Legislature(1997 - 1998)
02/26/1997 01:40 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SENATE JUDICIARY COMMITTEE February 26, 1997 1:40 p.m. MEMBERS PRESENT Senator Robin Taylor, Chair Senator Drue Pearce, Vice-chair Senator Mike Miller Senator Sean Parnell Senator Johnny Ellis MEMBERS ABSENT None COMMITTEE CALENDAR HOUSE BILL NO. 120 "An Act relating to the power of the attorney general to waive immunity from suit in federal court; and providing for an effective date." PASSED HB 120 OUT OF COMMITTEE SENATE JOINT RESOLUTION NO. 3 Proposing an amendment to the Constitution of the State of Alaska limiting the rights of prisoners to those required under the Constitution of the United States. PASSED CSSJR 3(JUD) OUT OF COMMITTEE SPONSOR SUBSTITUTE FOR SENATE JOINT RESOLUTION NO. 10 Proposing amendments to the Constitution of the State of Alaska relating to the election and the duties of the attorney general. HEARD AND HELD SENATE BILL NO. 67 "An Act relating to the imposition of criminal sentences; and amending Rule 32.2, Alaska Rules of Criminal Procedure." PASSED CSSB 67(JUD) OUT OF COMMITTEE SENATE BILL NO. 41 "An Act relating to environmental audits and health and safety audits to determine compliance with certain laws, permits, and regulations." HEARD AND HELD PREVIOUS SENATE COMMITTEE ACTION HB 120 - No previous Senate committee action. SJR 3 - See Senate Judiciary minutes dated 2/5/97 and 2/19/97. SJR 10 - See Senate Judiciary minutes dated 2/19/97. SB 67 - See State Affairs Committee minutes dated 2/04/97. SB 41 - See Senate Labor & Commerce Committee minutes dated 1/23/97, 1/28/97, and 1/30/97 and Senate Judiciary Committee minutes dated 2/24/97. WITNESS REGISTER Representative Bill Hudson Alaska State Capitol Juneau, Alaska 99801-1182 POSITION STATEMENT: Sponsor of HB 120 Joanne Grace Assistant Attorney General Department of Law 1031 W 4th Ave., Suite 200 Anchorage, AK 99501-1194 POSITION STATEMENT: Supports HB 120 Senator Dave Donley Alaska State Capitol Juneau, Alaska 99801-1182 POSITION STATEMENT: Sponsor of SJR 3 Dean Guaneli Assistant Attorney General Department of Law P.O. Box 110300 Juneau, Alaska 99811-0300 POSITION STATEMENT: Commented on SJR 3 Tuckerman Babcock Legislative Assistant Alaska State Capitol Juneau, Alaska 99801-1182 POSITION STATEMENT: Testified for Senator Green, sponsor of SJR 10 Jim Baldwin Assistant Attorney General Department of Law P.O. Box 110300 Juneau, Alaska 99811-0300 POSITION STATEMENT: Testified against SJR 10 Justice Thomas Stewart Alaska Court System P.O. Box 114100 Juneau, AK 99811-4100 POSITION STATEMENT: Testified against SJR 10 Justice S.J. Buckalew, Jr. 3124 Antioch Circle Anchorage, AK 99508 POSITION STATEMENT: Testified against SJR 10 Paul Sweet P.O. Box 1562 Palmer, AK 99645 POSITION STATEMENT: Commented on SB 67 Margot Knuth Assistant Attorney General Department of Corrections 240 Main St., Suite 700 Juneau, AK 99801 POSITION STATEMENT: Commented on SB 67 ACTION NARRATIVE TAPE 97-13, SIDE A Number 00 CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to order at 1:40 p.m. Senators Miller, Parnell and Taylor were present. The first matter before the committee was HB 120. HB 120 STATE IMMUNITY FROM SUIT IN FED COURT SUSAN COX , Chief of the Civil Division, Department of Law, noted her presence and offered to answer any questions the committee may have on the tort aspect of HB 120. REPRESENTATIVE BILL HUDSON , sponsor of HB 120, gave the following overview. He introduced HB 120 in concert with the Department of Law and other legal counsel because the State of Alaska is presented with a rare opportunity to improve its situation in two pending court cases. The Eleventh Amendment to the U.S. Constitution prohibits suits against states in federal court from damages brought by citizens of that state but on occasion it is procedurally advantageous for a state to waive its Eleventh Amendment immunity to have a case heard in federal court. The Attorney General may waive the State's immunity only by express authority of the Legislature; HB 120 provides that consent. There are two such cases before the State at this time. The first case is Peratovich v. United States where the State is asserting tideland ownership in the Tongass National Forest. This case creates a prime opportunity for the State to assert that ownership, but absent its ability to get into the federal court case, the State has no standing. The second case is the Smith v. State and Melba Joseph et.al. v. State in which the State has been sued by approximately 150 residents of Hooper Bay because of excess floride in Hooper Bay's public water system. In this case, a fair allocation for apportionment of tort claims against both the federal and state governments can only occur if the case is heard in federal court, because the federal government