Legislature(1997 - 1998)
04/27/1998 09:10 AM Senate FIN
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
MINUTES SENATE FINANCE COMMITTEE 27 April, 1998 9:10 a.m. TAPES SFC 98 # 144, Side A (000-589) Side B (589-033) CALL TO ORDER Senator Bert Sharp, Co-chair, convened the meeting at approximately 9:10 a.m. PRESENT In addition to Co-chairman Sharp, Senators Pearce, Donley, Adams, Parnell and Phillips were present when the meeting was convened. Senator Torgerson arrived shortly thereafter. Also Attending: Representative IVAN IVAN; Representative GARY DAVIS; CYNTHIA COOPER, Deputy Attorney General, Criminal Division, Department of Law; CATHERINE REARDON, Director, Division of Occupational Licensing, Department of Commerce and Economic Development; BRUCE RICHARDS, Program Coordinator, Office of the Commissioner, Department of Corrections; ELMER LINDSTROM, Special Assistant, Office of the Commissioner, Department of Health and Social Services; JANE ANDRIIN, Counsel on Domestic Violence and Sexual Assault; ANN HENRY, American Counselors Association of Alaska; MIKE GREANY, Director, Division of Legislative Finance and aides to committee members and other members of the Legislature. via Teleconference: From Anchorage: BLAIR MCCUNE, Deputy Director, Public Defender Agency, Department of Administration; From Fairbanks: DR. ALLAN MORATTI, Professor of Counseling, University of Alaska-Fairbanks SUMMARY INFORMATION Co-Chair Sharp announced that the committee would take up bills in the order listed on the agenda with the exception of SB 357, which would be held because of work being done with the Legislative Finance Division. Another bill that wouldn't be heard at this meeting was HB 370. That was because a new CS had been drafted and Co-Chair Sharp requested that his staff work with the sponsor to ensure the CS was acceptable. The bill would be brought before the committee as soon as the sponsor approved the CS. CS FOR SENATE BILL NO. 216(JUD) "An Act providing for the civil commitment of sexually violent predators." Co-Chair Sharp invited BILL STOLTZ, staff to the sponsor, Senator Rick Halford, to come to the table and speak to the bill. Mr. Stoltz introduced himself and testified as follows: "Thank you for bringing [SB] 216 up today. This legislation would provide for civil commitment of sexually violent predators. This bill was heard fairly extensively in the Senate Judiciary Committee. I think we had three hearings there with Senator Parnell and Senator Pearce are members. So they're fairly familiar with the bill by now." "This SB 216 which we started drafting last fall subsequent to a Supreme Court decision - the Hendricks decision, which allowed states to proceed with this civil commitment procedure." "In our finding section of SB 216, we identify these types of individuals as having anti-social personality features that are not amenable to existing mental illness treatment methods. And those features render them likely to engage in sexually violent behavior and they have a very high likelihood of repeating the same type of violent sexual acts." "The main purpose of this legislation is to halt the stream of victims for at least this most egregious offender. There's a substantial likelihood they're going to repeat again. By simply containing them, confining them, we at least protect a class of victims that this person would have - would have offended against." "Through a careful drafting process, we've made quite a bit of this bill discretionary for the department so that they can enact as they - in cases that they determine they have the best chance of proceeding with. The main purpose is to give our prosecutor another tool to address this type of offender. Senator Halford's feeling you don't use every tool for every job and this would be used only sparingly by our - because of the extreme cost of this type of procedure. I think - I believe Ms. Cooper has prepared a chart and she's would be able to go through the detailed procedure of this process, which is fairly extensive. It's not a process that Senator Halford takes lightly nor would the prosecutors take lightly as you can see from the - from this complicated process required. And I'll close here Mr. Chairman." Senator Parnell felt it was useful to go through the process briefly. He summarized that the attorney general would file a petition in the Superior Court alleging that a person was a sexually violent predator. He wanted to know if the assumption was that this would apply in situations where the prison sentence was about to expire or could the petition be filed for people outside of the prison system. Mr. Stoltz responded that the assumption was the bill would be applied to people who were currently in prison and nearing the release process. Senator Parnell continued outlining the process. After the attorney general filed the petition alleging the person was a sexually violent predator and assuming the matter went to trial, the court or jury would determine beyond a reasonable doubt, whether the person was a sexually violent predator. He wanted to know if "sexually violent predator" was defined in the bill. Mr. Stoltz affirmed that it was defined. Senator Parnell located the language in the bill that gave the definition and read it into the record. Page 9 line 21, "sexually violent predator means a person who has been convicted of a sexually violent offence, [undecipherable] committed a sexually violent offence as a juvenile, charged with a sexually violent offence [undecipherable]." He noted the description was very detailed. Once the jury or court had determined beyond a reasonable doubt that the person met the definition, Senator Parnell continued reading from the bill, "the department then shall confine a person who's been ordered committed under this section in a secure mental health facility." Senator Parnell asked where these people would be incarcerated. Mr. Stoltz said the initial plan was to send these people Outside until it was determined how many people the state would have and what type of facility was best suited to meet the need. Rather than try to develop a facility before it was known what features were needed and how many inmates it had to accommodate, Mr. Stoltz felt it made better sense to send these prisoners to an established facility in another state. Senator Parnell noted that the fiscal note estimated costs based on approximately four inmates being committed annually. Mr. Stoltz responded that was the department's [Department of Corrections?] assumption, but that Senator Halford didn't think there would be that many per year. He suggested the representative here from the Department of Law could give an estimate of how many they believed would be committed annually under this program. There were no further questions of the sponsor's representative and Co-Chair Sharp called upon CYNTHIA COOPER, Deputy Attorney General in the Criminal Division of the DOL, to testify. She requested representatives from the Department of Corrections and the Department of Health and Social Services accompany her since they were also involved in the process of this legislation. Co-Chair Sharp granted the request. Ms. Cooper began her presentation as follows: "We're here today to talk about civil commitment of sexual predators. This is an issue that society's been dealing with for about the past half century. States began enacting legislation to deal with what we now call sexually violent predators starting back in the 1920's. By the late 1960's, over half the states had statutes involving sexual predators but many of those states repealed their statutes by 1990." "There are three different models, which I'd just like to mention briefly. There's the sexual pathology model, in which the state's chose between criminal prosecution and civil commitment. Illinois enacted such a statute in 1938 and that was found