Legislature(2001 - 2002)
04/20/2001 01:46 PM Senate JUD
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ALASKA STATE LEGISLATURE
SENATE JUDICIARY COMMITTEE
April 20, 2001
1:46 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chair
Senator Dave Donley, Vice Chair
Senator John Cowdery
Senator Gene Therriault
Senator Johnny Ellis
MEMBERS ABSENT
All Members Present
COMMITTEE CALENDAR
CS FOR HOUSE BILL NO. 32(JUD) am
"An Act relating to the forfeiture of property used to possess or
distribute child pornography, to commit indecent viewing or
photography, to commit a sex offense, or to solicit the commission
of, attempt to commit, or conspire to commit possession or
distribution of child pornography, indecent viewing or photography,
or a sexual offense."
HEARD AND HELD
SENATE BILL NO. 161
"An Act relating to the withholding of salary of justices, judges,
and magistrates; relating to requiring prompt decisions by
justices, judges, and magistrates; and relating to judicial
retention elections for judicial officers."
MOVED CSSB 161(JUD) OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
SB 161 - See Judiciary minutes dated 4/9/01.
WITNESS REGISTER
Representative Joe Hayes
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Sponsor of HB 32
Sergeant Chuck Kopp
Alaska Peace Officers Association
107 South Willow
Kenai, Alaska 99611
POSITION STATEMENT: Supported HB 32
Lieutenant Dunnigan
Department of Public Safety
PO Box 111200
Juneau, AK 99811-1200
POSITION STATEMENT: Supported HB 32
Mr. Marc Poeschel
Interior Alaska Forces Task Force
PO Box 755560
Fairbanks, Alaska 99755
POSITION STATEMENT: Supported HB 32
Ms. Stephanie Cole
Alaska Court System
303 K Street
Anchorage, Alaska 99501
POSITION STATEMENT: Opposed SB 161
ACTION NARRATIVE
TAPE 01-20, SIDE A
Number 001
CHAIRMAN ROBIN TAYLOR called the Senate Judiciary Committee meeting
to order at 1:46 p.m. Senator Ellis, Senator Therriault, Senator
Cowdery and Chairman Taylor were present. Senator Donley arrived
at 2:15 p.m. Chairman Taylor announced the first order of business
would be HB 32.
HB 32-SEX CRIME AND PORNOGRAPHY FORFEITURES
REPRESENTATIVE JOE HAYES, sponsor of HB 32, said if a person was
convicted of a sex crime for distributing child pornography through
the Internet or if they were convicted for knowingly enticing
minors thorough Internet chat rooms their computers and equipment
would be seized and used by law enforcement. Representative Hayes
said he had letters of support from law enforcement organizations
and he had also received one letter of opposition from a naturalist
group in Wisconsin and their concerns had been addressed. At one
point HB 32 was too broad and there was a concern that real
property could be taken, but the definition had been refined making
the wording more specific to computers and computer related items.
SENATOR COWDERY asked if cell phones and hand held radios could be
taken.
REPRESENTATIVE HAYES said the definition of property was on page 2,
lines 5 through 10, and cell phones and hand held radios were not
listed.
SENATOR ELLIS asked for a definition of child pornography. He said
people send pictures of their children to relatives through the
Internet, and sometimes the children are "naked on a bear skin rug,
and it's just a baby." He wondered if there was a clear definition
and a way to discriminate between naked baby pictures and what
would be considered child pornography.
REPRESENTATIVE HAYES said the definition was referred to in the
bill through statutes AS 11.61.123 - 11.61.127.
SENATOR ELLIS said that police now seize computer equipment from
crime scenes and he asked if HB 32 allowed law enforcement to
retain the seized equipment or was it to be auctioned for law
enforcement resources.
REPRESENTATIVE HAYES noted that law enforcement does not have
adequate resources for the latest computer technology and HB 32
would allow for the seizure of property and, after a conviction,
use the property. The equipment would not be sold.
SENATOR THERRIAULT asked if law enforcement could sell the
equipment.
REPRESENTATIVE HAYES said there was nothing from prohibiting law
enforcement from selling the equipment but the intent of the
legislation was to allow law enforcement to use it.
SENATOR THERRIAULT said that there was sometimes criticism of law
enforcement for seizures so, "they can get their hands on assets or
cash." He asked if the property was sold, would law enforcement
automatically have access to the cash or would the cash accrue to
the state treasury where it would sit until the legislature
appropriated the money back.
