Legislature(1999 - 2000)
02/18/1999 08:58 AM Senate FIN
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
MINUTES
SENATE FINANCE COMMITTEE
February 18, 1999
8:58 AM
TAPES
SFC-99 # 31, Side A & Side B
CALL TO ORDER
Co-Chair John Torgerson convened the meeting at
approximately 8:58 AM.
PRESENT
Senator John Torgerson, Senator Sean Parnell, Senator Randy
Phillips, Senator Dave Donley, Senator Loren Leman, Senator
Gary Wilken, Senator Al Adams, Senator Lyda Green and
Senator Pete Kelly.
Also Attending: Margot Knuth, Assistant Attorney General,
Department of Corrections.
SUMMARY INFORMATION
SJR 2-CONST. AM: PRISONER'S RIGHTS
The committee adopted CS SJR 2 (FIN) and moved it from
committee.
SB 36-YEAR 2000 COMPLIANCE REQUIREMENT
This bill was heard and held.
SENATE JOINT RESOLUTION NO. 2
Proposing an amendment to the Constitution of the
State of Alaska relating to the rights of prisoners
under the criminal administration section.
Senator Dave Donley, the sponsor, testified. He said that
this proposed constitutional amendment was a "return
engagement" of the issue of prisoner's rights in the State
Of Alaska. Specifically, it was a narrower focus of the
proposal the Legislature attempted to put on the ballot to
amend the state constitution last year. Both versions
attempted to limit the rights of convicted prisoners in
Alaska to more than the rights they are afforded under the
U.S. Constitution. This version narrowed the focus to only
apply to those rights contained in Section 12 and not
rights contained anywhere else in the state constitution.
The narrower focus of this year was an attempt to address
the court's criteria set out in its decision that the
proposal last year was too broad to be considered an
amendment but was instead a revision. Revisions could only
be done at a constitutional convention.
He spoke of specific questions this proposal would face
even with the narrower focus. They had to do with the prior
rulings of the Alaska Supreme Court relating to the
"principle of reformation" defined as an individual
enforceable right of convicted prisoners.
Senator Dave Donley argued it was clear that was not the
intent of the constitutional convention as shown in the
records of their debate. The debate at the convention
specifically addressed the "principle of reformation"
language and he believed that it was a guideline principal
for running prisons. It was never intended to be individual
rights for individual prisoners. However, in the 1970s and
1980s, the Alaska Supreme Court decided it meant something
different and that it gave special individual rights to
Alaskan prisoners that are not seen anywhere in the
country.
Those rights included the individual right to force access
to rehabilitation programs, he continued. In 1997 the
court ruled in the Brandon case that there must be
substantial deference to the inmate's desire of where they
were incarcerated. Although this hadn't caused an
immediate problem, the Rabinowitz dissent in that case
pointed out that this was going to be a tremendous problem
in the future. It also said the court had essentially
given the prisoners the right to say where they go for
their incarceration. Senator Dave Donley pointed out that
49 other states as well as the federal courts had
universally rejected that right and Alaska is the only
state where our court has ruled that prisoners have some
say as to what prison they go to.
Adoption of this constitutional amendment gave Senator Dave
Donley hope that it would allow the state to revisit the
Cleary consent decree. He reminded the committee that this
was a settlement between the State Of Alaska and prisoners
in a class action suit saying that prisoners needed better
facilities and more opportunities while they were in
prison. This case claimed to be based on the state and
federal constitutional law. You could assume that those
things that weren't required by the federal constitution
were conceded by the state as required in the state
constitution. However, the Attorney General's Office said
it was not clear which items were required by the state
constitution and they responded that it was not clear, but
required.
Senator Dave Donley told the committee that the provisions
agreed upon by the state in the Cleary settlement dictated
that the state could never reopen the case. Just two years
ago, the US Supreme Court on an appeal from another state
that had its hands tied in dealing with its prisons because
of a similar settlement, announced that states had the
power to renegotiate these settlements. Especially if there
was an underlying change in the circumstances, he said.