constitutional in that's basically how Illinois deals with it." "The second model is expanded civil commitment, in which the state, such as New Jersey, expands the definition of civil commitment and covers sexual predators under a civil commitment statute along with other persons who are mentally ill." "The third model is what's often referred to as the 'post release' commitment. And this is a combination of criminal prosecution generally and civil commitment, which follows. Examples of states that have these kinds of statutes are Arizona, California, Kansas, Washington and Wisconsin. This is the type of statute that was upheld last year by the United States Supreme Court in Kansas vs. Hendricks and is also the model that SB 216 follows." "The bill is essentially an effort to protect the public against people who are sexually violent and prey on women and children. This is a reasonable way to address the problem." "The DOL has some constitutional concerns about the bill, which I would just like to briefly mention. And that is, although the United States Supreme Court upheld the Kansas statute under the federal constitution and the DOL is fairly confident that this statute would pass federal constitutional muster, there's no guarantee that the state courts would uphold it. I'm sure as many of you are aware, the Alaska Supreme Court has struck down a number of statutes under state constitutional provisions such as reciprocal discovery, derivative use immunity and things like that. So, while we have worked with the sponsor to at least make our best efforts at getting a bill that we are willing to defend and we hope will withstand constitutional scrutiny under the state constitution, there are still several concerns." Senator Parnell interjected a question about the overturning of the reciprocal discovery statute and how it related to the federal court upholding the Kansas statute. He thought the reciprocal discovery statute was overturned because it was felt to violate rights against self-incrimination. He said the courts determined that right was more expansive under Alaska's constitution than in other states. He wanted to know what rights were interpreted in this legislation that the Alaska Supreme Court would hold as being more expansive under the state constitution than other states. Ms. Cooper responded telling the committee that there were three she was most concerned about. One was due process, which in a number of contexts, Stephan vs. State for example, where the Alaska Supreme Court interpreted our due process clause more broadly than the federal constitution to require law enforcement officials to tape record custodial interrogations in place of detention. She mentioned there were a number of other contexts in which the state Supreme Court interpreted the due process clause more broadly." Co-Chair Sharp interrupted asked which case she was referring to, and she reiterated Stephan vs. State and offered to provide citations to the committee. She continued with her testimony: "The other concern is the ex post facto clause. Whether this would be considered punishment for a past offense for which the individual has been - has committed prior to the effective date of the act." Senator Parnell asked if the Kansas case dealt with that issue. Ms. Cooper replied that under the federal constitution yes, these were all issues that the federal court dealt with. Senator Parnell wanted to know if the Alaska Supreme Court had ever expanded the ex post facto clause. Not yet, according to Ms. Cooper. She said in State vs. Creekpaum the defense asked the Supreme Court to do so, but they did not. However, she didn't want to say that the court would never do so. Senator Donley asked if that case was decided before the court of appeals was established. Ms. Cooper said the case was actually decided by the court of appeals in the 1980's. The case dealt with the statute of limitations for sexual offenses of a minor. She continued: "Then our third concern is double jeopardy, which is if it's considered punishment for the purposes - they've already spent time in jail and this would be punishing them a second time. And the courts have interpreted double jeopardy more broadly particularly in the sentencing context of that - and that case is Sonnier and that was back in the seventies by the Alaska Supreme Court but we do have..." She was asked by the committee to spell Sonnier. She did so and again offered to provide citations later to the committee. Senator Parnell wondered if the intent in passage of the bill was to protect public safety would that still be considered punishment. Ms. Cooper responded: "It's possible that it could be construed as such depending, I think, on what type of facility the individuals are housed in - whether they're receiving treatment. One of the concerns is [undecipherable] the United States Supreme Court had in Kansas vs. Hendricks was whether or not these individuals were being treated. And I think if you're providing a treatment regime then we're certainly more likely to have it interpreted as a treatment modality in that - and that would certainly increase the chances of it being construed not as punishment." "We're dealing now with the double jeopardy issue though in the sex offender registration context. And there are some courts in the nation who are kind of interpreting it as possibly double jeopardy. We're still litigating it here in the state courts, but that's certainly one argument of whether that's considered punishment or not." Senator Parnell noted that the sponsor was assuming that under this bill, the sexual predators would be sent out of state to a mental health facility. He referred to Washington State which had their mental health facilities located inside the prison. He wanted to if that Alaska sent its sexually violent criminals to a straight mental health facility, would they be less likely to run afoul with the double jeopardy argument. Ms. Cooper responded: "I think so because you - well, number one I think you have to treat them or keep them separate from the prison population. In Washington they have sort of a separate wing or whatever. I mean, it's on the grounds but it's separated. And what I think is real important here is to have them separated both from other civil committees under Title 47 and separate from a prison population. But if they're receiving treatment then certainly I think we have a better chance. But I can't sit here and tell you that it will survive scrutiny." Senator Parnell wanted Ms. Cooper to explain the due process concern. Her explanation was as follows: "Due process concern is the confinement basically would not be justified. You'd be depriving them of their liberty without sufficient justification." Senator Parnell interrupted, asking if the argument of public safety could be used to defend against double jeopardy. Ms. Cooper said it may or may not, but would certainly be the position the DOL would take in defending the statute. Senator Parnell asked what other public policy reasons could be used besides public safety. Ms. Cooper stated that protecting the public from a sexually violent predator was the most compelling reason. Senator Donley entered the conversation, saying he could think of another argument. Co-Chair Sharp directed Ms. Cooper to continue her statement. She continued, saying: "What I'd like to do now is pass out a sort of 13 step procedure here in which we explain what happens at various steps of the procedure and which agencies are involved in kind of just a brief outline of what they do." "What I've done is I've broken it out into three phases, the screening phase, the court proceedings and then the appeal and annual review. What's important I think to note first is, before we even get to the screening phase... that there's a lot of work that needs to be done on developing screening