Legislature(2001 - 2002)

02/20/2002 01:42 PM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                    ALASKA STATE LEGISLATURE                                                                                    
                   SENATE JUDICIARY COMMITTEE                                                                                 
                        February 20, 2002                                                                                       
                            1:42 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                                                                                                            
                                                                                                                              
SENATE BILL NO. 273                                                                                                             
"An Act extending the termination date of the Board of Governors                                                                
of the Alaska Bar Association."                                                                                                 
     MOVED SB 273 OUT OF COMMITTEE                                                                                              
                                                                                                                                
CS FOR HOUSE BILL NO. 40(FIN)                                                                                                   
"An Act  providing for the revocation  of driving privileges  by a                                                              
court for  a driver convicted  of a violation  of traffic  laws in                                                              
connection with a fatal motor vehicle  or commercial motor vehicle                                                              
accident;   amending  Rules   43   and  43.1,   Alaska  Rules   of                                                              
Administration; and providing for an effective date."                                                                           
     HEARD AND HELD                                                                                                             
                                                                                                                                
SENATE CONCURRENT RESOLUTION NO. 25                                                                                             
Relating to the public trust for fish and wildlife in Alaska.                                                                   
     MOVED CSSCR 25 OUT OF COMMITTEE                                                                                            
                                                                                                                                
PREVIOUS COMMITTEE ACTION                                                                                                     
                                                                                                                                
No previous action recorded.                                                                                                    
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
Pat Davidson, Legislative Auditor                                                                                               
Legislative Audit Legislative Affairs Agency                                                                                    
P.O. Box 113300                                                                                                                 
Juneau, AK  99801-3300                                                                                                          
POSITION STATEMENT:  Supports SB 273                                                                                          
                                                                                                                                
Deborah O'Regan, Executive Director                                                                                             
Alaska Bar Association                                                                                                          
510 L. St., Suite 602                                                                                                           
Anchorage, AK  99501                                                                                                            
POSITION STATEMENT:  Testified on SB 273                                                                                      
                                                                                                                                
Mauri Long, President                                                                                                           
Alaska Bar Association                                                                                                          
510 L. St., Suite 602                                                                                                           
Anchorage, AK  99501                                                                                                            
POSITION STATEMENT:  Testified on SB 273                                                                                      
                                                                                                                                
Steve Conn, Executive Director                                                                                                  
Alaska Public Interest Research Group                                                                                           
P.O. Box 10-1093                                                                                                                
Anchorage, AK 99510                                                                                                             
POSITION STATEMENT:  Testified on SB 273                                                                                      
                                                                                                                                
Annie Carpeneti, Assistant Attorney General                                                                                     
Criminal Division, Department of Law                                                                                            
P.O. Box 110300                                                                                                                 
Juneau, AK  99811-0300                                                                                                          
POSITION STATEMENT:  Supports HB 40                                                                                           
                                                                                                                                
Mark Campbell                                                                                                                   
P.O. Box 3075                                                                                                                   
Palmer, AK  99645                                                                                                               
POSITION STATEMENT:  Supports HB 40                                                                                           
                                                                                                                                
Albert Taylor                                                                                                                   
No address given                                                                                                                
POSITION STATEMENT:  Supports HB 40                                                                                           
                                                                                                                                
Mary Marshburn, Director                                                                                                        
Division of Motor Vehicles, Department of Administration                                                                        
3300B Fairbanks St.                                                                                                             
Anchorage, AK  99503                                                                                                            
POSITION STATEMENT:  Testified on HB 40                                                                                       
                                                                                                                                
Dale Bondurant                                                                                                                  
Alaska Constitution Legal Defense and Conservation Fund                                                                         
31864 Moonshine Dr.                                                                                                             
Soldotna, AK  99669                                                                                                             
POSITION STATEMENT:  Supports SCR 25                                                                                          
                                                                                                                                
Jesse VanderZanden, Executive Director                                                                                          
Alaska Outdoor Council                                                                                                          
P.O. Box 73902                                                                                                                  
Fairbanks, AK  99707                                                                                                            
POSITION STATEMENT:  Supports SCR 25                                                                                          
                                                                                                                                
Austin Ahmasuk                                                                                                                  
Nome, AK                                                                                                                        
POSITION STATEMENT:  Opposes SCR 25                                                                                           
                                                                                                                                
Don Johnson                                                                                                                     
Soldotna, AK                                                                                                                    
POSITION STATEMENT:  Supports SCR 25                                                                                          
                                                                                                                                
Warren E. Olson                                                                                                                 
Alaska Constitutional Legal Defense Conservation Fund                                                                           
No address given                                                                                                                
POSITION STATEMENT:  Supports SCR 25                                                                                          
                                                                                                                                
Ted Popely, Majority Counsel                                                                                                    
Majority Legal Office                                                                                                           
State Capitol, Rm. 116                                                                                                          
Juneau, AK  99801                                                                                                               
POSITION STATEMENT:  Testified on SCR 25                                                                                      
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
TAPE 02-05, SIDE A                                                                                                            
                                                                                                                                
CHAIRMAN  ROBIN  TAYLOR  called  the  Senate  Judiciary  Committee                                                            
meeting  to order  at 1:42  p.m.   Present  were Senator  Cowdery,                                                              
Senator Therriault and Chairman Taylor.   Senator Ellis arrived at                                                              
1:45  p.m. and  Senator Donley  arrived at  2:10 p.m.   The  first                                                              
order of business was SB 273.                                                                                                   
                                                                                                                                
                                                                                                                                
         SB 273-EXTEND BOARD OF GOVERNORS OF AK BAR ASSN                                                                    
                                                                                                                                
MS. PAT  DAVIDSON, Legislative  Auditor,  said in accordance  with                                                              
statutes Legislative Budget and Audit  conducted a sunset audit of                                                              
the Board of  Governors of the Alaska Bar Association  (Bar).  The                                                              
conclusion  they  reached  was  the  Bar  is  functioning  and  is                                                              
providing  qualified  applicants for  licensure  to  the State  of                                                              
Alaska.  They  found the Bar is working generally  in an efficient                                                              
and effective  manner.  Therefore  they recommend  the legislature                                                              
extend the termination date of the Bar until June 2006.                                                                         
                                                                                                                                
MS. DAVIDSON said they made a couple  of recommendations.  But she                                                              
did  not  think they  are  of  import  that  it would  affect  the                                                              
extension date of the Bar at all.                                                                                               
                                                                                                                                
CHAIRMAN  TAYLOR  said  as  usual   her  department  had  done  an                                                              
excellent job and he thanked her  and her staff for the quality of                                                              
work he had seen over the last several years.                                                                                   
                                                                                                                                
SENATOR THERRIAULT said  a concern had been expressed  to him over                                                              
whether  the Bar  should  conduct  itself more  like  a board  and                                                              
commission.  He  asked if that was something that  she reviewed or                                                              
heard about.                                                                                                                    
                                                                                                                                
MS. DAVIDSON  said one of the questions  that had come  up was the                                                              
fact that  the Bar  Association does  act more independently  with                                                              
regard  to  its  budget  than most  Executive  Branch  Boards  and                                                              
Commissions.   They did a little  research on that.  She  said she                                                              
was not  an attorney  and could not  succinctly put the  argument.                                                              
It has  to do  with the  Alaska Constitution  providing the  court                                                              
system with certain powers and duties  to administer itself.  This                                                              
Bar Association  function comes under  that.  It is by  court rule                                                              
that the fees are paid the way they  are.  So the Supreme Court is                                                              
the administering  body of the Bar  Association.  She  expected an                                                              
attorney could give  them a more succinct explanation  of that but                                                              
it has  to do with  it being wrapped  up in what  the Constitution                                                              
gives the Supreme Court in terms  of ability and then it goes into                                                              
the court rules.                                                                                                                
                                                                                                                                
SENATOR THERRIAULT said  the court system is a  separate branch of                                                              
government but the legislature still  budget for them.  He said he                                                              
did not believe even in the budget  they pass for the court system                                                              
that the Bar function is a subset  in that budget.  He believed it                                                              
appeared nowhere.                                                                                                               
                                                                                                                                
MS. DAVIDSON  said that was true.   While the court  system budget                                                              
itself does go through the legislative  process this one does not.                                                              
It is not included in the court system's  budget.  For all intents                                                              
and purposes it is off budget.                                                                                                  
                                                                                                                                
SENATOR THERRIAULT  said there was  some question of  whether that                                                              
is what it should be.                                                                                                           
                                                                                                                                
MS. DEBORAH O'REGAN,  Executive Director, Alaska  Bar Association,                                                              
said it is  correct that the Bar  is under the judicial  branch of                                                              
the government.   It is correct that they do not  find them in the                                                              
court system budget because the Bar  Association receives no state                                                              
funding  whatsoever.   All  the funding  for  the Bar  Association                                                              
comes from bar member dues, admission  fees, seminar fees and that                                                              
kind of thing.  All the money is  privately raised.  They have not                                                              
received any money from the state  since 1986 when the legislature                                                              
last gave them  some funding for the public members  on the board.                                                              
There are three public members on  the board that are appointed by                                                              
the governor and  the Bar Association does pay for  the travel and                                                              
per diem for those public members.                                                                                              
                                                                                                                                