"What could be a more underlying change in the
circumstances in the Cleary settlement, which past attorney
generals said it was based on constitutional law, then this
change of the portion of the constitution that was the
premise of the original settlement.
Many restrictions in the Cleary settlement are unique to
Alaska. The most troublesome for future prison
construction, is the provision that cells can no longer
contain more than two inmates. In the private Arizona
prison we contract with, they have the ability to house up
to 16 inmates in each cell. The administration at that
facility says that it is actually a benefit because some
prisoners do better and have a faster rehabilitation in a
more social environment. Under Cleary, the state negotiated
away the ability to do the most efficient and effective
type of inmate housing, according to Senator Dave Donley.
He explained that this was an example of a restriction
based on an unknown, unidentified state constitutional
right that stemmed from the "principle of reformation" that
the court had misinterpreted from the original meaning of
the state constitution.
He continued saying that as the state continues to go down
this "slippery slope" year after year, we could see the
court continue to misinterpret the state constitution
further.
He emphasized his belief that reformation was a good thing.
He felt prisoners did better with an education. However,
he felt it should be because society wants the
rehabilitation, not a tool for prisoners to use to abuse
the process.
Senator Dave Donley quoted a statewide Dittman Research
poll that showed 76-percent of Alaskans supported last
year's Ballot Measure #1 in its original proposal. This
current proposal was not as encompassing as Ballot Measure
affected.
He said the reason for the changes was because of the state
Supreme Court's preliminary decision, it pointed out one of
the reasons for refusal to place the proposal on the ballot
was because it impacted multiple articles or sections of
the constitution.
He complained that the court never produced a final
decision on the ruling. He suggested they would have a
difficult problem justifying their decision. "They are way
out on a limb and they know it" he declared.
Senator Dave Donley recounted testimony given by the public
defender in the Senate Judiciary on this proposed
constitutional amendment. The public defender testified
that violent sexual predators could not be committed
because Alaska did not have a facility where they could be
incarcerated and is close to their families. Senator Dave
Donley used this as another example of the fallout from the
Cleary settlement. He warned that the next year it would
be something else, and that was the reason the matter
should go before the voters.
He then spoke to a committee substitute he had drafted
after the discussion in the Senate Judiciary Committee.
This would focus the constitutional amendment proposal even
further to only apply to the portion of Article 1 Section
12 that deals with the "principle of reformation."
Senator Dave Donley then moved for adoption of the CS for
SJR 2. Co-Chair John Torgerson objected for discussion
purposes. Senator Al Adams asked for an explanation of the
differences between the bill and the proposed CS. Senator
Dave Donley explained that the original proposed
constitutional amendment modified all of Article 1 Section
12 by saying that the rights contained in such for
convicted prisoners could not exceed those in the United
States Constitution. The CS would not modify the excessive
bail and excessive fines provision contained in the
article.
Co-Chair John Torgerson asked if the CS would still affect
the Cleary Act. Senator Dave Donley thought so because the
problems in the Cleary settlement logically stemmed from
the court's misinterpretation of the "principle of
reformation."
Senator Al Adams announced that he would not object to the
CS. Co-Chair John Torgerson removed his objection. The
committee adopted CS SJR 2 (FIN) without objection.
Senator Al Adams noted that some of the questions remaining
with this modified constitutional amendment hinged on the
final Supreme Court ruling. He asked when that ruling
would be issued and if the bill could wait for the ruling
to ensure that it went along with any stipulations from the
final decision. He said that there were some worries about
rehabilitation and reformation policies. He wanted to know
what this amendment would have on those practices. Lastly,
he referred to a constitutional amendment before voters in
1994 regarding the administration of prisoners. It
contained provisions relating to the victim's rights of the
prisoners. How would that tie into the present resolution,
he asked.