criteria and developing risk factors in that. We've been in contact with other states who have similar statutes in that in terms of deciding what factors will DOC and DHSS look at in determining who to refer to the DOL for possible civil commitment." "And once those screening criteria and risk factors and that are developed, what would happen - I guess in step one is - DOC is generally the first one to become involved, because we anticipate most of the referrals coming from people who have actually criminally convicted and are about to be released. DOC estimates that there's approximately 160 sex offenders that will be released. We've worked with the sponsor to narrow the definition of sexually violent predator. We've contacted a number of states and we believe that we're probably going to be as close as to Washington, which estimates two percent of their sexual offenders are actually committed and so that's where we get the - going from 160 to four or five civil commitments a year, is on that two percent estimate." "Bruce Richards perhaps can talk about a little bit what DOC will do as step one." BRUCE RICHARDS, Program Coordinator for the Department of Corrections, began speaking as follows: "Just to start out briefly, in December, the department conducted a study of the current population for sex offenders identified over 700 people in custody who had some sort of sex offense. They went on to narrow down the group by those who would release within the next 12 months and evaluated their crimes - their sex offenses based on 35 inherent sexual re-offense risk factors. And in the end, what they came away with that there were 86 of the 161 people identified who were a risk to re-offend." "What the DOC envisions coming from SB 216 is the initial screening process and as Ms. Cooper stated there would be a criteria set up with the DOL and DHSS to do the initial screening and make those recommendations to the DHSS for additional screening. I guess we look at DOC as the first line of oversight and to the initial process and the major screening process and in-debt involvement will come at the DHSS level." "I guess from there Mr. Lindstrom can take over for health and social services." ELMER LINDSTROM, Special Assistant for Commissioner Perdue in the Department of Health and Social Services joined in the presentation, stating the following: "It's our estimate under the current language of the bill, that we would conduct approximately 20 of the pre-filing screenings persons referred to us by the DOC in any given year. And initially at least for lack of any other facility to use, we would expect those to be conducted at API and last approximately 60 days. And it would be our task to look at those referrals from the DOC, do a more thorough evaluation of the individual and make a determination whether or not to refer on to the DOL for a request of the person that we pursue the - go to trial for - on an individual." "I assume this is a useful way to go through the document step-by-step so I guess we'll just be kind of bouncing back and forth here as we go along." Ms. Cooper resumed speaking: "After DHSS makes its referrals, if they conclude that a person qualifies as a sexually violent predator, then DOC will prepare additional documents in that - for review by the DOL. The DOL will then review the documents provided by DOC and by DHSS. In other states, we're told that this can be several inches thick. The most conservative estimate is you know a file that's approximately 4 inches thick and possibly even more materials than that." "The DOL would evaluate the referrals, review the files, all the documents in that, determine whether or not we have admissible evidence, whether certain victims or witnesses may be able to be located and that. If we make a determination that this - that we have sufficient evidence to proceed, then we draft what's called a probable cause petition and file that petition in request that the court grant a probable cause hearing. And that's sort of our screening phase." "Phase two, which is probably the most labor intensive, but is applies to a lesser number of individuals and we're estimating probably about four or five per year. The court would hold a probable cause hearing. The DOL would handle that. I've included the Public Defender Agency and the Office of Public Advocacy in the court proceedings in phase two and phase three because the statutes would provide for the appointment of counsel to represent the respondents in these proceedings." "If the court finds that there's probable cause, then the next step is to send the offender back to DHSS for whom - and they would conduct an additional evaluation at this point." "While the evaluation is going on and pending trial, we would estimate significant amount of attorney time being spent on motion practice. We perceive this as sort of the equivalent type of proceeding to a murder trial. Very labor intensive and very hard fought particularly the first several individuals who will - who the department will seek to civilly commit. A number of constitutional issues, those that we discussed earlier, some other legal issues and some case-specific issues. During this time period too there would be a lot of time spent preparing trial - you know meeting with witnesses, discussing their testimony, meeting with experts, some from DHSS and possible some that are hired as - from the private sector. At the same time while we're doing all of that, the PD and OPA would be doing the same thing." "Step eight, which is probably the most labor intensive is the jury trial, which we anticipate would last probably - in Washington they usually last about two weeks. So we would estimate would probably take about as long in Alaska. The statute or the bill provides that either side could request a jury. We're anticipating that either the respondent the Attorney General would request a jury trial so we're predicting all of them will be jury trials. The issue to be determined is whether the state has proved beyond a reasonable doubt that the individual is a sexual - sexually violent predator. If so, then the court will determine whether or not that person will be civilly committed and sent to a secure facility or if there's a safe alternative to confinement." "Once they're civilly committed, DHSS is responsible for their housing. Mr. Lindstrom can maybe explain where we anticipate they will be housed." Mr. Lindstrom rejoined the discussion, saying: "Thank you Mr. Chairman. At this point it's our assumption that these individuals would be placed in an out of state facility for treatment." "We are assuming again that four persons per year would likely be committed to our custody for this treatment. Four persons - next year four persons for eight; the next year, four persons for twelve, and so forth. In fact it would not take very long before we will have a substantial population of these individuals." "And at the outset, it seemed to us to be most reasonable to place these persons out of state so we made several phone calls. I believe Florida or Texas - believe it was Texas - we have spoken to and there's some willingness on their part to house our persons for a cost of approximately $400 per day. Just in passing that's about half the cost of the acute psychiatric care in a hospital in Alaska for example. Something lesser than an acute hospital care certainly is something that is long term treatment." "At some point it would be important for the Legislature to consider what to do in the long term. As you all know, we are in the process of downsizing our state psychiatric hospital. It's our expectation at this point in the next several years we'll begin construction of a new facility, which probably would be 54 beds. And API does not appear to be a realistic place to house these individuals. In any event, they would have to be housed separately