can only be sued in federal court. The purpose of HB 120 is to allow the Attorney General flexibility to favorably position the State in these two lawsuits. CHAIRMAN TAYLOR commented he has discussed this case thoroughly with Joanne Grace and appreciates the opportunity available to the State. He has been assured by Ms. Grace the Administration, for some political reason, will not bail out on this case after getting it started. Number 100 JOANNE GRACE , Assistant Attorney General, testified she believes the State will prevail in the tidelands case because it has a very strong case for ownership of submerged lands. If the Department of Law was able to bring suit directly against the United States, it would do so immediately but in light of jurisdictional problems, it would like to use this case as a vehicle for litigation. CHAIRMAN TAYLOR asked, if the State were to take corporate lands conveyed to one of the regional corporations under ANILCA that abut the waters of Southeast Alaska, whether a conflict with sovereignty claims extended to those lands would exist, as opposed to the claims the State may make on lands adjacent to those properties. MS. GRACE did not believe that would be a problem as to tidelands in territorial sea, because when the United States conveys the uplands abutting those areas, it doesn't generally purport to convey the tidelands or the territorial sea. That is not true, however, of the inland waters in the Tongass. If the United States takes the position that it has defeated the State's title to the inland waters in the Tongass, then those waters, navigable, or non- navigable, would be owned by Native Corporations and could be subject to Indian Country sovereignty claims. This case will only address tidelands in territorial sea. If the State prevails on tidelands in territorial sea, it will help the State's position on inland waters as well. Number 141 SENATOR PARNELL said he was considering amending the title of HB 120 to maintain the narrow focus and prevent any mischief by the Legislature. CHAIRMAN TAYLOR reminded Senator Parnell it is a house bill. SENATOR MILLER moved CSHB 120(JUD) out of committee with individual recommendations. There being no objection, the motion carried. SJR 3 PRISONER RIGHTS LIMITED TO FEDERAL RIGHTS SENATOR DAVE DONLEY , sponsor of SJR 3, stated the latest proposed committee substitute makes crystal clear that this measure impacts only the rights of prisoners convicted of crimes. Regarding the Department of Law's question as to whether, by modifying the existing criminal administration section of the Constitution, other types of ancillary rights might be granted, he said creating separate sections clarifies the intent of the legislation. Number 191 SENATOR MILLER moved to adopt CSSJR 3(JUD), version 0-LS0268\F, as the working draft. There being no objection, the motion carried. DEAN GUANELI , Assistant Attorney General, agreed with Senator Donley's assessment that the new version of SJR 3 is cleaner regarding the rights of prisoners. He cautioned committee members, however, not to expect passage of this legislation to automatically overturn the Cleary settlement. CSSJR 3(JUD) may establish one more reason for the Court to give relief from judgment under the Civil Rules, but it does not guarantee that result. Given that the State is in contempt of the Cleary settlement, it is in a weak position to argue for relief and even if the State did get relief from the Cleary order, it would only mean the State would be back in the litigation mode. SENATOR MILLER moved CSSJR 3(JUD) out of committee with individual recommendations. There being no objection, the motion carried. SJR 10 ELECTION OF ATTORNEY GENERAL TUCKERMAN BABCOCK , legislative aide to Senator Green, sponsor of SJR 10, told committee members he was awaiting a draft committee substitute to propose for the committee's consideration, as well as several amendments suggested by Mr. Chenoweth of the Division of Legal Services. Number 280 JIM BALDWIN , Assistant Attorney General, noted he asked Judge Stewart and Judge Buckalew, delegates to the Constitutional Convention, to address the committee on the constitutional debate on the election of the attorney general. He also provided, to committee members, a full transcript of the debate at the 1956 Convention about whether to establish positions of an attorney general and secretary of state in Alaska. He highlighted other aspects of the memorandum he sent to committee members in the following testimony. MR. BALDWIN stated the fiscal note is speculative and reflects the way the resolution was drafted. The biggest cost item stems from the fact the Attorney General's Office would be required to provide legal representation for all public corporations of the State, including the University of Alaska and the