SENATOR  THERRIAULT said  in the  current statute  all boards  and                                                              
commissions have to be self-funding  basically and they do that by                                                              
raising licensing fees.   Those monies do come into  the state and                                                              
they  have to  be appropriated  back out  for that  function.   In                                                              
addition, boards and licensing commissions  have to make sure they                                                              
are not overcharging.   There is a function so that  if they raise                                                              
more money than it takes to perform  the function then the fees go                                                              
down  the next  year.   Part  of  the question  he  had heard  was                                                              
whether that  same mechanism  is available  to attorneys  that pay                                                              
the Bar fee and if not why not.                                                                                                 
                                                                                                                                
MS. O'REGAN  said the Alaska Bar  Act Statute does give  the board                                                              
the  power  and  the  duties  to   set  the  budget  for  the  Bar                                                              
Association and  to expend  money.  She  thought because  they are                                                              
not a  state agency  but rather  an instrumentality  of the  state                                                              
they  don't  have  the  same requirements  as  all  of  the  state                                                              
agencies  because  they  are  not  a  state  agency  they  are  an                                                              
instrumentality of the state under Alaska Statute.                                                                              
                                                                                                                                
MS. MAURI LONG, President, Alaska  Bar Association, apologized for                                                              
her late arrival.  She said she heard  a good part and thought Ms.                                                              
O'Regan had answered well.  She said  they are not responsible for                                                              
setting themselves up  but did not hear the question  initially so                                                              
was not  sure if there  was anything she could  add.  She  said if                                                              
they had specific questions she would be happy to answer them.                                                                  
                                                                                                                                
MR.  STEVE  CONN,  Executive  Director,   Alaska  Public  Interest                                                              
Research Group  (AKPIRG), said the  testimony he would  share with                                                              
the committee was  created and is being communicated  to them by a                                                              
subset of their operation, Barbara  Williams, who is the President                                                              
of Alaska Injured  Workers Alliance.  She  provides representation                                                              
of  a voluntary  and  lay nature  to  injured  workers engaged  in                                                              
workers  compensation hearings  in both  administrative and  court                                                              
hearings.  He said he would be speaking as if he were her.                                                                      
                                                                                                                                
MR. CONN explained  these hundreds of workers,  including one that                                                              
she was  working with at  that minute, cannot find  representation                                                              
because  only a  handful of  attorneys  take workers  compensation                                                              
cases.   Some of these  people suffer  not only from  the physical                                                              
disability  but  also  from  mental illness.    Almost  all  these                                                              
injured workers  confront licensed Alaskan attorneys  on the other                                                              
side.  She asked  the Bar repeatedly to spot  check hearings where                                                              
attorneys represent  one side but not the other to  see if ethical                                                              
violations or  other unusual or  overbearing conduct occurs.   She                                                              
did not seek  attendance at every hearing but  spot-checking.  The                                                              
Bar  refuses saying  that its  budget is  insufficient and  people                                                              
like these  should file ethics  complaints.  These  clients cannot                                                              
tell when ethical violations occur.                                                                                             
                                                                                                                                
He said  the Legislative  Audit encourages  the  Bar to make  sure                                                              
lawyers on the  referral list are qualified.  But  what it doesn't                                                              
mention is  that many of  the people who  call the lawyers  on the                                                              
list  to whom they  are referred  are  turned down.   He said  Ms.                                                              
Williams knows this  is the case with workers  compensation cases.                                                              
There is really  only one attorney  on the list.  All  the private                                                              
attorneys refer injured workers to  her.  He noted that on page 21                                                              
where they  have the statistics,  320 people, and  something close                                                              
to  that  each  and  every  year,  sought  referrals  for  workers                                                              
compensation in  2001.   He asked where  they went and  who helped                                                              
them.  The Bar  does not follow up to discover  how many referrals                                                              
actually  took place  and what  service  was received.   In  other                                                              
words there  is no quality or  consumer evaluation except  when it                                                              
comes in  the form of an ethics  complaint.  The  referral process                                                              
becomes mere window dressing.                                                                                                   
                                                                                                                                
MR. CONN  said Ms. Williams  concluded by  urging them  to mandate                                                              
evaluation from the consumer perspective  of the referral process.                                                              
She urged them to  mandate spot checks by the ethics  staff of the                                                              
board  the administrative  and  judicial hearings  where  licensed                                                              
attorneys  come  up against  un-represented  working  people.   He                                                              
urged them  to seek  an amendment  to the  composition of  the Bar                                                              
Association to include  not just any public member  but one who is                                                              
familiar  with  the  masses  of people  who  must  either  be  un-                                                              
represented or helped by a volunteer.   She thanked the committee.                                                              
                                                                                                                                
CHAIRMAN  TAYLOR asked Mr.  Conn to  carry his  words back  to Ms.                                                              
Williams.   He said  the bill is  before them  and it is  probably                                                              
because it is a target of opportunity  to criticize the Bar who at                                                              
least tries to have some level of  referrals.  The true villain in                                                              
this process  is the legislature.   The last time they  did one of                                                              
those group grope  operations where they brought  in the employers                                                              
and all the  unions, they sat down  and cut a deal  that basically                                                              
sold  the injured  workers  of our  state  right  down the  river.                                                              
Sadly what  happened is  an attorney  cannot charge an  attorney's                                                              
fee to a workers  compensation client.  That fee  can only be paid                                                              
by  the Workers  Compensation  Board.   The  Workers  Compensation                                                              
Board has been set up with a schedule  of payments and fees and so                                                              
on that makes  it almost impossible for anyone  to represent folks                                                              
in the workers  compensation field and make money  doing it.  What                                                              
they probably ought  to do in the legislature is  mandate that all                                                              
doctors in  the state have  to do appendectomies  for free  and we                                                              
will see how many  appendectomies get done too.   They won't do it                                                              
either.                                                                                                                         
                                                                                                                                
CHAIRMAN TAYLOR said the real problem  is right here in Juneau and                                                              
he would be happy  to work with anyone who wishes  to address that                                                              
problem and take  it on.  But the forces allied  against them come                                                              
both from  the private  sector and  the union  sector.   They felt                                                              
they made  the best deal  they could and  they don't want  to open                                                              
that can  of worms without recreating  that entire task  force and                                                              
spending a couple of years to do it.                                                                                            
                                                                                                                                
He said  Ms. Williams  is absolutely  correct in her  frustration.                                                              
He said as an attorney who has not  done workers compensation work                                                              
for many years,  he continually finds himself  referring people to                                                              
Chancy Crofts  office in Anchorage in  the hope he may  be able to                                                              
find time  to help  them.   He is  one of the  only ones  Chairman                                                              
Taylor knew  of doing the  work.  It  is a very frustrating  thing                                                              
and he believes  the Bar probably shares the level  of frustration                                                              
that Ms.  Williams talked  about.   If somebody  can find  a third                                                              
party negligence growing  out of a workers compensation  case they                                                              
will usually  find somebody that will  take the case in  the hopes                                                              
they can then  seek subrogation against the third  party defendant                                                              
and actually  get some  level of  compensation  for the amount  of                                                              
work they have done.  In Alaska today  very few people are willing                                                              
to work for nothing and that is about  what it amounts to when you                                                              
take on a workers  compensation case.  He said  he appreciated Ms.                                                              
Williams'  comments very  much and  Mr.  Conn taking  the time  to                                                              
bring them before the committee.                                                                                                
                                                                                                                                
MR. CONN  said he would  return to the  office and  share Chairman                                                              
Taylor's thoughts with her.                                                                                                     
                                                                                                                                
CHAIRMAN TAYLOR said if Mr. Conn  can find support for that effort                                                              
he pledged to him  that he would help lead that  attack because it                                                              
desperately needs to  be done.  The injured workers  of Alaska are                                                              
not being taken  care of.  He  said he guaranteed when  workers go                                                              
into a  court room the insurance  industry has the  best attorneys                                                              
money can  buy standing  there beating  the heck  out of  them and                                                              
doing video tapes  of them and all kinds of other  things and they                                                              
have a whole cadre of doctors that  in his opinion are little more                                                              
than  prostitutes   for   the  insurance   industry.    There   is                                                              
legislation pending  for that because of the  notorious reputation                                                              
that many of these  doctors have.  They always seem  to show up at                                                              
workers compensation  hearings and  they can  never find  that the                                                              
worker  was  ever  injured  and they  just  happen  to  be  making                                                              
thousands and  thousands of dollars  every year off  the insurance                                                              
industry.  Chairman  Taylor said it is a major problem  and one he                                                              
would be  happy to work  on.  He  believed many others  around the                                                              
legislature  felt as he  does and  would be  willing to  work with                                                              
them on it.  He  told Mr. Conn if he wants to  take this one on it                                                              
is an 800-pound gorilla.                                                                                                        
                                                                                                                                