from persons who suffer from a normal mental illness. So we would be looking at contracting out [undecipherable] fiscal note." Ms. Cooper resumed speaking: "After an individual is civilly committed we anticipate that they will appeal. The first several appeals we envision will be very labor intensive 'cause we will be litigating the constitutional issues that I referred to." "In addition to the appellate process there's an annual review process, which is outlined in steps 11 through 13 and I think that it's important to note that step 11 becomes step 14 and probably 16 or whatever because it's provided on a yearly basis. DHSS is responsible for conducting that annual evaluation." Mr. Lindstrom added: "That's correct, Mr. Chairman. And again we would be doing those in-house here, in state and would be a similar process to the initial evaluation. I believe the fiscal note indicates probably lasting about 60 days. At some point again, even the evaluation piece, which we're expecting we can do at API for several years, with the additional number of people each year, both the twenty new persons and four person increase in the regular population each year, the on- going population at some point that would not be feasible at our existing facility either." Ms. Cooper continued, saying: "It's - after the DHSS conducts the evaluation, the commissioner can recommend that the individual be released in which case there would be a hearing. If the commissioner recommends - or if the recommendation is no release, the respondent can still request a hearing. We anticipate a number of those to at least the first or second year request those hearings that again becomes a lengthy involved jury trial, in which the proof again is beyond a reasonable doubt. We anticipate that over time, a number of these will - or the necessity for jury trials and that will taper off because the bill provides that successive petitions can be denied without a hearing if the court finds that the petition is frivolous. We anticipate a number of appeals to be filed from denials of petitions for release and the DOL would be responsible for defending those appeals." "The last sort of block on phase three are on-going responsibilities as Mr. Lindstrom stated the DHSS would be responsible for the housing and treatment of these individuals and the DOL anticipates a number of civil lawsuits filed by these individuals challenging the conditions of confinement. The fact that they've been sent out of state and a number of those issues. In the past, we've learned that inmates are particularly litigious and we anticipate that a number of these individuals will be filing civil lawsuits as well. And the DOL would be defending those." Co-Chair Sharp asked if there were any statistics on the results of success tracking individuals that have had long treatment and whether they have relapses. He wanted to know what the success ratio was on repeat offences for individuals after they had gone through the exhaustive treatment at Washington State or other states that had the treatment programs. Mr. Lindstrom responded that his office had asked other states to find out what their experiences had been. Frankly, in his opinion, this program would require very long-term treatment. The success rate nationally and information provided by mental health professionals did not give a great deal of confidence that individuals would be successfully treated in a short period of time and able to leave the program, he expounded. The fact was, it would be very long-term treatment, he concluded. Co-Chair Sharp asked if it would be safe to say that the most successful part of the treatment was the confinement. Mr. Lindstrom restated that it would be very long-term treatment. At this point there was conversation between Senator Phillips and Senator Donley about legal problems associated with the bill. Senator Donley spoke for himself and Senator Parnell voicing their concerns about how the State Court of Appeals and the Supreme Court would interpret this statute. Senator Donley felt the legislation was a very good idea. When he first heard about the federal Supreme Court decision, he got very excited, thinking this was an opportunity to better protect our citizens. However, he did remain concerned about the current make-up of Alaska's Court of Appeals and that they would not be receptive. Senator Parnell added his belief that because of the compelling interest in public safety due to the high recidivism rate of these offenders, the constitutional concerns raised by DOL were defensible and should be upheld. Senator Donley agreed and felt the same about the issue of reciprocal discovery, which the court struck down this summer. Senator Phillips asked if the Attorney General had an opinion on this in terms of the constitutionality. Ms. Cooper emphasized that she was certainly willing to defend it. She felt that it could be upheld. However, she was reluctant to say what the court would do. She gave the example of the reciprocal discovery defense in the Stephon case, which the court ruled against. Senator Parnell pointed out that the difference here was because he didn't feel that any of these three constitutional rights had been extended as dramatically as the right against self-incrimination, privacy rights. Therefore, he was a little more optimistic that this would be upheld. He deferred to the Attorney General's office to make that judgement. Ms. Cooper stated that she was guardedly optimistic after having lost a number of other cases. She added as point of interest that her office was also defending the abortion bills, which also related to privacy rights. In the civil commitment matter, she was more confident in the defense of the double jeopardy and ex post facto arguments than she was with the due process argument. The main reason, she said was because of the court's interpretation in the Stephon case, where they interpreted the due process clause very broadly. Senator Phillips wanted to know if the DOC and DHSS had taken positions on the bill. Mr. Lindstrom responded first: "Mr. Chairman, I've spoken with my commissioner quite a good deal about this legislation and I think she fells personally that there is no question that there are some individuals who have very good reason to believe might well re-offend and some of those persons this might well be a sensible approach." "Having said that, this is a brand new system and it is a system that impacts a number of departments and is going to be very expensive. We have - here is a news release from the Arizona Republic in Arizona, 'Renovated building at the Arizona State Hospital will open next week to convicted sex offenders seeking treatment that could keep them locked up indefinitely...120 such residents...Hospital officials are expecting about five new sex offenders a month based on figures from the DOC. At that rate, he said, officials are planning to double the size of the Arizona Community Protection and Treatment Center.'" "So it is a very, very serious step and something that you ought to consider very, very carefully. Yes, there is something here that needs to be looked at. But, everybody needs to have their eyes open as we look at this. It's expensive." Senator Phillips requested DOC also comment. Mr. Richards spoke as follows: "Senator Phillips, I don't think the DOC has taken a formal position whether for or against the bill. I think I can echo Mr. Lindstrom's comments. I've talked to the commissioner several times and I think everybody can agree there are some very dangerous people who are currently incarcerated in our prisons now. We believe they will re- offend and in fact they will definitely re-offend." Senator Phillips revealed the reason he asked for the departments' stance on the bill was because he was curious what kind of recommendations they would make to the Governor when he