Alaska Railroad Corporation. To estimate costs, he spoke to officials in Washington State to determine how things might operate in Alaska if the attorney general is elected. SJR 10 proposes the attorney general share the general election ticket with the governor and lieutenant governor, however that does not prevent some differences of opinion between the individuals involved. In Washington State, some very closely held executive functions, now exercised by the attorney general on behalf of the Governor, such as bill drafting and clemency matters, have devolved upon an in-house counsel in the Governor's Office. The standard cost of a senior level attorney is about $150,000, including support and benefits. If this kind of situation was to be further multiplied because other principal department heads had philosophical differences with the attorney general, the cost would increase substantially. Also, several cost items are not reflected in the fiscal note because they cannot be quantified. MR. BALDWIN pointed out the attorney general would be responsible for not only civil and criminal matters under SJR 10, but also infractions and violations. Currently, that function is delegated to lay personnel in other departments. If district attorneys had to represent the State in those matters, a tremendous expense would be incurred. In summary, Mr. Baldwin stated the Department of Law does not support SJR 10. JUDGE THOMAS STEWART gave the following testimony. JUDGE STEWART: Gentleman, this is a subject that I've contemplated and been concerned about for at least 50 years and in the course of that time I have become adamantly opposed to the idea of electing the attorney general. In order to express adequately my views, it's desirable to go back to the very roots of the scheme of American government, both state and national: the idea of three separate branches with checks and balances among and between them. I propose to address the subject at several levels: the basic theory; Alaskan governmental history; personal and practical experience with the alternative systems; leading opinions of prominent students of the subject; observation on consequences of such a scheme; explanations of examples from other states; and miscellaneous observations. The basic theory is set out in The Federalist, in the papers written by Alexander Hamilton, primarily No. 70, dated March 18, 1788. "There is an idea, which is not without its advocates, that a vigorous executive is inconsistent with the genius of republican government. The enlightened well wishers to this species of government must at least hope that the supposition is destitute in foundation; since they can never admit its trials without at the same time admitting condemnation of their own principles...." It is worth noting that word "republican" with a small "r". Ours is a government of representatives, not a true democracy, which would be like a New England town meeting, where all the townspeople gather to discuss and vote on the issues. Obviously, this is not possible at the national level, nor in large cities, nor in the whole State of Alaska. The critical complex decision, such as on the structure of the executive branch, must be made by the representatives of the people, and that is you. (Judge Stewart continued reading from The Federalist.) "...Energy in the executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks: it is not less essential to the steady administration of the laws, to the protection of property against those irregular and high-handed combinations, which sometimes interrupt the ordinary course of justice, to the security of liberty against the enterprises and assaults of ambition, of faction and of anarchy. A feeble executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution: and a government ill executed, whatever it may be in theory, must be in practice a bad government. The ingredients which constitute energy in the executive are unity - duration - and adequate provision for its support - competent powers. The ingredients which constitute safety in the republican sense are, a due dependence on the people - a due responsibility. Those politicians and statesmen, who have been the most celebrated for the soundness of their principles, and for the justness of their views, have declared in favor of a single executive and a numerous legislative. They have with great propriety considered energy as the most necessary qualification of the former, and have regarded this as most applicable to power in a single hand; while they have with equal propriety considered the latter as best adapted to deliberation and wisdom, and best calculated to conciliate the confidence of the people, and to secure their privileges and interests. This unity may be destroyed in two ways; either by vesting the power in two or