REPRESENTATIVE HAYS explained that selling the equipment had never
been discussed, the intent of HB 32 was to give law enforcement the
use of newer, more modern equipment. The seized computers would
have the perpetrators web addresses and connections, which could be
used for the apprehension of other criminals.
SENATOR THERRIALUT said the intent section of HB 32 asks the courts
for protection of innocent third parties who may have an ownership
interest in the equipment so that their equipment would not be
seized.
Number 570
REPRESENTATIVE HAYES said that was correct. The intent wording was
added to give reassurance that an innocent third party would not
have his or her computer taken.
SENATOR THERRIAULT asked if a sexual offender with a prior
conviction was staying in someone's home and using their computer,
would the homeowner need to lock up his or her computer equipment
to keep it from being seized.
REPRESENTATIVE HAYES said the intent language stated that third
person property could not be seized, so even if a sexual offender
were to use a homeowner's computer that computer could not be
seized.
SENATOR THERRIAULT asked if the "firewall" protection was
specifically directed to child pornography.
REPRESENTATIVE HAYES said he was not sure of the answer.
SENATOR COWDERY asked where the money goes after the sale of seized
property.
CHAIRMAN TAYLOR said there were people on teleconference who could
probably answer that question but there were other questions to be
addressed at that point.
SENATOR THERRIAULT said he also had a concern with the definition
of child pornography and wondered if the statute had a good
definition.
SENATOR ELLIS responded there was a good definition in the statute.
Number 808
SENATOR ELLIS said people receive a lot of unsolicited information
through email. He asked if someone viewed unsolicited child
pornography and then deleted it, would they have to download the
offensive material or would just looking at it cause a person to be
caught up in a criminal investigation.
REPRESENTATIVE HAYES said a person would not be convicted of a
crime for looking at an unsolicited pornographic email.
SENATOR ELLIS said the intent appears aimed at the person producing
the material and distributing it through the Internet, presumably
for money.
REPRESENTATIVE HAYES said money does not have to be involved for
this to be a crime.
SARGEANT CHUCK KOPP, Alaska Peace Officers Association (APOA),
speaking via teleconference from Kenai, thanked Representative
Hayes for introducing HB 32. He said the intent for the seized
equipment was for law enforcement use. When seized equipment is
sold the money goes into a municipal general fund and it is not
immediately appropriated back to the department but this rarely
occurs because seized equipment is usually put to immediate use for
law enforcement purposes. He said evidence had to be downloaded to
the hard drive and stored before the state could collect it. This
was to protect people who receive unsolicited email or people who
might want to view pornography. Viewing is different from
possessing something on a hard drive. Sergeant Kopp said APOA
supported HB 32.
CHAIRMAN TAYLOR noted for the record that:
The purpose of this law, as I discern it, is to remove
this equipment from its criminal use. That it is sold or
destroyed or utilized by enforcement is really
irrelevant. And I would hope that this record is not
becoming one of 'the department needs these tools so
therefore we'll pass a law to confiscate and forfeit
equipment.' That's really kind of a bad public policy to
be discussing, I think, sets the wrong tone. I'm
reviewing this legislation because I believe this
equipment needs to be removed from the criminal element.
If sold, the general fund or the department or if it's a
municipality might have some additional resources. We
confiscate, utilize, and even sell aircraft, boats, and
automobiles. They don't always end up being utilized
merely by the department and I don't want to give anybody
in the listening audience or anybody considering this
legislation, the thought that it is being passed solely
for the purpose of going out and confiscating a few hot
computers so we can take - that we wouldn't provide for
the department through their budget. In fact, I happen
to know an area of the department's budget where they
could have a million dollars today if they'd just tell
one prima donna to quit flying around on an airplane.
Nobody seems to want to do that but needless to say it
would buy an awful lot of good computers.
Number 1265
LIEUTENANT DUNNIGAN, Department of Public Safety (DPS), testifying
via teleconference, said the department supported HB 32. He said
that if the court determined the equipment should be forfeited it
would be turned over to the Department of Administration and sold.
The money would then go into the general fund unless the court
specifically assigned it for a law enforcement need or purpose.
MR. MARC POESCHEL, Coordinator for the Interior Alaska Forces Task
Force, testifying via teleconference, said the task force has all
the agencies in the Fairbanks area working together to combat
computer crime. HB 32 would remove equipment from offenders,
forcing them to buy new equipment if their intent was to offend
again. He said HB 32 sends the message that Alaska will not put up
with that type of crime. He said the task force supports HB 32.