was deciding whether to sign it into law, or veto the bill. Senator Adams asked if any of the involved departments had any amendments to offer. Ms. Cooper spoke for all, when she said they had been working closely with the sponsor and had worked out the language before drafting the latest CS. Rather than go through each fiscal note, Senator Adams requested that each representative give an estimated total cost to each of the departments. Ms. Cooper said for the DOL, the first year figure would be approximately $480,000, which would be the same in the second year. The cost would go up in the third year. Mr. Lindstrom, speaking for the DHSS, pointed out that the Senate Judiciary Committee had prepared a brief memo laying out totals of all the fiscal notes. The memo indicated an FY99 total for all agencies at $1.7 million, the FY00 total would be $2.4 million, $3.5 million in FY01, $4.3 million in FY02, $5.1 million and $5.8 million in subsequent years. He noted the escalation of costs during the course of the program given the assumptions that they used in preparing the fiscal notes. Co-Chair Sharp looked at all the entities involved and listed them: DOC, DHSS, DOL, PDA, OPA, Alaska Court System and the citizens that would have to serve on the jury. The committee started hearing public testimony. Co-Chair Sharp called on Jane Andriin of the Counsel on Domestic Violence and Sexual Assault. She introduced herself and testified as follows: "I'm here today to say that the counsel supports CS for SB 216." "I think one of the things that's important for folks to remember is that sexual assaulters are violent offenders. The whole rationale and purpose behind sexually abusing someone is to exert power and control and to be violent toward those folks. With that in mind, I think it's important to realize that all sexual offenders we don't believe can be ever cured. At best they can be taught to control their violent impulses and how they act out using sexual assault. At the same time, there is a minority of these offenders who are so - who's crimes are so heinous, who's potential for abuse and future violence is so great that we feel it's important to have some kind of venue to further protect the public." "The counsel has had concerns about using a mental health finding, which would detract from the offender category. But we feel that the CS addresses many of those concerns. We also feel it's important that they not be treated solely as a mental health person, but that - and they need to be kept out of the general mental health population." "People who, for the most part access mental health services, especially residential services, are not in a position where they could protect themselves from these offenders. This bill I think does an excellent job of doing that and for that reason the counsel support it." Co-Chair Sharp noted there was someone signed up to testify via teleconference. He called on BLAIR MC CUNE, the Deputy Director of the Alaska Public Defender Agency to testify from Anchorage. Mr. McCune identified himself and spoke as follows: "We've submitted a fiscal note and I appreciate Ms. Cooper going through the bill and pointing some of the issues that - complicated legal issues that will need to be raised at least - especially in the first few cases here." "This is a new law a proposal for Alaska. There'll be for the first time in this state there'd be commitment or confinement based on instead of punishing people for crimes they've committed, incarcerating people based on prediction that they might commit crimes in the future." "We've talked a little bit about the Kansas vs. Hendricks case. I think it's important to remember that was a pretty close decision, a 5-4 decision by the justices of the US Supreme Court. We anticipate there will be quite a lot of litigation in the Alaska Supreme Court about this." "As Ms. Cooper mentioned, it is a matter of due process would be one of the main legal points that would have to be decided. It's a little different than due process as we normally think about it, which there's a subtenant due process and procedural due process. Subtenant due process is depravation of liberty without due process of law. The due process clause talks about a liberty interest people have not to be confined." "We've talked a little bit about public safety and it would very important of course if this law passes, that there be treatment provided and that there'll be some possibility of successful treatment of people who are confined." "So we see quite a lot of litigation if this bill does pass with regard to subtenant due process especially." "We - The DOL estimated bringing about 5 petitions per year, four of which would probably be successful is their estimate. Just wanted to point out that there'd be quite a lot of pressure to bring more cases. Someone who's getting out of jail after having committed a serious sexual assault or sexual abuse of a minor case we can imagine that there'd be considerable pressure. Mr. Lindstrom wrote - said that the Arizona experience is getting quite a few more cases than just the four or five. But we've base our fiscal note just on the DOL's figures." "The - going to the bill specifically, I just wanted to point out that the definition of mental illness on page eight..." Tape #144 Side B, 10:00 a.m. "...line 21, is - refers to the [AS] 12.47.090 definition. That's a very broad definition [undecipherable]. It would include pretty much any mental condition that makes someone dangerous." "Also, the definition on the next page, on page nine of sexually violent offenses includes quite a few offenses in that category. Including sexual abuse of a minor or sexual assault in the second degree, which is contact, sexual contact. Then in subsection C it talks about any - the reference to [AS] 11.31.100 are attempts. So as a predicate offense for this commitment, you can have an offense as low as an attempt to have sexual contact with someone." "So we feel it casts a pretty broad net and understand that there will be quite a lot of screening process that would have to be taken in order to - in order to find the people who would be subject to this act." "Another thing I'd like to point out, that we pointed out before in other testimony was that the American Psychiatric Association had a task force on this - on these types of - on this type of legislation and felt that it would be very difficult, speaking as mental health professionals, to categorize people based on future danger [undecipherable]. To say that this person as opposed to that person will be someone who will commit another sexual assault or sexual abuse of a minor. And we also see quite a bit of reluctance. It would be a difficult call to find someone safe or certify someone, and the bill uses this language, that they're safe to be at large, when someone's committed a serious sexual assault of a minor. They're going to be a certain reluctance to find someone - categorize someone as safe by mental health professionals." "Lastly, I wanted to point out to the committee, we've - I've done some checking after the Senate Judiciary Committee to see what other state's expenses are. I checked with an agency in King County, who contracts with -for most of these types of cases. They estimate that they billed about $384,000 in one year for attorney services. And their one case - I asked them to pick out one case where they might have had a total per year and that came out to $68,000 per year for just the defender services. They also contract with experts. We would include - we've included that in our contractual services line so it's actually ends up being quite a bit more than that." "So we note that this is a very expensive and - process that we'd be involved with to a great extent. I'd be happy to answer any questions if the committee has any, sir." There were no questions for