SENATOR  COWDERY  made  a  motion  to  move SB  273  to  the  next                                                              
committee of referral  with individual recommendations.   He asked                                                              
for  unanimous consent.    There being  no  objection, the  motion                                                              
carried.                                                                                                                        
                                                                                                                                
                                                                                                                                
          HB 40-REVOKE DRIVER'S LIC. FOR FATAL ACCIDENT                                                                     
                                                                                                                              
MS.   ANNE  CARPENETI,   Assistant   Attorney  General,   Criminal                                                              
Division, Department of Law (DOL),  said HB 40 addresses a problem                                                              
that  does not arise  very  often but  when it does  it creates  a                                                              
serious  public safety  problem.   It  also  can create  a lot  of                                                              
anguish  in the family  of victims  who are  killed in  automobile                                                              
accidents.                                                                                                                      
                                                                                                                                
She  described the  situation  when a  motor  vehicle accident  is                                                              
caused by a person who violates a  traffic law but does not commit                                                              
a crime but non-the less a death  is caused.  HB 40 addresses this                                                              
situation by requiring the court  to revoke the driving privileges                                                              
for one year of  a person who is convicted of  violating a traffic                                                              
law and the violation  was a significant contributing  cause of an                                                              
accident resulting in the death of another person.                                                                              
                                                                                                                                
MS.  CARPENETI explained  that  specifically  before this  license                                                              
revocation can occur:                                                                                                           
   · First a judge must find beyond a reasonable doubt that the                                                                 
     person committed the traffic violation.                                                                                    
  · Then by clear and convincing evidence the court must find;                                                                  
        o The person was operating the motor vehicle that was                                                                   
          involved in the accident.                                                                                             
       o The accident caused the death of another person.                                                                       
        o The violation of the traffic law was a significant                                                                    
          contributing factor in causing the accident and death.                                                                
                                                                                                                                
She said the bill does allow a court  to consider a request by the                                                              
driver  for  limited  driving  privileges.    If  the  person  can                                                              
establish  that his  or  her ability  to earn  a  living would  be                                                              
severally impaired  by loss  of driving  privileges the  court can                                                              
issue a limited license for that  purpose.  In the House Judiciary                                                              
Committee they  added another possibility  for a  limited license.                                                              
If  the person  can establish  that his  or her  ability would  be                                                              
severely impaired  to give assistance  as a primary care  giver to                                                              
another  person  who  is  disabled the  court  could  entertain  a                                                              
request for a limited license.                                                                                                  
                                                                                                                                
MS. CARPENETI  said when  people drive  in an  unsafe way  even if                                                              
they do not commit  a crime but cause the death  of another person                                                              
their  privilege  to drive  should  be  revoked to  protect  other                                                              
drivers  on  the road,  their  passengers  and people  walking  on                                                              
roads.                                                                                                                          
                                                                                                                                
CHAIRMAN  TAYLOR explained  he did  not  have a  problem with  the                                                              
thrust of the  bill.  It was  again a mandatory minimum,  which he                                                              
always opposed in  the court system, because he  thought mandatory                                                              
minimums become the  sentence.  For example they  have a three-day                                                              
mandatory  minimum on  drunk  driving so  what  does every  single                                                              
drunk driver  get, three  days.   He said  it is called  mandatory                                                              
minimum but judges  never seem to read the word minimum.   They do                                                              
not give longer sentences because  they get scared as soon as they                                                              
pop somebody  for ten  or fifteen  days on  a first offense  every                                                              
public  defender   is  going  to   make  certain  that   they  are                                                              
disqualified  from  ever  doing  a  drunk  driver  case.    Public                                                              
defenders probably should  act on the behalf of their  client.  He                                                              
said  these things  sound  like  they are  somewhat  discretionary                                                              
within  the  law  but once  they  establish  these  parameters  of                                                              
mandatory revocation they become  the only revocation.  He said he                                                              
was concerned about that aspect of it.                                                                                          
                                                                                                                                
CHAIRMAN  TAYLOR  gave  an  example   of  the  other  aspect  that                                                              
concerned him.   A single mom commuting home from  work has picked                                                              
both  her kids  up.   She  slides on  the  ice and  has a  one-car                                                              
accident.  She  doesn't impact anyone else.  The  car flips around                                                              
a couple  of times  and one of  the children is  killed.   Now she                                                              
just  lost one of  her children  and on  top of  that somebody  is                                                              
going to say she  had been driving to fast for  road conditions or                                                              
whatever  because every  officer  that shows  up at  a wreck  site                                                              
feels  compelled  to find  some  violation  for the  wreck  having                                                              
occurred.    Accidents  don't happen  anymore  it was because  you                                                              
violated something.   He asked if they would suspend  her driver's                                                              
license for  one year when  she has already  lost a child  in this                                                              
process.  He  said he was not  talking about some drunk  driver or                                                              
someone that is negligently driving and killing some stranger.                                                                  
                                                                                                                                
MS. CARPENETI  said  that was correct,  if she  was driving  drunk                                                              
they could revoke  her license for that reason.   She said she did                                                              
share his  frustration about mandatory  minimums.  She  thought it                                                              
was shocking  that everybody  who  is convicted  goes to jail  for                                                              
three days because drunk driving  cases can be really varied.  She                                                              
said in a sense this was not a mandatory  minimum because there is                                                              
no range.   It is a  mandatory one-year.    They don't  range from                                                              
one to five years it's a one-year revocation.                                                                                   
                                                                                                                                
MS. CARPENETI  said the person  Chairman Taylor was  talking about                                                              
would  have  to be  convicted  and  proven  to have  violated  the                                                              
traffic  ordinance beyond  a reasonable  doubt  by a  court.   She                                                              
would be given a  court appointed council and a jury  trial in the                                                              
endeavor  to  determine whether  or  not  she  was guilty  of  the                                                              
traffic violation.   Then  the court would  have to find  by clear                                                              
and convincing evidence that whatever  violation she was convicted                                                              
of  was a  significant contributing  factor  to the  death of  her                                                              
child.    Ms.  Carpeneti  understood  that  would  be  a  terrible                                                              
situation for  any person  to be  in but maybe  she should  not be                                                              
driving her other child who is still alive.                                                                                     
                                                                                                                                
CHAIRMAN TAYLOR  said you are going  to keep her off the  road for                                                              
one year.  That is what you are going to do.                                                                                    
                                                                                                                                
MS. CARPENETI  said under the circumstances  but the court  has to                                                              
jump through many hoops before it  can come to that determination.                                                              
By the possibility  of a driver's license loss she  would have the                                                              
right to court appointed  counsel and a trial by  jury and some of                                                              
the other guarantees attended on a criminal case.                                                                               
                                                                                                                                
CHAIRMAN  TAYLOR said  he  did not  think  the  committee had  any                                                              
concerns or  objections to the  25 year old  doing a 100  mph down                                                              
the  Glen Highway  and crossing  the  meridian or  something.   In                                                              
those  instances the  prosecutors  office,  our district  attorney                                                              
would normally  be charging negligent  homicide, seeking  a felony                                                              
charge and some  serious time in jail.  He said as  far as he knew                                                              
our  people  are  not  reluctant  to do  that.    This  person  is                                                              
distracted  for a moment  and instead  of stopping  on the  yellow                                                              
light has  gone on through it  and t-boned somebody in  the middle                                                              
of an intersection.   Accidents do  happen and yes there  may have                                                              
been a violation  but in this instance  all you need prove  is any                                                              
violation of any traffic law.                                                                                                   
                                                                                                                                
MS. CARPENETI said it would have to be a moving violation.                                                                      
                                                                                                                                
CHAIRMAN  TAYLOR said those  are his  concerns it  is not  that he                                                              
does  not  support the  concept,  he  does.    He thought  it  was                                                              
probably another  tool in  the toolbox that  they may need  but he                                                              
had those concerns and appreciated her answers.                                                                                 
                                                                                                                                
SENATOR THERRIAULT  said he  appreciated Chairman Taylor's  stated                                                              
concerns because  he had  a lot of  the same  ones.  Accidents  do                                                              
happen but  the person who  puts the pedal  to the metal,  that is                                                              
not an  accident, that is  a choice.   The person that  drinks too                                                              
much has made  a choice.  The  person that is spinning  his wheels                                                              
and doing  the brodies, that  is a choice.   He said  the scenario                                                              
that Chairman Taylor laid out is  one, and there are others, where                                                              
this is just going too far.                                                                                                     
                                                                                                                                
