic. And
what was happening is that when we took a number of
years of appropriations and just said, ... level them
out and see if we're decreasing [or] increasing, [at]
about what percent ... over time, ... it was
approximately 2 percent. ... And depending on how you
wanted to calculate, what exclusions and what
inclusions, it was actually between 2 and 4 percent.
CHAIR McGUIRE asked whether any other states have a percentage
in their constitution and, if so, what that percentage is.
MS. BLAISDELL said that she contacted the National Conference of
State Legislatures (NCSL), and according to their 1996 document
on state tax and expenditure limits, all states with such limits
have an expenditure limit based on taxation; thus, those states
would not overtax their population groups in order to grow state
government, and the limits were put in effect because of
taxation. Therefore, no other state has anything that would
clearly equate to Alaska's scenario.
CHAIR McGUIRE observed, "Our scenario of handing out money when
we don't have it and not taxing anybody except corporations."
REPRESENTATIVE GARA, referring to what other states do, asked:
"So if they regulate theirs by trying to keep the growth in
taxes down, how much do they allow their growth in taxes to go
up? Do you know?"
Number 0296
MS. BLAISDELL, indicating that she was reading from a document,
replied:
Tax and expenditure limits are designed to curtail
growth in government spending by placing
constitutional or statutory restrictions on the amount
a government entity can spend or tax its citizens.
Limits may be imposed on both state and local
governments.
MS. BLAISDELL commented:
Only state limits, however, are discussed in this
report, and most of them required a supermajority
requirement - even up to three-fifths majority; voter
approval was on a number of them; and ... [one
referred to] 7.23 percent of personal income tax
without regard to sales tax. Some of these are
spending limited to growth of population and
inflation, requiring voter approval; some were
personal income growth; one was 98 percent of
estimated revenue. It's just all over the board, and
they [have] really chosen a variety of ways to
calculate it.
REPRESENTATIVE OGG referred to page 1, line 8, and asked: "Am I
clear in saying that ... this year, we would use the base year
[that] would be ... 2001? Or 2002?
MS. BLAISDELL replied that it would be 2002, since it would be
two years behind 2004.
Number 0169
REPRESENTATIVE OGG posed the following example:
"Let's say that last year, or in 2002, we had a budget
of $100 - just for simple numbers - and then two years
before we had a budget of $100. So this next year we
think we would like to grow our government a little
bit - and so we grow it to $102 dollars - next year,
because we need some increases in services and stuff,
and we would like to take advantage of growing another
2 percent, we couldn't.
MS. BLAISDELL said, "That's correct.
REPRESENTATIVE OGG surmised:
So ... we would have to maintain that. And then,
should we go into a period where, for some reason, we
wanted to decrease the size of government or the
amount of appropriations for some anomaly, you go down
10 percent, that having gone down that 10 percent in
every other year, just because [that] was an anomaly,
now ... you would have pegged in a drop [of] 10
percent, even though it may not have been realistic.
MS. BLAISDELL replied: "It would be 2 percent of 10 percent.
But, eventually, if you just kept going like that, you could end
up with little, small spikes on the graph."
REPRESENTATIVE OGG surmised:
So, actually, if the government, [if] you wanted it to
proceed along in a steady fashion if it wanted to,
under the way this is written, you could actually end
up going like this, which is something you're trying
to avoid. Would it not be better to just say [it]
should not exceed 2 percent of the preceding [fiscal]
year? Is there a reason why you didn't go that way?
TAPE 03-59, SIDE A
Number 0001
MS. BLAISDELL replied that such could not be done because of
appropriations that occur late in the year, for example,
emergency appropriations or adjustments. A fiscal year really
isn't finalized until June 30th, the day before the day the next
budget would start. She posited that the legislature wouldn't
want to adjust its appropriation bills on a daily basis because
of other appropriation changes.
REPRESENTATIVE OGG remarked:
My point is, ... if you're putting this into the
constitution, you have to start somewhere. So it's
enshrined on day one. That's the two preceding years
right there, the ones that have gone by, perhaps the
one that you're in. And while it goes in, you decide,
"Well, heck, I'm going to take advantage of it all -
raise it up," and you could increase that, and so you
could start this gyration you couldn't get out of for
quite some time. But once you set it in, even if you
did the preceding fiscal year, that would set your
trigger. So even ... if you have supplemental
appropriations, they couldn't exceed that 2 percent.
MS. BLAISDELL said, "That's true."
REPRESENTATIVE OGG remarked, then, that he didn't see the
reasoning for going back two years.
REPRESENTATIVE SAMUELS, however, referring to a previous
meeting's discussion involving percentage of market value, noted
that the current year had to be skipped "for the same reason
..., because you don't know what you're going to spend this year
until you get the supplemental."
REPRESENTATIVE OGG pointed out, though, that HJR 9 "isn't doing
a running average; this is setting yourself to a year, two
years, preceding."
REPRESENTATIVE HOLM said:
In essence, it's going act like a tax cap, or a
revenue cap if you will. That works well at the
Fairbanks North Star Borough - worked well in all the
areas that I know where it's being worked. It
certainly wouldn't ... [become] a problem. If we had
an emergency or something [of] that order, that's a
different issue; ... we're talking about just the
appropriations. ... I was going to ask [Ms. Blaisdell]
... to talk about the difference between enacted and
appropriated, because ... it deals somewhat with this
idea of setting a limit of growth.