Senator Dave Donley did not know when the Supreme Court
would issue its final decision, but felt that was a good
question. He complained that because the court was having
such a difficult time making decision over the last several
years, it was preventing other matters to be heard such
those relating to subsistence issues. He referred to the
court's suspension of constitutional rights in the campaign
finance area, which he felt was determined illegal under
Japanese Internment cases by the US Supreme Court. It ruled
it illegal to simply suspend constitutional rights for a
period while the court makes up its mind
Senator Dave Donley made further comments and offered
opinions about the delay in the issuance of the final
ruling. He believed the court had a bigger problem with
its modification of Ballot Measure #2 without review of the
Legislature. He knew of no other instances where this was
allowed in the US.
He then addressed the question of how this inter-played
with the 1994 constitutional amendment regarding victim's
rights. In 1994, the Criminal Administration was
restructured from the former Penal Administration. The
penal administration only referred to the principle of
protection and reformation. Section 12 was changed to add
several provisions to deal with the rights of victims. He
said that the language was inserted with that intent, he
didn't feel the court interpreted it that way. He didn't
think this amendment would directly impact that issue. I
would have an impact upon the prison's aspect of the
principle.
Senator Al Adams repeated his question about how this
proposed constitutional amendment would hamper or negate
rehabilitation or reform as set by court order.
Senator Dave Donley responded that this would in no way
harm the state's ability to enact reformation. He warned
that the state needed to be tough and that he didn't think
enough was being done to enforce reformation orders. The
constitutional amendment would say that it is no longer an
individual enforceable right of prisoners. It would now be
up to the state to decide what's appropriate.
Senator Al Adams had a question for Margot Knuth. "Do you
know when the Supreme Court will issue its finding?"
MARGO KNUTH, Assistant Attorney General, Department of Law,
on loan to the Department of Corrections, testified. She
said she didn't know when the decision would be issued but
felt it was a matter of weeks rather than months.
Senator Al Adams asked Margo Knuth the same questions
regarding the reformation of prisoners and the vote in 1993
about victim's rights.
Margo Knuth replied that the department hoped that if
adopted would not be used as an excuse to not do
rehabilitation. She listed the number of people processed
through the criminal system each year.
Senator Al Adams last question related to the Supreme
Court's ruling that last year's proposed constitutional
amendment was too broad. Will this version survive a
challenge by the public, he asked Margo Knuth responded
that it would be difficult to know the legality of the
amendment until after the Supreme Court issued its opinion.
Co-Chair John Torgerson wanted to know if the
Administration had an opinion on this. Margo Knuth said
that because of the uncertainty of the court's final
ruling, the Administration could not be sure what the
impact would be and therefore had not determined a
position.
Senator Dave Donley offered a motion to move CS SJR 2 (FIN)
from committee with accompanying $1500 fiscal note. The
motion passed by a vote of 7-1-1. Senator Al Adams case
the nay vote and Senator Sean Parnell was absent during the
vote.
Co-Chair John Torgerson called for a break from 9:30 am to
9:32 am.
Senator Dave Donley spoke to a proposed Senate Joint
Resolution that would urge the Congress of the United
States to use federal education funds as a block grant to
the state. He wished the Senate Finance Committee to
sponsor the resolution.
Senator Loren Leman agreed with the concept and had
suggestions on the wording. He did not think the block
grant should be restricted to public education. He told
committee members their mandate was "education for all
children." He suggested that on page 1, lines 4 and 7, the
word "public should be deleted.
He had further suggestions for page one line 6 and offered
to work with the sponsor. He stated that he was not sure
the federal government should be taking the money just to
run it back through the system as a block grant. He felt
it would be better to distribute it as a block grant.
Senator Gary Wilken agreed to the concept of the resolution
and asked approximately how much money was involved. Co-
Chair John Torgerson said preliminary figures from the103rd
Congress listed close to $60 million for Alaska. He
recommended that state be allowed maximum discretion for
using the money. He thought the resolution should include
wording that said the Legislature should be allowed to
discuss the funding expenditures.
Senator Pete Kelly pointed out for the committee's
information that this form of funding different programs
came out of discussions in 1992 through 1994. The intent
was that block grants should be delivered straight to the
local school districts rather that to the legislatures, who
would exercise more power over the funds.