more magistrates of equal dignity and authority; or by vesting it ostensibly in one man, subject in whole or in part to the control and cooperation of others, in the capacity of counsellors, to him. Of the first, the two counsels of Rome may serve as an example; of the last we shall find examples in the constitutions of several of the states." The Constitutional Convention delegates debated this issue intensely. It was the single focus of the committee on the executive branch. In addition, the full Convention itself intensely scrutinized it for at least one full day. Committee debates during the Convention could not be recorded, therefore Mr. Baldwin's transcript is of the debate by the full Convention. The delegates were lead by George McLaughlin who said: "The blunt fact is that there is a general misconception as to the function of the attorney general. The attorney general is a lawyer and his opinion is the equivalent of any other lawyer's. It can be attacked. Any recommendation he makes, if acted upon, can always be attacked in the courts by private citizens. His opinion is barely worth the paper it is written upon. It's impressive upon the state and the officials are bound by it until some irate taxpayer attacks it and the actions taken under the authority of it, and the courts can promptly overrule it." The concept of an attorney general's opinion must not be confused with a judicial opinion. A judicial opinion covers two sides - and reviews adversarial treatment of an issue, and is binding. That does not happen in an AG's opinion - no one is bound by an attorney general's opinion. There is a good example of the exercise of energy by the Governor. Alaska spent millions pursuing tax claims against oil companies. Governor Hickel and Attorney General Cole settled those cases through an energetic exercise of authority. That kind of energy would be frustrated if the two positions were at odds. The decision to settle was a policy decision, and a loyal attorney general executed it for the Governor. The Governor is the person charged by the people to fix and carry out state policy. The Governor is accountable to the people. An elected attorney general could undercut the Governor and hinder his ability to execute policy. If an attorney general cannot support the governor's policy, he must resign. There are many authorities opposed to electing the attorney general. Thomas Dewey, a friend of Ernest Gruening, was defeated by Harry Truman in 1948. He came to Alaska to visit Gruening and knew statehood was sought. His advice was, from his experience as Governor of New York, "Whatever you do, do not elect the attorney general." Jay Hammond is adamantly opposed to the election of the attorney general. Recently, he was my houseguest for several days, and we discussed this matter. He said that although he was a Republican, he appointed Av Gross, a Democrat, as Attorney General, knowing of his abilities. Republicans objected, but Gross was one of the best of the attorneys general. There is a good analogy. A corporation, such as IBM, hires a CEO to fix and carry out the policies of the Board of Directors. The CEO can be likened to the Governor, while the Board of Directors to the Legislature, and the stockholders to the general public. If the chief counsel to the CEO were to be elected by the stockholders, it wouldn't work because stockholders are simply not able to determine who should be in that position. We have this big enterprise of the State. To have its chief counsel elected by thousands upon thousands of people who can't possibly know the merits of the individual candidates for elected attorney general could not possibly be a reliable determinant of who ought to be the Governor's counsel. I hear it said, "But there are 40 states that elect the Attorney General." In order to understand that, we need to look at history. Those provisions were put there in the 19th Century. It may be that there are one or two in the early part of the 20th Century, but the modern Constitutions of the 20th Century do not do that, because they have the benefit of hindsight and saw the problems that evolved from this kind of a governmental structure. Probably the leading Constitutional Convention was that of New Jersey, which I think was in 1946, and New Jersey did exactly what we subsequently did, and structured an executive branch with a single unified head who can choose who should be his associates and who then is held accountable, responsible to the electorate for what he does. As I said earlier, it's a mistaken notion somehow of democracy - that somehow the people are going to get a representation that is more democratic - small "d" - if they elect the attorney general. Believe me, it's not so. That's a failure to understand the role of the attorney general. Citizens from the