SENATOR  THERRIAULT   said  last  year  Representative   Fate  and                                                              
Representative   Coghill  and   himself  met   with  a  group   of                                                              
constituents in  his district that  live out on Chena  Hot Springs                                                              
Road.   They expressed  a lot of  concern with  the fact  that the                                                              
privilege on our  highways was so often used as a  club to try and                                                              
shape the  actions of  the public.   It  is little consolation  to                                                              
them when  you say, we  have not taken  away your right  to travel                                                              
about the community  when it is 40 below zero and  you live out at                                                              
40-mile Chena  Hot Springs Road.   If they cannot drive  their car                                                              
you  have taken  away their  access, their  ability, because  many                                                              
times they  can not even  go to a  neighbor next door  because the                                                              
neighbor is maybe a mile away.  He  had concerns over the need for                                                              
the legislation.                                                                                                                
                                                                                                                                
MS. CARPENETI  said it  was brought to  their attention  by people                                                              
who have lost  loved ones under these circumstances.   For example                                                              
where the  driver of a  car had fallen asleep.   This is  a really                                                              
common problem not only in Alaska  but throughout the country.  It                                                              
is a  common driving problem  to fall  asleep and then  cross over                                                              
the centerline  and kill  somebody.   They may  only have  a small                                                              
fine  for doing  so.   It  seemed to  her  for the  safety of  the                                                              
driving  public it would  be worthwhile  for that  person to  take                                                              
some time off  driving and maybe jump through  the hoops necessary                                                              
to get a drivers license back after  it had been revoked before he                                                              
or she thinks  about driving when he  or she is to tired  or takes                                                              
their eyes off the road and causes  such serious damage.  She said                                                              
there were  people on  the teleconference  that might help  inform                                                              
the committee of the concerns that they brought to DOL.                                                                         
                                                                                                                                
SENATOR  ELLIS  asked about  the  language  "contributing  factor,                                                              
significant factor" and asked her to talk them through that.                                                                    
                                                                                                                                
MS. CARPENETI explained it is on  page 2 of the bill.  These terms                                                              
are terms judges use and apply all  the time.  The court must find                                                              
a person  guilty of violating the  traffic law by proof  "beyond a                                                              
reasonable doubt" and the person  must have a lawyer and the right                                                              
to a jury  trial if he or she  chooses.  If a person  is convicted                                                              
of a traffic law  the court will revoke the privilege  to drive if                                                              
the court  finds by "clear and  convincing evidence".   "Clear and                                                              
convincing  evidence"   is  a  higher  standard   than  "beyond  a                                                              
reasonable doubt".   You have to clearly show  that the individual                                                              
was driving  the motor vehicle  in a car  that was involved  in an                                                              
accident.   The  accident caused  another person's  death and  the                                                              
violation of the traffic law was  a significant contributing cause                                                              
of the  accident.  So  the court would have  to make a  finding by                                                              
clear and  convincing evidence, the real  crux of it is,  that the                                                              
violation  of the  traffic law  was  the significant  contributing                                                              
cause  of the  accident  that resulted  in  the  death of  another                                                              
person in  order to loose  their license  under this bill.   These                                                              
are term that  courts use all the time;  significant, contributing                                                              
cause.    She  did  not  think  there  would  be  a  problem  with                                                              
definitions.                                                                                                                    
                                                                                                                                
SENATOR  DONLEY asked  what happened  to these  people after  they                                                              
lost their license and they go ahead and drive without it.                                                                      
                                                                                                                                
MS. CARPENETI  said they would hope  they did not but if  they did                                                              
then they would be committing a crime.                                                                                          
                                                                                                                                
SENATOR DONLEY asked what was the punishment for that crime.                                                                    
                                                                                                                                
MS. CARPENETI said  she thought that was a maximum  of one year in                                                              
jail.                                                                                                                           
                                                                                                                                
SENATOR  DONLEY  said that  was  the  maximum  but was  there  any                                                              
minimum.                                                                                                                        
                                                                                                                                
MS. CARPENETI said she did not believe so.                                                                                      
                                                                                                                                
CHAIRMAN TAYLOR  said he thought  there was additional  revocation                                                              
of license.                                                                                                                     
                                                                                                                                
MS.  CARPENETI said  for conviction  there could  a revocation  of                                                              
license and she thought for the first one it was only 60 days.                                                                  
                                                                                                                                
CHAIRMAN  TAYLOR said  they used  to have a  mandatory minimum  on                                                              
that.   It was  like five or  ten years and  we had people  caught                                                              
driving that couldn't get their license for 30 some years.                                                                      
                                                                                                                                
MS. CARPENETI said yes that used  to be the most serious mandatory                                                              
penalty in the state in the 70's.                                                                                               
                                                                                                                                
CHAIRMAN  TAYLOR asked  if she  thought  right now,  in answer  to                                                              
Senator Donley's question,  it was probably 60 days  for the first                                                              
violation.                                                                                                                      
                                                                                                                                
MS. CARPENETI  said that was right.   For conviction of  the first                                                              
offense and then  one year for the second and three  years for the                                                              
third.                                                                                                                          
                                                                                                                                
SENATOR DONLEY  asked when you are  saying 60 days are  you saying                                                              
the maximum allowable.                                                                                                          
                                                                                                                                
MS.   CARPENETI  said   additional  revocation   of  license   for                                                              
conviction.                                                                                                                     
                                                                                                                                
SENATOR  DONLEY  said he  remembered  voting  against a  piece  of                                                              
legislation  about ten  years  ago that  revoked  an existing  law                                                              
where  it was  a mandatory  ten days  in jail  if you  drove on  a                                                              
suspended license.                                                                                                              
                                                                                                                                
MS.  CARPENETI said  that was  a  time before  they had  mandatory                                                              
terms.  That was the most serious  mandatory sentence in the State                                                              
of Alaska in the 70's.                                                                                                          
                                                                                                                                
SENATOR DONLEY  said now  we don't  have any  minimum for  a first                                                              
time violation for driving without a license.                                                                                   
                                                                                                                                
MS. CARPENETI  said she was looking  at the revocation.   Under AS                                                              
28.15.181  the  first  offense  would  be 60  days  revocation  of                                                              
license.                                                                                                                        
                                                                                                                                
SENATOR DONLEY  said and no mandatory  jail time.  Of  course they                                                              
have  already lost  their  license for  a year  then  we take  the                                                              
license for another 60 days.                                                                                                    
                                                                                                                                
CHAIRMAN  TAYLOR said  Senator Donley  brought up  a major  issue,                                                              
directly related to this.  They have  set up a lot of laws so they                                                              
are going  to result,  especially with  Driving While  Intoxicated                                                              
(DWI), in revocation of a driving  privilege or the opportunity to                                                              
get one  for some  term of years.   They  just keep driving;  they                                                              
just go use  somebody else's car  and they just keep driving.   It                                                              
is kind of  like this hoop thing;  you are always trying  to catch                                                              
up with the end  of it.  From his discussions  with state troopers                                                              
and  city  police  officers  it  is  a  continuing  and  expanding                                                              
problem.  They are not insured, they  don't have a drivers license                                                              
but they are  out there driving to  and from work and  they may be                                                              
legally driving down the road but  they are illegal and should not                                                              
be there.  He thought it is a concern many of them shared.                                                                      
                                                                                                                                
MS. CARPENETI  said they shared that  concern.  This  bill doesn't                                                              
necessarily  address repeat  drivers  driving  with their  license                                                              
suspended or revoked but that is a concern because we all drive.                                                                
                                                                                                                                
SENATOR THERRIAULT  said along that  line just look at  the police                                                              
blotter in the newspaper.  They get  caught for drunk driving time                                                              
after  time and  also  for a  suspended license.    That group  of                                                              
people, because of  the drinking, seems to get  caught more often.                                                              
But the  person who just  ran through a  red light or  slipped off                                                              
the road and had  a roll over not because they  were hot roding or                                                              
anything,  they are  not  necessarily going  right  back into  the                                                              
system because they had a perfect  driving record for 30 years and                                                              
just hit the  slick spot the one  time.  They are going  to be out                                                              
there driving  with no  license anyway.   If  we have learned  one                                                              
thing from  the DWI situation it  is that they are going  to drive                                                              
anyway.  He said  he understood the frustration  of family members                                                              
seeing somebody who has caused the  loss of a loved one being able                                                              
to continue  to drive.   But he  thought this  sort of  a solution                                                              
really did not get them anywhere.                                                                                               
                                                                                                                                
SENATOR COWDERY said  if you get pulled over for  a DWI and refuse                                                              
to do the breathalyzer  that was an automatic loss  of license but                                                              
it was  not proven  they were  really under  the influence.   They                                                              
can't take  breath samples without  a search warrant  unless there                                                              
is an accident  involved and somebody  is killed.  He  thought the                                                              
penalties that exist now did not  solve anything.  He thought they                                                              
should have far more stringent penalties.                                                                                       
                                                                                                                                
MS.  CARPENETI said  there  are a  lot of  problems  with DWI  and                                                              
refusing a breathalyzer.  This legislation  really is just focused                                                              
on maybe six to ten accidents that  happen a year that result in a                                                              
death  to a  person by  another person  who was  not committing  a                                                              
crime.   They were not  committing reckless  driving but  may have                                                              
been  driving negligently.   For  that  reason they  are not  safe                                                              
enough drivers.   They  caused a death  because of their  careless                                                              
driving  even though  it  did not  arise  to reckless  driving  or                                                              
criminal negligent homicide or a  crime.  But they were driving in                                                              
a careless manner and for that reason  it seems reasonable to take                                                              
their license  away for a period  of time so maybe next  time they                                                              
won't drive negligently.                                                                                                        
                                                                                                                                