Mr. McCune. That concluded public testimony. Senator Parnell offered a motion to move CS SB 216 (JUD) from committee. Without objection, it was so ordered. Co-Chair Sharp noted that action on this bill took longer than he anticipated and that he wanted to skip down on the agenda to SB 356, so the committee would be sure to get to it. SENATE BILL NO. 356 "An Act relating to treatment under legislative standards of conduct of campaign contributions to legislators during a legislative session; and providing for an effective date." Co-Chair Sharp pointed out that the Senate Finance Committee had introduced this bill. He requested Senator Donley speak to the legislation. Senator Donley's statement was as follows: "Mr. Chairman, when the Senate sent, I believe it's SB 275, over to the House, it had a fix for this glitch in the current campaign finance law in it. The House reversed the way it worked - the bill we sent over there was more restrictive on finance, campaign finance fund raising. The House version coming back opened it up a little bit. The bill we sent over actually conformed with existing [undecipherable] law. The bill that came back though, when they reversed the way it was structured, they forgot to modify ethics law to conform with the campaign finance change they made. And what SB 356 does is to conform existing ethics provision with the campaign finance changes that were made in SB 275." Co-Chair Sharp noted there was no one signed up to testify to this bill. There was some discussion between members that was inaudible. Senator Donley moved SB 356 from committee. He said the bill should have a zero fiscal note since the bill would just conform to existing law. Co-Chair Sharp said his staff would look into that and prepare a zero fiscal note, if it was appropriate. There being no objection, SB 356 was reported out of committee. The committee resumed taking up bills in the order listed on the agenda. CS FOR SENATE BILL NO. 331(HES) "An Act regulating licensed professional counselors; regulating use of the titles 'licensed professional counselor' and 'licensed counselor'; amending Rule 504(a)(3), Alaska Rules of Evidence; and providing for an effective date." Co-Chair Sharp invited BETH HAGEVIG, staff to the bill's sponsor, Senator Gary Wilken, to come to the table and testify. She spoke as follows: "...[Senator Wilken] unfortunately can't be here this morning, because he is chairing a HESS Committee meeting downstairs. So he sends his regrets and he'll try and make it as soon as he gets out." "SB 331 establishes a board to license and regulate experienced Masters and Doctoral level professional counselors who's education and experience do not fall within the existing behavioral health specialization of licensed clinical social worker, licensed marriage and family therapist, licensed psychologist or psychological associate." "This bill is good for Alaska's consumers because it establishes a minimum standard of education and experience that clients can trust, helping to eliminate the buyer beware situation that currently exists. It provides for statutory - for a statutory guarantee of confidentiality between counselor and client with limited exceptions. And protects that guarantee of confidentiality within the court of law. It institutes grievance procedures and gives legal recourse for clients of licensed professional counselors who feel they have been victims of fraudulent, unethical or negligent practices. It gives clients who require mental health services greater choice and comfort in choosing the provider that best suits their needs both emotionally and financially. And it increases the availability of licensed mental health providers who practice statewide, giving better access to mental health care to Alaska's rural residents." "This bill is good for counselors because it opens doors to employee assistance programs that currently require licensure for their service providers. It [undecipherable] career opportunities for counselors who wish to work for entities that require licensure. It provides incentive for master's level behavior health graduates of Alaska's university system to stay in-state and take advantage of licensing opportunities that already exist in 44 other states. And it includes licensed professional counselors under Rule 504, protecting them from contempt of court in cases where client confidentially must be protected." "This bill has the support of the American Counseling Association and the ACA of Alaska, The Alaska School Counselor Association and numerous professional counselors and clients." "And you probably have in front of you a blank CS that we had drafted up for the committee. There's some changes. It's Version "K". There's some changes been made at the suggestion of the Alaska Psychologist Association." There was some discussion among the committee members in locating the CS. Senator Pearce requested a motion to adopt the working draft. She deferred to hearing the changes made first. Ms. Hagevig continued: "The first change is an additional paragraph to AS 08.29.020 (a), it's paragraph number four. And that's on page two line 18. Paragraph four was added to comply with language in [AS] 08.29.491(c). It corresponds to the expanded duties of the board as they relate to establishing education and training requirements required for the administration and use of assessment instruments or tests, basically by licensed professional counselors." "And second change is the second statute - or second number I just mentioned, AS 08.29.491 that's page seven line 26. And in that we have some new language starting after the 'practice of professional counseling means' - and I can read that for you, 'Subject to (c) of this paragraph, the application of principles, methods or procedures of the counseling profession' was added at the suggestion of the counselors. And then we skip, after on line 28, after 'the use of projective testing' we also, 'or individually administered intelligence test'. That was at the suggestion of the psychologists." "And then the last change is on page eight and that's line 11. And we've got a new paragraph there, that's paragraph (C), 'Consistent with the regulations adopted by the board under AS 08.29.020(a)(4), administration and use of appropriate assessment instruments measure or diagnose problems or dysfunction within the course of human growth and development as part of a counseling process or in the development of a treatment plan. That was added at the suggestion of the psychologist. It basically specifies what licensed professional counselors can do and the change before specifies what they can't do." Senator Pearce noted that the "K" version had not been adopted and that Senator Phillips had offered a motion to do so [motion was not audible on recording, nor indicated in Secretary's notes] Senator Parnell said he didn't think there was any objection to adopting Version "K" as a workdraft, but he felt the committee should go through the motions of adoption on record. Co-Chair Sharp noted no discussion or objection on adoption of CS SB 331 and ordered it adopted. The committee began hearing public testimony on the bill. Co-Chair Sharp first called upon ANN HENRY, from the American Counseling Association of Alaska. She spoke as follows: "As Beth said, there are already 44 other states that currently license or certify 50,000 professional counselors. Pennsylvania is expected to pass this legislation shortly and that will mean that Alaska is one of only five states that doesn't have this recognition for counselors." "Also legislation has been introduced in the US Senate that will finally recognize professional counselors, adding them along with psychologists, social workers and marriage and family therapists to receive federal funding for training programs. So we're becoming more and more acknowledged as a professional