Number 1481
CHAIRMAN TAYLOR said the sentence structure on page 1, line 9 may
be incorrect and could be clearer. The sentence reads:
INTENT. The legislature recognizes these forfeitures as
in personam and, as a matter of consistency and fairness,
instructs the courts to continue to provide, as they
consider reasonable, remission to innocent parties who
have an ownership interest in the equipment forfeited.
CHAIRMAN TAYLOR said in personam refers to title, ownership, and
use, whereas, in rem refers to the forfeiture of an object.
REPRESENTATIVE HAYES said that language was presented the day HB 32
was heard on the House Floor and the body approved it. He said he
was amenable to any clarification of the language.
CHAIRMAN TAYLOR said he would like legal services to redraft the
bill for a clearer definition.
SENATOR ELLIS asked how soon the chairman expected the changes.
CHAIRMAN TAYLOR responded he expected the changes by Monday.
SENATOR THERRIAULT asked if HB 32 was to be held for final action
or should there be a conceptual amendment.
CHAIRMAN TAYLOR said he would like to see the new bill before
moving it out of committee.
SENATOR THERRIAULT said his preference would be to have the new
language in "plain English."
CHAIRMAN TAYLOR announced HB 32 would be held until Monday.
Number 2301
SB 161-NO PAY FOR JUDGES UNTIL DECISION
SENATOR DONLEY acknowledged a previous hearing on SB 161 and said
there had been a discussion with representatives from the court
system and they felt that six month terms were an appropriate time
for the initial decision of a case. The CS before the committee
would change the time from four months back to six months and there
would be a 12 month limit for appellate courts for which there is
no effective limit now. There would now be six months for the
initial decision and six months for the final decision. SB 161
also provides a two month time to assist with new judges who have
not heard an oral argument for a case they have been assigned.
SENATOR THERRIAULT thanked Senator Donley for making those changes.
CHAIRMAN TAYLOR said he had been involved in a teleconference with
the Alaska Judicial Council and discussed with Chief Justice Fabe
and members of the council some of the concerns they had about
pending legislation. He was pleased with the council's response
and their willingness to work with the legislature and the court
system.
SENATOR THERRIAULT moved to adopt CSSB 161(JUD), \O Luckhaupt, as
the working document of the committee. There being no objection,
CSSB 161(JUD) was adopted.
Number 1949
MS. STEPHANIE COLE, Administrative Director, Alaska Court System,
testifying via teleconference from Anchorage, said the new CS was
still problematic. The proposed legislation, in its original form
and the new CS, is almost certainly unconstitutional because of the
doctrine of separation of powers as elaborated in the three main
cases she discussed with the committee at the previous hearing.
The cases dealt with the efficient and effective functioning of the
court system, which was a matter of court administration within the
exclusive authority of the judicial branch. The cases found
constitutional flaws based on the impairment clause and the
prohibition against issuing judicial salaries during terms of
office.
MS. COLE said the CS still had a provision that would stop an
appellate judge or justice's salary if an opinion or decision was
not issued within one year, regardless of the assignment of that
case, and this was fundamentally unfair. SB 161 would make a
justices salary dependant on factors totally beyond his or her
control. She said a justice could be doing his or her job in an
efficient and timely manner and could individually be meeting all
time standards, but that person's paycheck would stop if the entire
court did not issue an opinion in a certain time frame. The judge
or justice in that circumstance would have no control over the
actions or inactions of the other justices. She said there was no
other provision like that in any law that the court system has been
able to locate.
MS. COLE said there were 20 cases before the supreme court that
were over one year in age. Those 20 cases are out of 465 cases
before the supreme court, 220 of which are fully briefed and
awaiting opinion. Out of the 220 cases, 20 are over one year in
age. The 20 cases are different from the majority of cases the
court handles, being more complex and more likely to have a split
decision. If SB 161 were to pass and become effective, all
paychecks for the supreme court would immediately stop. This would
precipitate a challenge to SB 161 especially since the rule was a
no excuses rule, not allowing a good cause exception, which allows
for time to be exceeded or extended for good cause. It seems
likely that a challenge to a provision like that would call in to
question the constitutionality of the whole scheme, not just the
provision. The supreme court has no ability to control the number
of cases that come before it. Since there is a right to one appeal
per case as a matter of right, the only way to ensure that the
supreme court would have the control to allow it to meet these
deadlines would be to create an intermediate court of civil
appeals, as reflected by the fiscal note. Also reflected in the
fiscal note are two additional staff positions for the criminal
court of appeals. Additional judicial resources may be needed to
meet the 12-month deadline in the criminal court of appeals but the
fiscal note just reflects two additional staff people.