SENATOR  COWDERY said  taking their  drivers  license away  really                                                              
does something.   Does that mean they  are going to take  a cab or                                                              
have  somebody else  drive them  or does  this mean  if you  don't                                                              
catch them  they are  going to drive,  if you  do catch  them then                                                              
what.                                                                                                                           
                                                                                                                                
MS. CARPENETI said if they did drive  they are committing a crime.                                                              
We hope  this would have  some effect  on drivers who  loose their                                                              
license.   She said  she was sure  there are a  lot of  people who                                                              
don't pay attention to court orders  and revocation of license but                                                              
there are people who do.                                                                                                        
                                                                                                                                
MR. MARK  CAMPBELL, Palmer  resident, testified  in support  of HB
40.  He shared from their own experience  having lost their son in                                                              
an accident.   In their circumstances  they had a  19-year-old son                                                              
and he  had a  car full  of kids  with him.   Another vehicle  was                                                              
speeding in  the opposite direction  and that driver  lost control                                                              
of their  vehicle and  collided with their  son's car  killing two                                                              
kids and injuring four others.                                                                                                  
                                                                                                                                
They found there was no recourse  whatsoever.  Within one year the                                                              
same  young man  that caused  that accident  had another  accident                                                              
killing  two  other  young men.    They  feel  there needs  to  be                                                              
something if you  are not under the influence of  alcohol or drugs                                                              
but yet you are  acting irresponsible with a vehicle.   The courts                                                              
need to  determine whether  it is acting  outside of  a reasonable                                                              
manner.  They lost  a son, their good friends lost  their son, and                                                              
four other children  were hurt.  The young man  was speeding, lost                                                              
control of  his vehicle and got a  ticket for speeding.   That was                                                              
it, a ticket for  speeding.  As a family of a  victim he wanted to                                                              
see that  there was  something that would  cause an individual  to                                                              
take some time away from the privilege of driving.                                                                              
                                                                                                                                
MR. CAMPBELL  said there  needs to be  something for  the victim's                                                              
family  from  the person  causing  the  loss.   Sharing  from  his                                                              
experience they found there was nothing  they could do.  Then they                                                              
were terribly  grieved over  the fact that  within a  year another                                                              
two lives were lost in that situation.                                                                                          
                                                                                                                                
CHAIRMAN TAYLOR said  he did not understand on  the first accident                                                              
why he  was not charged with  negligent homicide.   Speeding alone                                                              
resulting  in  death  should  have  been  sufficient  grounds  for                                                              
negligent  homicide and  that is  a felony.   He  asked if he  was                                                              
charged for negligent homicide on the second incident.                                                                          
                                                                                                                                
MR.  CAMPBELL said  on  the second  incident  he  was driving  the                                                              
vehicle and  lost control.   The other  two boys that  were killed                                                              
were not able to testify so there was no witness.                                                                               
                                                                                                                                
In the  first situation  the only eyewitnesses  were in  a vehicle                                                              
that  was in front  of him.   They  viewed his  speed coming  from                                                              
behind so  rapidly that  driver pulled  over.   The only  way they                                                              
could  testify  that they  felt  he  was  speeding was  through  a                                                              
rearview  mirror so again  no eyewitness.   Of  course no  one was                                                              
there to  actually clock that he  was speeding so they  could only                                                              
judge it by the fact there were no  skid marks on the highway.  He                                                              
just simply lost control of his pickup.                                                                                         
                                                                                                                                
CHAIRMAN TAYLOR said  that was a terrible situation  and was sorry                                                              
that Mr. Campbell had to come in  and testify.  He said he thought                                                              
Mr. Campbell  understood  the concerns the  committee had  raised.                                                              
He asked if the family contemplated any form of civil liability.                                                                
                                                                                                                                
MR. CAMPBELL  said they did  go to court not  as a civil  suit but                                                              
simply on  his driving  ticket.   They asked  that rather  than he                                                              
being able to just pay the ticket  they felt the court should have                                                              
him  serve  community service  in  the  area  of hospice  care  or                                                              
something like  that.  Given  the special circumstances  the court                                                              
did that and the young man did not argue.                                                                                       
                                                                                                                                
He was a  young man also, 19 years  old, and they did  not want to                                                              
plague his  life trying to pursue  some sort of payment  for their                                                              
loss.  But  Mr. Campbell felt in  this type of situation  the loss                                                              
of license  for a year  would have been  excellent and  could have                                                              
saved two other lives and possibly cause some growing up.                                                                       
                                                                                                                                
MR. ALBERT  TAYLOR  said his  son was  killed by  the driver  of a                                                              
motor vehicle.   That  driver chose  to operate  his vehicle  in a                                                              
careless, irresponsible and unsafe  manner.  He felt strongly that                                                              
a person  operating a  vehicle carelessly,  breaking traffic  laws                                                              
and killing others should have their  privileges to drive revoked.                                                              
He urged  the committee  to pass HB  40.  It  would help  make our                                                              
roads safer.                                                                                                                    
                                                                                                                                
CHAIRMAN TAYLOR  said he  was sorry for  his loss and  thanked him                                                              
for testifying.                                                                                                                 
                                                                                                                                
MS. MARY  MARSHBURN, Director, Division  of Motor  Vehicles (DMV),                                                              
said  Ms. Carpeneti  adequately  covered  the history  or  reasons                                                              
behind the bill  as well as the specifications of  the bill itself                                                              
and what it intends to do.  She addressed two items.                                                                            
    · The fiscal note reflects there are a very small number of                                                                 
       these incidences each year.  Obviously very painful for                                                                  
       the people who loose family members in these crashes.                                                                    
    · In answer to Senator Donley's question about driving                                                                      
       without a  license.  Driving  without a license  carries an                                                              
       additional  ten days  in  jail  and a  minimum  of 90  days                                                              
       additional  revocation, which  does not  run concurrent  to                                                              
       any existing revocation.                                                                                                 
                                                                                                                                
SENATOR DONLEY said he did not think  there was any mandatory jail                                                              
time for a first time conviction while license is suspended.                                                                    
                                                                                                                                
MS. MARSHBURN  said  she would  be happy  to look  it up but  that                                                              
information came from DMV staff.                                                                                                
                                                                                                                                
CHAIRMAN TAYLOR said the committee  would look into that also.  He                                                              
said  there may  be some  misunderstanding  about how  the law  is                                                              
either applied or how it is currently written.                                                                                  
                                                                                                                                
TAPE 02-05, SIDE B                                                                                                            
                                                                                                                                
SENATOR  DONLEY asked  Ms. Carpeneti  if it  a mandatory  one-year                                                              
suspension no matter what the nature  of the traffic violation was                                                              
if there  is clear and convincing  evidence that the  elements are                                                              
here.                                                                                                                           
                                                                                                                                
MS.  CARPENETI said  that  was correct  but  they have  to have  a                                                              
conviction  and  then  clear  and  convincing  evidence  that  the                                                              
traffic violation was a significant contributing factor.                                                                        
                                                                                                                                
SENATOR DONLEY  said this  could be an  improper lane change  or a                                                              
failure to  signal and there is no  discretion on the part  of the                                                              
judiciary.    He said  in  the eight  years  he  had been  in  the                                                              
legislature  they   had  tried  a  lot  of   mandatory  sentencing                                                              
proposals.   He  thought the  executive branch  had opposed  every                                                              
mandatory  sentence.   The executive  branch wanted  to go  in the                                                              
opposite direction and have less mandatory sentencing.                                                                          
                                                                                                                                
MS. CARPENETI said  this was a license revocation  not a result of                                                              
a conviction of  a crime.  It is a license action  and the purpose                                                              
is to make our  roads safer.  It is not necessarily  completely to                                                              
get this  particular person  off the  road but  to make  our roads                                                              
safer.                                                                                                                          
                                                                                                                                
SENATOR COWDERY  asked in  her mind what  would happen if  in fact                                                              
the one-year  revocation was imposed  but during that  year period                                                              
he was caught driving again.                                                                                                    
                                                                                                                                
MS. CARPENETI  answered he  could be charged  with driving  with a                                                              
license  suspended.   If  he  was driving  and  he  had a  limited                                                              
license  that  would  be  another  issue.    It  depended  on  the                                                              
circumstances.    This revocation  would  be concurrent  with  any                                                              
other revocation in law.                                                                                                        
                                                                                                                                
SENATOR DONLEY  said he noticed the  CS bill had been  referred to                                                              
the Rules  Committee.   He  asked if that  was accurate.   It  was                                                              
originally a Rules Committee bill  and he didn't understand why it                                                              
said  it  was referred  to  the  Rules  Committee.   He  had  some                                                              
question  about the  fiscal  note and  wanted  to know  if it  was                                                              
coming to  the Finance Committee and  he could not tell  that from                                                              
the  bill document.   He  thought there  was something  inaccurate                                                              
about the  referral section.   It did  not say judiciary  but they                                                              
were there hearing it.                                                                                                          
                                                                                                                                