Co-Chair John Torgerson agreed and said it that was the
case, the Legislature was out of the loop.
Co-Chair John Torgerson asked if there was any objection to
request to have the committee to sponsor this resolution.
There was none. He directed Senator Dave Donley to work
with Senator Loren Leman and other committee members to
draft a version that included the items discussed.
SENATE BILL NO. 36
"An Act relating to state procurement of certain
computer-related contracts."
Mark Hodgins, staff for Senator Jerry Ward, testified for
the bill. He said it would affect all computers and
software purchased by the state in the future.
He said that when the bill was heard in the Senate State
Affairs Committee there were some questions about page 1
lines 11 and 12 regarding product brochures requested. The
Division of Legal Services determined that it would not
affect the bill.
Senator Loren Leman wanted to know if this would create an
implied demand to change the state's hardware or software.
He spoke of many stand-alone computers that were probably
functioning adequately for the needed tasks they performed
even though they were not Y2K compliant. Mr. Hodgins
responded that this bill would only affect items to be
delivered after passage of the bill. Anything already
owned by the state would not be affected.
Senator Gary Wilken questioned the necessity of the bill.
He felt that the state was already taking appropriate
measure to prevent the purchase of non-Y2K compliant
equipment. By the time the bill went into affect, the
deadline would be very close. Mark Hodgins said he had
contacted Vern Jones, Chief Procurement Officer in the
Department of Administration, who brought up the same
point. However, Mr. Jones said he had no problem with bill.
While seemed like duplication, by setting the requirement
into statute, the state would have some recourse in case
non-compliant equipment was ordered.
Tape: SFC - 99 #31, Side B 9:48 AM
Mark Hodgins pointed out that certain policy directions did
not always reach all departments as quickly as the
Legislature would like.
Co-Chair John Torgerson gave a scenario for consideration.
He said that the value of equipment not Y2K compatible
would sharply decline. Some departments might wish to
purchase some of this low-priced equipment to use for
applications where the compliance was not necessary. Would
this bill prohibit them from making those purchases, he
wondered.
Mark Hodgins responded that it would prevent them. But he
was not sure the state had ever gone back and bought
obsolete equipment. He figured departments would wish to
purchase equipment that could be used for multiple
applications.
Senator Dave Donley suggested a sunset date be added to the
bill so the law would not be on the books years after its
usefulness.
Co-Chair John Torgerson asked why isn't there wasn't an
immediate effective date because the matter was so serious.
Mark Hodgins noted that neither a sunset nor an effective
date was included in the bill. He felt these would be two
amendments that would be appropriate.
Senator Al Adams wanted to know the penalty for not
complying with this law. Mark Hodgins did not know the
specific penalties but said it would be a very specific
policy direction to departments.
Co-Chair John Torgerson asked if this would apply to state
funded public facilities such as libraries. Mark Hodgins
was not sure. Co-Chair John Torgerson said it was staff
from a library that told him they would like to purchase
older machines for patrons to use and they would not need
to be Y2K compliant.
Senator Loren Leman asked if it was the chair's intent to
move the bill from committee today. Co-Chair John
Torgerson said no. He wanted the committee to work on
inserting a sunset date.
Senator Loren Leman suggested on line 7 and 11, an
amendment to insert the words "new" and "each". This might
allow departments to purchase the cheaper, non-compliant
equipment for nonessential applications.
Co-Chair John Torgerson directed Senator Gary Wilken to
work on drafting a committee substitute to address the
issues discussed.
Co-Chair John Torgerson announced that the next meeting
would begin at 9:15 am, February 19 and would be a joint
meeting of the House and Senate Finance Committees to hear
the State of the University presentation. The meeting would
then adjourn early so members could make it to the 10:15 am
Senate floor session. He also noted the invitation to join
U.S. Senator Frank Murkowski for coffee at 9:00 am in the
House Speaker's office.
ADJOURNED
Senator Torgerson adjourned the meeting at 9:56 am
SFC-99 (1) 2/18/99
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