street can't go in and ask the attorney general for an opinion. He would say, "That's not my job." Surely, he represents the people but he only does that through his boss, the Governor, who likewise represents the people, more broadly than he does. There's another aspect to it. If you elect the attorney general, that cuts across the entire spectrum of the executive branch. It affects the opinions that are given to each and every department, each and every functionary in the executive branch. When I was an assistant attorney general - there were two of us at the time - a gentleman named John Dimond and I were the assistant attorneys general. And we saw our boss, J. Gerald Williams, interpose his own policy ideas, inject them into the operations of the departments he was giving advice to, without any regard for what the Governor's ideas might be on that subject. Such a person is just as likely to adopt his own ideas, his own philosophy, and be no more representative of the people than the Governor is. There's a corollary to this that I don't know whether you've ever looked at. The history of Alaska, the government of Alaska, has been that the Legislature looks to the Attorney General for opinions. I'm here to suggest to you that that's wrong. You should have your own counsel. The Senate should have its own counsel; the House should have its own counsel, because sometimes the ideas of the Senate and the ideas of the House are not commensurate. You need independent legal advice. You should not be looking to the opinions of the attorney general as your authority on the law that you want to deal with. Even if you don't create a full time position, even if you only had contract counsel, you should have counsel whose loyalty is to you as his client. Any of you that have reason to consult with attorneys know that your attorney must be loyal to you, and this proposition, this SJR 10, would render the Governor having an attorney who is not loyal to him, and that simply doesn't work. It would be, in my view, one of the single most damaging things that you could possibly do to the structure of our state government, which I think has been highly successful since we became a state in 1959. That would be disrupted forever. It's not the kind of a proposition you can put out to the people. We have a republican form of government. It's your responsibility to make this decision. It's the kind of thing, maybe I have suggested to you, the degree of sophistication, historical knowledge, philosophical concepts, if you will, that are required to penetrate this maze, to get beyond that simplistic, naive statement: the attorney general represents the people. Surely he does, but through the medium of his governor, not directly. This kind of a proposition, as I say, put out to the voters at large; how can you adequately explain it? The newspapers wouldn't do it for you. The Anchorage Times had an editorial on this proposition about three weeks ago and I read it, and I became immediately, deeply concerned. It's come up not infrequently over the last 35 years. I happened to get well acquainted with a gentleman named Bill Allen, who is the CEO of VECO, also the owner of the Anchorage Times. I called - (I sat with him through several days of meetings on the Governor's Advisory Task Force on Tort Reform during the fall). I had never known him before but I got acquainted with him, so I called him and said, "Bill, I need to talk with you about this editorial. I think that you may not really understand all of the implications of what's being proposed." And so I have an appointment to sit down with him next Monday. I hope to enlighten him a little bit on all that's involved here. There's another danger, and having sat, as you people do, on a legislative committee, I'm extremely sensitive of it, and aware of it. This proposition goes to the very heart of the structure of our government. You cannot possibly adequately consider it (unless you reject it, as I hope you do) in the course of an afternoon, in the course of listening to two or three bozos like me. You cannot just talk about it. It requires careful thought and study. Let me divert for a moment. About four years ago, a little more than four years ago, there was a proposition put before the Legislature, to amend the Constitution by the initiative. This, likewise, was deeply disturbing to me because initiatives do not get the crucible of treatment that you people are able to give to legislative measures. You get bad law from the initiatives. You get bad constitutional amendments. Look at the Budget Reserve amendment. Have you tried to read that and make sense of its language? That's the kind of thing that emanates from inadequate, surface treatment of this kind of a subject. Ramona Barnes was the Speaker at the time that was introduced, and