MS. COLE explained that under Section 2 of the CS the courts
administrative director was required to report certain information
to the lieutenant governor. Salary warrant information and
information about why a judge or justice had not been issued a
salary warrant is the type of information that would need to be
reported, and the court has no problem with doing that if the
information is readily available. The other information described
would be impossible to gather and would not produce meaningful
data. The provision requires data on all opinions and decisions,
the counting of those opinions and decisions, and to report the
time frame of those decisions and opinions. She said judges make
dozens of decisions every day and it would be impossible, with the
courts current computer system, to identify all the actions that
constitute opinions and decisions of a judicial officer and to
collect that data.
MS. COLE said the current legislation uses very general language
about when the time starts running on when a decision has to be
made. SB 161 instead attempts to detail the milestone at which the
time period under advisement begins to run. The milestone for
supreme court cases in which no oral argument is requested is
defined as the filing of the last responsive pleading. That is not
an appropriate milestone because there is no justice to write the
decision at that point. These cases would be scheduled for
conference discussions on the same track and the same time frame as
cases for which oral argument has been requested. So if two cases
are filed on the same day and only one case has requested oral
argument, conference would occur in the oral argument case
immediately following the oral argument. Conference would be
scheduled on the non-oral argument case within a week of either
side of the oral argument. In that way the court ensures that no
advantage or disadvantage occurs as a result of a request for oral
argument. The initial conference is when the court meets on that
case for the first time and decides on a tentative ruling and the
case is assigned to a justice for preparation of the decision. The
initial conference therefore is the milestone at which time periods
should start to run against an assigned justice.
MS. COLE said SB 161 represents an unconstitutional violation of
separation of powers and the structure it seeks to impose on the
appellate court, which can result in a judge or justice losing a
paycheck through no fault of that person.
Number 2301
SENATOR DONLEY told Ms. Cole he would be happy to entertain any
changes she suggested for Section 2 as far as clarifying what types
of decisions or opinions are being referred to. The difference
between the final oral argument and a non-oral argument and when
they are assigned would be made up by the additional 6 months
provided.
MS. COLE said an initial conference would be more appropriate than
last responsive pleading as a milestone for supreme court opinions.
SENATOR DONLEY said that did no good because there would not be a
conference, it would be delayed. That would not be an objective
standard because it would be under the control of the judiciary,
which could give itself unlimited time for making a decision by
just not having an initial conference.
MS. COLE said the court recognized and agreed that time limits were
something that had to be a concern and unnecessary delays had to be
avoided.
SIDE B
SENATOR DONLEY moved to add a delayed effective date of January 1,
2004, which would add a new section. That would give the court
more than two years to clean up its docket of cases that are more
than two years old.
CHAIRMAN TAYLOR asked if committee members understood the new
motion. There were no questions and no discussion. There being no
objection, amendment 1 passed.
CHAIRMAN TAYLOR said the constitution provides that the Alaska
legislature, by a two-thirds vote of each house, can amend court
rules. He asked if the rule the legislature was amending was only
effective on the parties.
MS. COLE said she would like to think about that answer and respond
in writing.
CHAIRMAN TAYLOR thanked her for her candor. He said the
legislature was the body under the constitution that creates the
jurisdiction of the courts and it is the only one empowered to
create courts. As a consequence of being the body that has the
authority to create the system, it has no authority over that body
once it has been created. He said the legislature was not trying
to bring about a constitutional challenge or conflict, but it was
asking for assistance to find a way to solve cases faster so that
justice would not be delayed through denial.
Number 2168
MS. COLE said the supreme court of Indiana ruled in a case on the
issue of payroll salary warrants, and the ruling was that even
though a statutory court, created by the legislature, derives its
judicial powers from the constitution, it was no more subject to
regulation by the legislature than courts created by the
constitution itself. It decided that once a court was created its
powers come from the constitution and not from the legislature.
SENATOR DONLEY moved CSSB 161(JUD) from committee with individual
recommendations.
SENATOR ELLIS objected. He said that specific questions had been
asked of the court and that it would be prudent to wait for those
answers before moving the bill out of committee.
CHAIRMAN TAYLOR said that SB 161 had been in committee for quite
some time and he wanted to send it to the Finance Committee where
they could look at these questions.
A roll call vote was taken with Senator's Donley, Cowdery,
Therriault, and Chairman Taylor voting yea and Senator Ellis voting
nay. CSSB 161 moved from committee with individual
recommendations.
There being no further business to come before the committee,
Chairman Taylor adjourned the meeting at 2:44 p.m.
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