organization." "And like mental heath care around the country, professional counselors are an integral part of Alaskan mental health system. We estimate that there are some 600 potential licensed professional counselors already practicing in the State Of Alaska." "As Beth mentioned, this is a consumer protection bill. And I wanted to go over a couple of the important parts about that a little bit further. The most important one I think is the shift in Rule 504, which is found on page nine, line eight. And basically what that does is permit counselors to not have to talk about confidential information that their clients have confided in them in a court situation. It adds line B, which is - line 16, just adding professional counselors to the list of people that already have this privilege including the marriage and family counselors." "Additionally, on page six beginning on line four, we have a disclosure statement in the set of statutes. This is something that no one else has. When you walk into a counselors - a professional - licensed professional counselor's office, you would see the disclosure statement on the wall, which would tell the client the person's name, where they graduated from school, any degrees and licenses that they have, areas of specialization, fees that they charge and most importantly at the bottom, it tells the client who to contact if there's anything that's unethical or incompetent - unprofessional about the experience that they've had." "Back to Rule 50 - " Senator Parnell interrupted with a question asking the location of the referred language in the bill. Co-Chair Sharp showed him it was on page six. Ms. Henry continued: "When I had - this bill was initially being drafted and the legislative services people suggested that we include Rule 504 and I did not know that we were not already covered with privilege in the state. This was surprising to me. I then contacted lots of people and asked them if they knew that they did not have privilege and clients and professionals alike did not know that. So I think this is a very important piece about this legislation." "Moving on, today's climate of mental health care is changing and what we're finding is that more and more people are having difficulty getting jobs and keeping jobs if they're not licensed or licensable. In fact there are a couple of people that I've heard about who are professional counselors who are probably going to lose their jobs shortly if this licensure does not go through." "This is a title restriction not practice restriction so people are not required to get this licensure. They may still continue to practice." "This is a good bill for Alaskan consumers and counselors alike and so we're urging you to please pass this bill out." Co-Chair Sharp had a question relating to page 7, line 29, which added language saying, "...individually administered intelligence tests..." and also gave a definition of "practice". Would this legislation and particularly this language have any impact on school counselors, he wanted to know. Ms. Henry said it would impact school counselors, with a master's level or above. Ms. Hagavig interjected it would apply to these counselors if they were licensed. Co- Chair Sharp commented that school counselors would be affected if the school district required licensure. Ms. Henry shared with the committee that the administration of intelligence tests was generally done by psychologists rather than counselors. Co-Chair Sharp called upon the next person to testify, DR. ALLAN MORATTI, who joined the committee via teleconference from Fairbanks and testified as follows: "I am a professor of Guidance and Counseling at the University of Alaska-Fairbanks and I also represent the Alaska School Counselors Association, which is in favor of this bill." "I don't want to take a lot of time. I just want to reiterate some of the things that Ann Henry said. I believe that this is a good bill because one, it does protect the consumer, two, will make or create a larger pool of licensed mental health practitioners for rural Alaska. It will also bring recognition throughout the state to what counselors are doing. And I think it - many ways will allow the University of Alaska system to be able to offer continuing education courses for LPC's and also to develop programs, which now are not in place as far as licenses professional counselors a masters degree in let's say, community counseling. It would not be difficult to do this as our programs both at the University of Alaska-Anchorage and Fairbanks, which prepare people for school counseling and also as community psychologists." "In closing, I'd like to simply encourage the committee to support the bill and I'd be happy to answer any questions that anyone on the committee may have. Thank you." That concluded public testimony on this bill. Co-Chair Sharp noted that CATHERINE REARDON the Director of the Division of Occupational Licensing was present and available to answer questions. He had one question of her wanting to know if the new CS would impact the fiscal note. Ms. Reardon indicated it would not. Senator Phillips offered a motion to move from committee, CS SB 331 (FIN) Version "K" with accompanying fiscal notes. Without objection, the bill was reported out of committee. CS FOR SENATE BILL NO. 335(L&C) "An Act relating to barbers, hairdressers, manicurists, and cosmetologists; and providing for an effective date." Co-Chair Sharp noted the sponsor of the bill was the Senate Labor and Commerce Committee. He asked if a representative of the committee was present to testify. ROBERT PEARSON came to the table and spoke as follows: "I'm an intern for Senator Loren Leman and also the public member of the Board of Barbers and Hairdressers at this time. Should I read the sponsor statement into the record?" Co-Chair Sharp directed him to do so and Mr. Pearson continued: "SB 335 changes cosmetology and cosmetologists to esthetics and esthetician in the applicable sections of statute to more clearly inform the public of what operations a licensee is trained to perform." "In almost all states, other than Alaska, those known as cosmetologists are licensed to cut, style and otherwise work on customer's hair. Currently, Alaska defines cosmetology as skin care for the scalp, face and neck. The Division of Occupational Licensing has recently added the words 'skin care only' to cosmetology license to make this clear to the public." "SB 335 deletes the word 'shaving' from the definition of hairdressing in line with actual training and practice." "SB 335 creates a new temporary license for those who have successfully completed a course of study or apprenticeship in barbering, hairdressing, esthetics or manicure. The temporary license allows licensees to work under the direct supervision of a practitioner licensed in the field they have been studying while awaiting board examination and the subsequent issue of a professional license. Students or apprentices who have completed training for those professions must often wait 90 days or more before they can begin to work as a licensed professional. In the meantime they can work currently under only a licensed instructor. Of the approximately 2,600 Alaska professionals licensed in these areas, only 150 are licensed instructors greatly limiting the opportunities for students - for the student or apprentice to earn income and maintain their skill while awaiting their boards." "SB 335 licenses manicurists under the same education and testing requirements as currently applied to cosmetologists estheticians. Manicurists are licensed in 43 states and the District of Columbia. The increased complexity of operations performed by manicurists, the use of chemicals and the possibility of disease transmittal, are reasons to consider professional licensing - excuse me professional training and a licensing requirements