CHAIRMAN  TAYLOR  said  the  referrals   are  judiciary  and  then                                                              
finance.  That was on the referral sheet that came with it.                                                                     
                                                                                                                                
He said he would entertain a motion. No motion was made.                                                                        
                                                                                                                                
SENATOR ELLIS asked for an at ease.                                                                                             
                                                                                                                                
TAPE 02-06, SIDE A                                                                                                            
[Recorded from the net]                                                                                                         
CHAIRMAN TAYLOR called an at ease.                                                                                              
                                                                                                                                
CHAIRMAN  TAYLOR reconvened  the  meeting and  announced he  would                                                              
hold the bill for  a week to try to resolve some  of the concerns.                                                              
He stated it was his intention to move the bill from committee.                                                                 
                                                                                                                                
                                                                                                                                
         SCR 25-FISH & WILDLIFE PUBLIC TRUST/ANILCA SUIT                                                                    
                                                                                                                              
CHAIRMAN TAYLOR,  prime sponsor SCR  25, said it was  a resolution                                                              
relating to  public trust doctrine  as it concerns  the allocation                                                              
of  fish and  wildlife  resources  in the  State  of  Alaska.   He                                                              
prepared a  work draft  which was  before them entitled  Utermohle                                                              
2/18/02 J.  In comparing the work  draft and the original document                                                              
most of the changes  are more stylistic to improve  the wording of                                                              
the document as opposed to major substance changes.                                                                             
                                                                                                                                
SENATOR COWDERY  moved to  adopt the CSSCR  25 (JUD) J  version as                                                              
the working document.                                                                                                           
                                                                                                                                
CHAIRMAN TAYLOR said there being  no objection the document before                                                              
the  committee  is  now  CSSCR  25.    He  believed  it  had  been                                                              
distributed to each of the committee members.                                                                                   
                                                                                                                                
MR.   DALE   BONDURANT,  Alaska   Constitutional   Legal   Defense                                                              
Conservation Fund Incorporated, said  we as individuals and united                                                              
public interest litigants unanimously  support SCR 25.  The Alaska                                                              
Constitutional  Legal  Defense  Conservation  Fund  Incorporated's                                                              
purpose  is to  protect the  rights  of equal  access to  Alaska's                                                              
common property,  fish, wildlife  and water  held in public  trust                                                              
for all citizens.   These equal  access rights are in  jeopardy by                                                              
those who  seek discriminatory  preference  by a prescribed  group                                                              
based on where they live.  Both the  Alaska and U.S. Constitutions                                                              
are  explicit in  their doctrines  of equal  protection under  the                                                              
law.  He said  they must be definite in their  struggle to protect                                                              
that right of  equal access for all personal consumptive  users as                                                              
in  hunting  and fishing  of  Alaska's  common property  fish  and                                                              
wildlife   resources   as   managed   under   the   constitutional                                                              
responsibility within the sustained yield management.                                                                           
                                                                                                                                
MR. BONDURANT said  the public trust doctrine  recognizes that our                                                              
sovereign nation  has a judiciary responsibility  for our elective                                                              
legislative and  administrative government  acting as  trustees of                                                              
the public trust  for fish, wildlife and waters  within Alaska and                                                              
acting in  respect for  beneficiaries for all  people as  a whole.                                                              
This beneficiary must demand that  these trusts be managed for the                                                              
present  and future  generations.     The king  and a  dictatorial                                                              
monarch had  absolute sovereign  power over  the people  and could                                                              
abrogate the common  law intent of protecting  the people's rights                                                              
of  life, liberty  and property  as within  a free  society.   Our                                                              
forefathers wrestled  this absolute  sovereignty and  returned the                                                              
sovereignty  responsibility to  the people  themselves.   Governor                                                              
Tony Knowles wants  the people to vote away the  fundamental equal                                                              
protection  rights of equal  access to  our public fish,  wildlife                                                              
and water renewable resources.                                                                                                  
                                                                                                                                
(Due   to  transmission   difficulties,   this   portion  of   Mr.                                                              
Bondurant's testimony indiscernible)                                                                                            
                                                                                                                                
He concluded  that Congress is without  power to omit  the state's                                                              
cooperation in joint federal/state  programs by legislation, which                                                              
authorizes a state to file under  the equal protection clause.  He                                                              
said he could  sight several cases  that way.  He  appreciated the                                                              
fact SCR 25 had been sponsored and  they totally support the bill.                                                              
                                                                                                                              
CHAIRMAN TAYLOR thanked Mr. Bondurant.   He said Mr. Bondurant was                                                              
involved  with  Mr.  Olson  and  others  in  litigation  currently                                                              
pending before the  Federal District Court in  Anchorage and there                                                              
was a recent decision  on that.  He asked if that  decision in any                                                              
talked to or discussed the public trust doctrine as described.                                                                  
                                                                                                                                
MR. BONDURANT answered yes.  He explained  that Judge Helms' court                                                              
mentioned  that their  claim had  been  as a  public trust  claim.                                                              
Judge Helms further  said they have the right to  pursue the equal                                                              
protection  clause of the  U.S. Constitution  and file  against as                                                              
applied  by the Alaska  National Interest  Lands Conservation  Act                                                              
(ANILCA) Title  8.  But  Judge Helms said  that public trust  is a                                                              
state  right and  as  such they  cannot show  that  they have  the                                                              
ability  or the  right  to  take this  up.     He  said they  were                                                              
contesting  several  of Judge  Helms'  dismissals  along with  the                                                              
equal  footing  rights, the  submerged  lands  act right  and  the                                                              
public trust  right.  They  intend to  further pursue this  in the                                                              
other courts of the federal government.                                                                                         
                                                                                                                                
JESSE  VANDERZANDEN, Executive  Director,  Alaska Outdoor  Council                                                              
(AOC), said AOC  is comprised of about 50 member  clubs, primarily                                                              
outdoor oriented.  They also have  individual memberships and when                                                              
added  up they  have  about  10,000  collective members  that  are                                                              
hunters, fishermen, trappers and outdoor enthusiasts.                                                                           
                                                                                                                                
MR. VANDERZANDEN said  the CS looked to have made  just some minor                                                              
changes none of  which shifted the intent or the  principal of the                                                              
bill.  They  do support it and  he thought Mr. Bondurant  had said                                                              
it very well.  They have been in  communication with Mr. Bondurant                                                              
on  this  issue and  also  on  his  lawsuit.   He  said  generally                                                              
speaking  CSSCR  25 is  a  good expression  of  the  legislature's                                                              
support for their  states rights.  Given what they  have seen over                                                              
the past few  years with regard to the increasing  intervention of                                                              
the federal  government into the  management of fish and  game the                                                              
timing is good, the intent is good and the principal is good.                                                                   
                                                                                                                                
In conclusion  AOC wanted to  thank Senator Taylor  for sponsoring                                                              
the bill,  for moving it  through and for  keeping an eye  on this                                                              
issue.   It is a  good statement of  the legislatures  support for                                                              
trying  to retain  management of  fish and  game by  the State  of                                                              
Alaska.                                                                                                                         
                                                                                                                                
AUSTIN  AHMASUK,  Nome  resident,  said  he  received  the  latest                                                              
working draft of  SCR 25 about four minutes before  his testimony.                                                              
He was not pleased that they had just received it.                                                                              
                                                                                                                                
He said he was an Inupiaq Eskimo  born and raised in Nome, Alaska.                                                              
He is married  and has four children.  Hunting  and fishing around                                                              
Nome is  important to  his culture  and important  in raising  his                                                              
children.   He wanted to  testify in  opposition to SCR  25, which                                                              
would destroy  many aspects of  subsistence livelihood.   He lived                                                              
there  himself   and  would  likely  nurture  his   children  into                                                              
responsible and hard working adults.                                                                                            
                                                                                                                                
MR.  AHMASUK said  challenging the  actions of  the United  States                                                              
Congress in enacting Title 8 of ANILCA  would do great harm to the                                                              
Alaska  Native  and  rural  people   of  the  state  in  terms  of                                                              
subsistence use.   The Alaska Statehood Act and  implementing laws                                                              
were subject to  Aboriginal Title but were outright  ignored until                                                              
the Alaska Native  Claims Settlement Act (ANCSA).   He said SCR 25                                                              
ignores and  wishes to  destroy subsistence  use.  Alaska  Statute                                                              
16.05.258  clearly indicates  that subsistence  shall be  afforded                                                              
for in  times of plenty  and certainly in  times of shortage.   It                                                              
appears  that nothing  in the  Alaska Statehood  Act impaired  the                                                              
ability of  Alaska Natives to  compensation for extinguishment  of                                                              
aboriginal claims,  including subsistence  use.  ANCSA  Section 12                                                              
(b) clearly  indicates that native  land selections where  to take                                                              
into  account  historic  uses  and  subsistence  needs  of  Alaska                                                              
Natives and they are not subject to traditional review.                                                                         
                                                                                                                                