she asked Gail Phillips, and me, and a gentleman from Anchorage named Ken Jacobus, and Fran Ulmer, who was the Minority Leader of the House at the time, and I think there was maybe one other person, to sit on a committee to advise the Legislature what they should do about this proposal to amend the Constitution by the initiative. And we spent - this committee spent - a lot of time considering that, and we came up with a recommendation. I'm not suggesting that you take up that subject again, but I do think that you might be interested in the recommendation that we made, and that is that if there is a proposition like this, seriously to amend the constitution, that it should never be acted upon by the first session of the Legislature. It should be referred to, if you will, an ad hoc committee, or maybe a standing committee if you want, to consider in the interim, between the two sessions. Take it to the public, study it, scrutinize it in depth. Don't act upon it until the second session of the Legislature. If you have inclination to move this forward, and I hope you don't, I would suggest that you consider that kind of an approach in order that it get truly in-depth consideration and treatment before you willy-nilly go into restructuring what I think has been a pretty successful state government. I've talked too long, but I hope, maybe, I might have given some insight that might not ordinarily appear to the people that, I think, are making a shallow motion, here, as it were - - haven't really looked into what the history has been. Can you imagine the uproar that would occur if it were proposed on the national level - to elect the attorney general of the United States - to the President - an attorney that was not loyal to his program? There's no more reason to elect our attorney general than there is to elect the Attorney General of the United States. When Hamilton wrote what I quoted to you, and I think it's well worth your time to read The Federalist paper #70, if you really want to understand the concepts that went into this. The sound foundation for our executive branch was laid. We should not abandon it. Thank you. SENATOR TAYLOR: Thank you Judge Stewart, I appreciate you being here. I know, because you and I have discussed this many times in the past, your comments and thoughts have always been, and are, mine on this subject, and I know you were disappointed to see my name there as a co-sponsor. And I share the reverence that you have for the framework of our government and the work that our forefathers put into it, and you specifically put into it. However, Judge Stewart, in my wildest dreams, I never would have conceived of electing a governor, who by slight of hand, would prevent a Legislature from exercising its power of confirmation. That's another significant power that we have over the Governor's selection of an attorney general, and that did occur. And then to watch, and have that Attorney General appear before both joint house and senate committees, and individual committees, and admit that cases significant to the organic base of this State, the very Constitution that protects him, and the Attorney General, and to admit that those cases were dismissed, or claims not brought solely for political purposes, so motivated me that I introduced legislation over the last two years to create what I called a Constitutional Defense Council - a group of people, that when and if the Governor and his Attorney General abandon our State Constitution, that they could step in and act to protect that document. I figure that was kind of a halfway ground, at least, that might pick up, what I would hope would be rare instances. And I submit to you that this measure will do the damage that you are suggesting. I don't doubt that, but our constitutional framework in this State, in my opinion, all of that hard work that was done, and all of its predecessors, were based upon an assumption that the people who occupied that position would have integrity toward the office and the Constitution they were sworn to protect. You made reference to a statement that an Attorney General, finding himself in a compromising position between the Constitution and his Governor, should resign. And I submit to you that's correct. People of integrity would resign rather than dismiss cases for political purposes. Instead, I find today our Constitution is being used as a shield and a mirror in what appears to be a tragic game of smoke and mirrors where the Governor hides behind the AG and the AG hides behind the law. As a former attorney general told me, specifically, he said the current Attorney General loves his job more than he loves the Constitution and that frightens me greatly. I remember arguing these points with Dick Randolph, who almost 20 years ago, was trumpeting around the State