Number 0203
MS. BLAISDELL responded:
Actually, when you get to the portion of the
[resolution] that says that the governor will restrict
spending and reduce appropriations by line item veto,
the reason that that came up is because, typically, at
the end of a legislative session, Legislative Finance
[Division] and OMB [Office of Management & Budget]
will calculate how much money has been enacted for
that year. And that comes out somewhere in May,
whenever the legislature passes those [budget] bills
and after the governor signs them. We take that
enacted number. By the time you get to July 1,
there's a significant difference because the agencies
then put a value to "language appropriations" that had
no monetary accountability at the time [of] passing
the [budget bills].
And so, for instance, the example I gave in [the House
State Affairs Standing Committee] yesterday was that
for FY 03, there is approximately a [$90 million]
increase from the enacted number of what the
legislature believed they passed, ... by the time it
[came] into effect on July 1st. And that had to do
with language appropriations, primarily. ... The
[portion] of the [resolution] that would address that
is [subsection] (c) that says if appropriations for a
fiscal year exceed the amount that may be appropriated
under this Act, the governor shall reduce expenditures
by line item veto to avoid spending more than the
amount that was appropriated.
MS. BLAISDELL concluded that the governor would have to choose
where to use a line item veto to keep it under the appropriation
limit.
Number 0342
REPRESENTATIVE GARA remarked:
We have a tax cap in Anchorage too; it tends to work,
except there's one problem with it that ... a lot of
the folks are ... silent about because they would be
grilled if they talked about it. Our tax cap, the way
it works in Anchorage, links your expenditure rate to
last year's rate, very strictly. So in Anchorage, one
year we received a big, unforeseen amount of cash, and
the mayor said, "Gosh, we have all this extra money,
we can reduce your taxes this year." ... But the next
year we didn't have that extra money and we couldn't
bring ... our spending level back to where it was two
years ago.
And of course that was linked to the taxed amount, and
this is linked to the spending amount. So, let's say
one year, for example, we just have so much less in
the way of maintenance costs, and we say, "Well,
shoot, we don't have to spend last year's amount of
money on maintenance costs, we don't have to spend
last year's amount of money on a couple of things
because this year things look okay." Will a reduction
in one year have a ripple effect and require ... us to
base our budget ... on that reduced budget in the
future? So we couldn't get back to the [prior year's]
spending level? Or is there a way to ...
MS. BLAISDELL interjected to respond:
It's similar to Representative Ogg's question.
There's two approaches, probably, to resolve a spike
in your ... "stability growth line." First of all, 2
percent from two years prior is a pretty conservative
amount of growth. I would imagine that that would
typically be appropriated. That's why the next
[portion] of the bill says [that] with a three-
quarters vote, you can add an additional 2 percent.
Still conservative, controls the growth, but gives you
a little bit to bounce above that, that is not
included in that cumulative growth factor; it gets
excluded later.
So, let's say you have a 2 percent accumulative
growth: the other thing that a legislature can do is,
if they do not want to see a downward spike, they can
always appropriate the maximum first 2 percent, and
you keep that constant line. It does not mean the
governor has to spend it; the governor can spend less
than that. So, that would be more of his choice of
saying, "This agency is going to have a severe
reduction." The legislature can choose to keep their
appropriation line consistent.
Number 0551
Your situation with the tax issue, I'm not sure why it
said that you can't ... build the tax back in or
increase it again, but to me that sounds more like a
revenue issue. This is strictly appropriation, it has
nothing to do with how much money are we going to
collect, and it's only one side of a balanced budget.
REPRESENTATIVE SAMUELS remarked that Anchorage has both a tax
cap and a spending cap, adding, "you never hear about one
because you never can generate enough revenue."
MS. BLAISDELL, returning to the document she'd prepared, said:
This chart right here gives you a quick view of the
last couple of years, where it ... was very spiky, and
then a projected ... 2-percent growth. And what I did
was I wrote out FY 01 to FY 04 and showed you
significant increases and decreases, approximately
$200-million fluctuation in the last three years. If
you had done just the 2-percent growth factor starting
with the same four years, ... for FY 04, [it] would be
about [a] $30-million increase, rather than having
that huge $100-million cut in [FY] 03. You still show
a consistent increase, it's just managing the money a
little bit differently.
Following that ..., I restate the exemptions and give
a vary brief ... lay description of how the exemption
works. There have been a lot of questions about how
does Alaska's government grow ... fast enough to
accommodate and attract future economic growth. I
gave a couple of examples on how we can grow
economics. I would say probably the strongest example
would be through bonding-type issues, [to] help get
their infrastructure built up. If it doesn't work,
under the [House State Affairs Standing Committee]
version, you would have to go through this process
again and reintroduce a new "constitutional spending
limit" bill.
Number 0698
MS. BLAISDELL continued:
And then I said, now that I understand the
appropriation side, how does the spending side work?
And basically, the governor can line item [veto] to
keep us within the appropriation level, ... and the
governor is instructed specifically to not overspend
and put the legislature in a position of having to
break their own appropriation limit. And, yes, the
governor can spend less than what was appropriated;
it's just like not pushing your credit card limit to
the end, every single month.
... The other question I got was what constitutes a
disaster, and I could only find three provisions that
really describe what a disaster was. And this is one
thing that is an excluded provision in here, and so
there are a number of scenarios where a governor could
increase spending above the appropriation limit. And
that gives you an overview of [HJR 9].
[HJR 9 was held over.]
ADJOURNMENT
Number 0758
The House Judiciary Standing Committee was recessed at 5:10 p.m.
to a call of the chair. [The meeting never was reconvened.]
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