He said he  strongly challenged the  sponsor of the bill  to prove                                                              
the  action being  sought  will not  harm  a long  standing  legal                                                              
mandate that  has been  through many  trials and tribulations  for                                                              
the benefit of  Alaska's first people and those  that have learned                                                              
subsistence and  live it hand and  hand in remote and  rural parts                                                              
of Alaska.  Section 804 of ANILCA  clearly indicates a mandate for                                                              
a   rural  subsistence   priority.     That   legal  mandate   and                                                              
implementing laws should not be infringed  upon in times of plenty                                                              
and  most definitely  in  times of  shortage.    As legal  history                                                              
clearly indicates  Alaska Native people  have been reliant  on the                                                              
resources of the  land and water.  It is clear  competing uses can                                                              
have devastating affects on animal  and fish populations.  Only by                                                              
limiting uses  among users can  animal and fish  populations exist                                                              
for the  benefit of future users  and fulfill the  immediate needs                                                              
of customary  and traditional users  of the resource.   He thanked                                                              
Chairman Taylor for his time and consideration.                                                                                 
                                                                                                                                
MR.  DON  JOHNSON,  Soldotna  resident,   wanted  to  congratulate                                                              
Chairman Taylor for sponsoring SCR  25 and said it had been a long                                                              
time coming.  He said they tried  a lot of avenues to correct this                                                              
problem and he completely agreed with the intent behind SCR 25.                                                                 
                                                                                                                                
He said  the real  shame was the  Governor of  the great  State of                                                              
Alaska dismissed the case they had  before the federal government,                                                              
which  put them  in a  position where  they have  to do  something                                                              
else.    He  agreed  the  Alaska  Constitution  binds  the  Alaska                                                              
Legislature in that  it must perform its duty  as Alaska's trustee                                                              
to protect  the citizens of this  state who are  the beneficiaries                                                              
of  the public  trust for  fish and  wildlife.   He believed  that                                                              
Title  8  of  ANILCA  attempts  to  usurp  the  authority  of  the                                                              
legislature in an attempt to manage  Alaska's fish and wildlife in                                                              
a different way  other than sustained yield.  In  his opinion that                                                              
way would end up destroying the fish  and wildlife in the State of                                                              
Alaska within a matter of time.                                                                                                 
                                                                                                                                
He  said  the  earlier  statement  of  aboriginal  claims  was  an                                                              
incorrect statement in that there  was a two billion dollar payoff                                                              
for aboriginal  claims not  many years ago  to take care  of those                                                              
claims.   Basically all  the people  who were sighting  aboriginal                                                              
claims find often  it is just maybe one percent of  the natives of                                                              
the state.    He  did not  believe that really  applied at  all to                                                              
this situation.    He said  Title 8 was particularly  offensive to                                                              
him  in  that  it reversed  Alaska's  majority  use  position  and                                                              
reformed it  into a federal minority  use position.   The majority                                                              
of residents resides  outside the rural areas of  Alaska and would                                                              
be  totally  excluded  from  participating   in  this  subsistence                                                              
preference  established by  ANILCA.   He said  he did not  believe                                                              
anybody  in  Alaska  wanted  that to  happen,  maybe  the  federal                                                              
government did but nobody around  there did.  He could not believe                                                              
anybody  who really  understands  the intent  behind ANILCA  would                                                              
agree with  that.  He firmly  believed the U.S.  Government signed                                                              
off on  the management  issue when statehood  went through.   They                                                              
actually signed off giving Alaska  the authority to manage its own                                                              
fish  and  wildlife.    Once  that  statehood  contract  had  been                                                              
established it was not a severable  commodity to be rescindable on                                                              
and  off  with  time  according to  whether  or  not  the  federal                                                              
government thinks they are behaving as far as a state goes.                                                                     
                                                                                                                                
MR.  WARREN   E.  OLSON,   Alaska  Constitutional  Legal   Defense                                                              
Conservation Fund  Incorporated, said  he was a 45-year  resident.                                                              
For 25  of those  years he had  been involved  in opposing  and or                                                              
trying to  modify state law and  federal law working  within state                                                              
courts and  federal courts towards  the subject of  discrimination                                                              
caused by Title 8 of ANILCA.  He  supports SCR 25 but did not have                                                              
a copy of the CS.                                                                                                               
                                                                                                                                
MR. OLSON  said he has  a very strong  reason for supporting  this                                                              
action and that is called finality.   When Governor Knowles failed                                                              
to move  forward on  Katie John  v. State  of Alaska he  abandoned                                                              
three quarters of the residents of  Alaska and he avoided finality                                                              
on this  question  of Title  8 and ANILCA.   The  people who  need                                                              
finality  are the legislators,  the administration,  the  Board of                                                              
Game, the Board of Fisheries, the  advisory boards and most of all                                                              
the  resources.   He  said he  was  absolutely  convinced, as  the                                                              
committee had received  strong communications from  him, the folks                                                              
that  normally  would  be  participating  in the  process  of  the                                                              
Fishery  Board and  Game Board  and the  advisory committees  have                                                              
abandoned the process.                                                                                                          
                                                                                                                                
He  had one  suggestion for  the  bill on  page 3.   He  suggested                                                              
strengthening  this resolution on  page 3, line  6 and 7  where he                                                              
would  introduce or  include  and describe  police  powers of  the                                                              
State  of Alaska.   He  said the  licensing, the  seasons and  bag                                                              
limits, responsibility,  means and methods and protection  are the                                                              
sole responsibility of the State of Alaska.                                                                                     
                                                                                                                                
CHAIRMAN TAYLOR  said the  main thrust of  this legislation  is to                                                              
address the issue  from a perspective that has not  yet been taken                                                              
up.   That is  every citizen  of Alaska  wherever  they live  is a                                                              
beneficiary  of the  inherent public  trust that  is given  to the                                                              
assets of  the state that were  conveyed to them at  statehood and                                                              
every  citizen is  the beneficiary  of those  assets.   So if  the                                                              
asset is a  caribou or a deer  or a moose or a bear  every citizen                                                              
in  the  state is  the  beneficiary  of  those fish  and  wildlife                                                              
assets.                                                                                                                         
                                                                                                                                
For example  when  they in  the state  decide to  sell a piece  of                                                              
state land the public trust doctrine  comes into play.  You cannot                                                              
give that away.   You cannot just hand it to someone  and say here                                                              
is a big piece  of Alaska.  They are required  to make certain the                                                              
public's interest in  that land is protected.  You  would not sell                                                              
off all of your coastal waterways  because no one would be able to                                                              
land a ship.  There would be no public  dock or wharf.  You do not                                                              
give away  or sell your entire  resource base or the  public would                                                              
have no  opportunity to dig  clams or to go  get a crab  when they                                                              
wanted  one on  the  shore.   They would  have  no opportunity  to                                                              
harvest a  deer or a bear  for food supply  or for the hide.   All                                                              
these things would then be excluded.                                                                                            
                                                                                                                                
CHAIRMAN TAYLOR  said this public  trust doctrine goes  clear back                                                              
to before  Magna Carta in  England.  The  rights of the  people to                                                              
access   their  resources   had  to   be  protected.     He   said                                                              
interestingly, throughout  history every  court has looked  to the                                                              
legislative  body to protect  the public  trust.  The  legislative                                                              
body  in this  instance,  the House  and Senate  of  the State  of                                                              
Alaska,  are  trustees.    They are  not  just  sitting  there  as                                                              
representatives  of the  people  to vote  on  various things  they                                                              
actually have a  fiduciary responsibility.  Each  of these animals                                                              
and  fish  has  some  value  and the  House  and  Senate  are  the                                                              
guardians of that public trust.                                                                                                 
                                                                                                                                
He gave the example of the Permanent  Fund as a public trust.  For                                                              
all intents  and purposes, it  is a trust  they may use  for state                                                              
purposes it  is a trust  to provide for  the beneficiaries  of the                                                              
trust, every  man, woman  and child  of the State  of Alaska.   He                                                              
asked if  they could imagine  the outcry  that would occur  in the                                                              
State of  Alaska and how fast  they would find each  of themselves                                                              
impeached if they  attempted to say only people living  in a rural                                                              
area  would receive  a permanent  fund check.   He  said the  roof                                                              
would come off that place and it  should because they would not be                                                              
distributing  the public trust  asset in an  equal fashion.   They                                                              
would be  discriminating in the  way they distributed  that public                                                              
trust  asset.   The  very same  thing  is happening  through  this                                                              
federal law.                                                                                                                    
                                                                                                                                