in Alaska." "Finally, SB 335 allows instructor's licenses to encompass the practitioner's license in the same field." Co-Chair Sharp next called upon CATHERINE REARDON, Director of Division of Occupation Licensing to come to the table. She testified as follows: "My division staffs the Board of Barbers and Hairdressers and therefore would be responsible for assisting and carrying out this bill if it were to become law." "Frankly I'm concerned about the licensing of manicurists, which is mandatory in this bill, unlike the professional counselors bill that you just heard. And the source of my concern is the question, 'does the health and safety risk of manicuring by untrained people warrant the burden that - in terms of education and testing that this bill might create." "It's my estimation that the course of study necessary to complete - to be a manicurist would probably cost around $3000 and probably take between two and three months of time. There are currently, my best guess is, about 295 businesses involved in manicuring. But I must say that's just an estimate based on some business licensing information we have. And if as my fiscal note does predict that two manicurists will be involved in any one of those businesses, that'd be about 590 people all of whom would have to stop either in the evenings or stop doing their business, take two to three months of course-work and pay - I'm guessing around $3000 so that they could continue their business activity." "And I say this a little bit of trepidation knowing that I believe that my board probably does support this licensure and that there's always is some consumer protection I believe benefit through requiring certain training for a certain profession. But I don't think any of us want to live in a world where every occupation requires a government license to work. And at some point I think we need to decide which professions are the most risky to the public and concentrate on regulating them well rather than continue to expand." "I can definitely administer this bill, this law. It expands my domain over another essentially 500 Alaskans and therefore probably my budget. But, I just do want to point out that currently this Legislature is considering licensing professional counselors, landscape architects, a new level of social workers and the manicurists, which is about 1,000 Alaskan. And I just wanted to get my chance to ask for a little or [undecipherable] pause to consider the impact on current small business owners. Thank you." Senator Donley stated he was impressed with the witness' testimony. He felt Ms. Reardon made a good case for not passing the legislation. Senator Phillips wanted to know where this request came from. Was there an association of manicurists or a loosely organized group, or just one or two individuals asking for this, he wondered? Mr. Pearson replied that the Board of Barbers and Hairdressers had discussed most of the issues in the bill. That was the main source of the request, he stated. Senator Phillips requested the bill be held while he had a chance to check around his district for opinions on the licensure. Co-Chair Sharp noted there was no written testimony in either support or opposition of the bill. He offered a list of members of the board if committee members wished to contact them. Co-Chair Sharp ordered the bill held in committee for a day. SENATE CS FOR CS FOR HOUSE BILL NO. 170(JUD) "An Act relating to interference with the rights of physically and mentally challenged persons; and relating to service animals during their pre-training and training period." Co-Chair Sharp invited JOE HAYES, legislative aide to Representative Tom Brice, sponsor of the bill, to come to the table to testify. Mr. Hayes introduced himself and testified as follows: "[Representative Brice is] sorry he couldn't be here today. He's out of town." "Our bill to day is HB 170, and act relating to service animals. I'll read the sponsor statement." "Although the Americans With Disabilities Act allows service animals into public facilities, so often young service animals are turned away from public facilities due to the existing law being arbitrary." "HB 170 extends this law to include the young animals in training. Service animals perform functions and tasks that an individual with a disability cannot perform for themselves. These young animals need the same exposure as trained service animals as they are expected to perform those tasks." At this point, a new CS Version "T" was passed out to committee members. Senator Pearce said she had Legal Services draft this CS. She moved for it's adoption and spoke to it's changes. In the Senate Judiciary Committee, language was changed in the bill to require the Department of Health and Social Services certify and issue identification to all individuals in the state who were training service animals and also issue identification to the service animals. It did not allow the department to charge for application and identification fees she shared. The new CS would eliminate the fiscal impact and bring the program back to where the industry would like it to be, she stated. It would also eliminate the government regulation of identifying and certifying the animals and trainers. She also pointed out on pages 20 and 21 a minor change made to the reference of "service animal" rather than the plural, "service animals". That was done to conform to the rest of the bill's language, she told the committee. Mr. Hayes stated Representative Brice approved of the CS, citing that it met the original intent of the legislation. He added that the representative understood the need for certification, but wished to address the matter of access for these animals in training. Certification would change the scope of the bill, he said. Co-Chair Sharp ordered SCS CS HB 170 Version "T" adopted as a work draft without objection. Co-Chair Sharp noted no one was signed up to testify on this bill. Senator Donley offered a motion to move from committee SCS CS HB 170 (FIN) with accompanying fiscal notes. There was no objection and Co-Chair Sharp reported the bill out of committee. Co-Chair Sharp announced a subcommittee meeting to be held the next morning at 7:30, chaired by Senator Parnell to address the local telephone exchange service bill. At 9:00 a.m., the full committee would continue with bills. A subcommittee on the tourism marketing counsel may have a CS for SB 350 ready to introduce to the committee, he said. The committee would hear HB 370, as it's first matter of business, as a new CS was ready. HB 210 also had a new CS the committee would look at during the same meeting. Other previously notices bills would be scheduled for hearing after the completion of the three just mentioned. Senator Pearce pointed out that the Legislature had a formal request from the Administration for a one-time capital appropriation for the Year 2000 project. Because it was such a huge issue, she requested a meeting be scheduled to have the Administration brief the full committee on the status of the project. Co-Chair Sharp agreed to the request and tentatively scheduled the meeting for Wednesday morning. He noted that there was a large sum of money involved. Co-Chair Sharp made further schedule announcements, saying a draft package had been put together for the Alaska Housing Finance Corporation bonding project. A new CS should be ready by Friday morning for his review. He related the action on this bill to the capital bill. He would have a CS for the capital budget ready to distribute to members on Friday and schedule hearings on Saturday. He hoped the AIDA bill would also be in front of the committee at the same time to allow some of the projects to be rolled in. ADJOURNMENT Co-Chair Sharp adjourned the meeting at approximately 10:45 a.m. SFC-98 (27) 4/27/98 am
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