CHAIRMAN TAYLOR said  if that law is not tested  and challenged by                                                              
the legislature  then they  have abrogated their  responsibilities                                                              
as trustees.  He  said the issue is not one of  whether or not you                                                              
believe in subsistence or you believe  in sustenance, which is the                                                              
utilization of  these things  for food that  is not the  question.                                                              
The question  is are  they as  a legislature  in violation  of the                                                              
public trust  doctrine that requires  them to treat  every citizen                                                              
in  Alaska  equally  no  matter what  their  race,  color,  creed,                                                              
national origin, religion and probably  most importantly no matter                                                              
where they  live and will  they be treated  as an Alaskan  citizen                                                              
and an equal beneficiary.  That is the reason SCR 25 is there.                                                                  
                                                                                                                                
He wanted  to say  that because Mr.  Olson had  worked so  long on                                                              
that  and  had  submitted  so  many  different  treatises  to  the                                                              
legislature on the  public trust doctrine.  It is  a doctrine that                                                              
has not been tested in the courts yet.                                                                                          
                                                                                                                                
CHAIRMAN TAYLOR asked Ted Popely  how many years he had worked for                                                              
the House and Senate Majority.                                                                                                  
                                                                                                                                
MR. TED POPELY, Majority Legal Counsel, answered seven years.                                                                   
                                                                                                                                
CHAIRMAN TAYLOR  asked if during  that time a major  percentage of                                                              
his  time  has  been  spent  on   issues  revolving  around  state                                                              
sovereignty and Title 8 ANILCA.                                                                                                 
                                                                                                                                
MR. POPELY, answered yes.                                                                                                       
                                                                                                                                
CHAIRMAN  TAYLOR  asked  if  he   could  give  the  committee  his                                                              
impression of  the public trust doctrine  and whether or  not this                                                              
litigation,  should  it  be  brought  by  the  Alaska  Legislative                                                              
Council would lie and have jurisdiction.                                                                                        
                                                                                                                                
MR. POPELY answered the public trust  doctrine itself is certainly                                                              
a  viable  claim  in  a  case  like   this  revolving  around  the                                                              
allocation  of state  resources.   It  is  a substantial  doctrine                                                              
steeped  in lots  of  history and  case  law around  the  country.                                                              
Chairman Taylor was  right; it has not been litigated  within this                                                              
context of subsistence and Title 8.  So it is a viable claim.                                                                   
                                                                                                                                
He said  the second part  of his question  as to whether or  not a                                                              
claim would lie  with the Legislative Council is  a more difficult                                                              
question.  It is  a lot harder to answer.  They  obviously faced a                                                              
lot of difficulty in pursuing litigation  as a legislative body as                                                              
opposed  to the Department  of Law  because of  the separation  of                                                              
powers doctrine.   He thought their chief concern  in this case is                                                              
procedural rather than substantive.   Substantive arguments can be                                                              
made, they  are valid,  they are  strong arguments  and the  court                                                              
would certainly rule  on those.  They would hope  that it would be                                                              
in  their favor.    He said  "Procedurally,  I  think, the  bigger                                                              
hurtle is getting the legislature  as the party in question before                                                              
the court on this question."                                                                                                    
                                                                                                                                
CHAIRMAN TAYLOR asked  if he had the chance yet to  do research on                                                              
the  issue  of  who  represents  the  people  under  public  trust                                                              
litigation.                                                                                                                     
                                                                                                                                
MR. POPELY said  he had done some  work in that area.   He said it                                                              
is general legislative  bodies like Chairman Taylor  had said, who                                                              
are referred to in the public trust  analysis as protectors of the                                                              
resource and  that makes sense.   Logically it is  the legislative                                                              
bodies who  are the policy-making bodies  of states.  They  are in                                                              
charge  of course  of  passing laws  that govern  the  use of  the                                                              
resources.   Public trust doctrine  mandates that  those decisions                                                              
be made in  a fair and equitable  and reasonable manner  and is of                                                              
course what the public trust doctrine stands for.                                                                               
                                                                                                                                
CHAIRMAN   TAYLOR  said   the   legislature   was  generally   the                                                              
appropriate  body to  bring the  litigation.   In  fact there  are                                                              
several  cases   where  legislatures  have  been   found  to  have                                                              
standing,  which  is  the  critical   question.    They  had  been                                                              
frustrated in the attempts of the  past brought by the legislature                                                              
to  join  in  suits  or  to  maintain  suits  after  the  governor                                                              
dismissed them.                                                                                                                 
                                                                                                                                
MR. POPELY said courts have analyzed  the situation in Alaska with                                                              
the separation  of powers  that we  have in  our constitution  and                                                              
have read  that generally to mean  the administration is  the body                                                              
that brings  litigation on  behalf of  the state.   That  is where                                                              
they have  run into  difficulty trying to  litigate some  of these                                                              
issues as  a legislature or a  subunit of the  legislature through                                                              
legislative council.                                                                                                            
                                                                                                                                
CHAIRMAN TAYLOR said that was why  he referred to those other list                                                              
of cases  where state legislatures  themselves have been  found to                                                              
have standing  even if the executive  chose not to sue  because of                                                              
the unique responsibility  that the legislature has  as trustee of                                                              
those public trust assets.                                                                                                      
                                                                                                                                
MR. POPELY said yes that has occurred.  It certainly has.                                                                       
                                                                                                                                
SENATOR  ELLIS  said  let  us  say   this  went  forward  and  the                                                              
legislature were to pursue this.   He asked Mr. Popely if he could                                                              
give him  a dollar figure, high  dollar of low dollar  figure, for                                                              
this being pursued to finality.                                                                                                 
                                                                                                                                
MR. POPELY  said he did  not know  if he could.   That is  a tough                                                              
question  and he  had not  thought about  it in  terms of  dollars                                                              
bringing a case like this.  He said  he supposed that the realm of                                                              
possibility is  quite wide.   It could be  done in house  in which                                                              
case there  would be very little  expenditure all the  way through                                                              
hiring outside counsel  which of course this legislature  has done                                                              
in the  past, which could  prove to be  quite expensive.   That is                                                              
probably more of  a policy question for their  colleagues than for                                                              
him.  He said he really did not know.                                                                                           
                                                                                                                                
SENATOR ELLIS said  he posed the same question  to Chairman Taylor                                                              
as an  attorney and  as someone  familiar with  this and  probably                                                              
envisions how he  would like to see all this unfold  with the best                                                              
and the brightest.  He asked how many years and how much money.                                                                 
                                                                                                                                
CHAIRMAN TAYLOR said he did not think  it would cost all that much                                                              
if in  fact they  kept it in  house and  joined in the  litigation                                                              
already pending.  The Alaska Constitutional  Defense Fund case was                                                              
referred to  by Mr.  Bondurant and Mr.  Olson is already  pending.                                                              
It already  survived several  challenges through summary  judgment                                                              
and all the state would have to do  would be to interplead in that                                                              
as  an additional  plaintiff  and  advocate  on the  public  trust                                                              
doctrine on behave  of the people of Alaska.  That  was the aspect                                                              
of the  case they  were told  they could  not bring  individually.                                                              
They are advocating  on their own behalf at this  point and so the                                                              
court has  allowed them  to move forward  on the equal  protection                                                              
argument.   A major  portion  of that  case from  the time it  was                                                              
filed was on the public trust doctrine  itself and the court found                                                              
that they  did not have  standing to  represent the people  of the                                                              
State of  Alaska.  He  thought tacitly  what the court  was saying                                                              
was the  legislature itself is  the true trustees  and responsible                                                              
for the  people  on these issues.   The  case law  they have  seen                                                              
would indicate that  the legislature itself can  intervene on that                                                              
suit on  behalf of  all the people  of Alaska  and then  have that                                                              
portion of that case litigated.                                                                                                 
                                                                                                                                
He said it would  probably go to the Ninth Circuit  Court and from                                                              
the Ninth  Circuit on to  the Supreme  Court.  They  were probably                                                              
looking at period  of time of at least five to  six years but that                                                              
would be a quicker  finality than anything he knew  of right then.                                                              
With the  dismissal of the  Katie John  case they lost  their last                                                              
chance at  some absolute finality  from the Supreme Court  on this                                                              
very contentious issue.                                                                                                         
                                                                                                                                
CHAIRMAN TAYLOR said if it is kept  in house they are probably not                                                              
looking at anything more than the  salaries of the people they are                                                              
currently hiring  and paying  to do some  of the very  same stuff.                                                              
At some juncture they may have to go beyond that.                                                                               
                                                                                                                                
SENATOR DONLEY moved SCR 25 the CS  (JUD) as adopted the J version                                                              
from committee with individual recommendations.                                                                                 
                                                                                                                                
SENATOR ELLIS objected.                                                                                                         
                                                                                                                                
CHAIRMAN TAYLOR called for a roll call vote.                                                                                    
                                                                                                                                
The motion  to move CSSCR 25  from committee carried  with Senator                                                              
Donley, Senator Therriault, and Chairman  Taylor voting "yea," and                                                              
Senator Ellis voting "nay."                                                                                                     
                                                                                                                                
The meeting was adjourned at 3:10 p.m.                                                                                          
                                                                                                                                
                                                                                                                                

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