with basically the same concept and I was going out front and carrying some of the same arguments that you've carried so beautifully before the committee today. But for those actions, I would never even have contemplated this desperate step because I consider it a very desperate step. And yet, to suggest that this Governor and this Attorney General will somehow be held accountable - I don't know how much more of our constitutional framework we can afford to have sold down the drain in one federal court case after another or how much of it will even be retrievable by the next Administration. How many of these decisions will become precedent against our State as we attempt to exercise the very same framework of concepts that we had. There was testimony given by this Governor before bodies of Congress in just the last year where he pledged that he would not bring any suit against Congress should they destroy the 90/10 split - one of the most organic concepts that this State was based upon in its relationship with the federal government. How long could you allow that forfeiting of that exercise of this State's rights to go on before [indisc.] is attached, before precedent is developed to the extent where no future governor could ever go back and revisit that and attempt to protect the future heritage of the State? I don't know - I don't know the answers to those questions. I consider this desperate action. I really do, and I keep in mind your comments and I really thank you so much for taking the time you have today to bring those words to us because I don't do this, or don't suggest this form of legislation lightly, but I am fearful of where we will be without it should we ever elect similar people to office. JUDGE STEWART: I can't argue with you about the particular cases. I'm not familiar with them. I'm surprised if there weren't some judicial remedy, if indeed the Attorney General, or the Governor, is violating those constitutional concepts. SENATOR TAYLOR: I think there is, but I think the only judicial remedy that is left at this point is also a desperate act, and that would be impeachment. JUDGE STEWART: And then I would say if you were to do this, this carries on... SENATOR TAYLOR: much longer than an impeachment would - I appreciate it. JUDGE STEWART: I'd be glad to answer any questions if ... SENATOR TAYLOR: Are there any questions? Yes, Senator Parnell... SENATOR PARNELL: I think I just would join you and speak for the committee in saying that you have provided some of the most thoughtful and most clear testimony of anybody I've ever heard in these committee rooms and I just want to say thank you and we appreciate hearing you. JUDGE STEWART: I appreciate your consideration. SENATOR TAYLOR: We have another very dear old friend of the law on the line - Judge Buckalew - you've been very patient. JUDGE BUCKALEW: I have nothing to add. Tom Stewart did a magnificent job, he's a real scholar and I'm perfectly satisfied with the record as is, and I can't improve on it, and I'm overparked. It's nice hearing from you, Tom. That was a great job. SENATOR TAYLOR: Seeborn, you run and catch your car and thank you ever so much and appreciate those good comments. Tuckerman, you are batting clean-up, I guess at this point. That's the only other witness I had. Did you ... SENATOR MILLER: It's kind of like following a kid's act or an animal act - you don't win. CHAIRMAN TAYLOR: It's my understanding you had some amendments being prepared. Did they arrive? MR. BABCOCK: Yes, Mr. Chairman, they did, and I gave to your staff the amendments that are incorporated what might be considered as a committee substitute, should the committee so desire. CHAIRMAN TAYLOR: If you wouldn't mind, what I would like to do at this time is, I will hold the bill until a future hearing - hopefully after we return from this five-day recess we'll bring you up first. By that time we can have a committee substitute prepared that you can work on staff with, and then go through those amendments with us and we can provide for further discussion because I realize that you were hit with a pretty good load there today and I want to give you a chance to respond or bring in such witnesses as you want to respond to that. MR. BABCOCK: Thank you Mr. Chairman. I certainly appreciate the testimony from such an honorable and venerable Alaskan as Judge Stewart and I am in no hurry - Senator Green is in no hurry to have this committee act injudiciously, or more quickly than necessary so I appreciate the added time to discuss with the committee, and with committee staff, the proposed amendments to this constitutional amendment. There being no further testimony on SJR 10, CHAIRMAN TAYLOR announced SJR 10 would be held in committee until further notice. The committee took a brief recess. SB 67 TRUTH IN SENTENCING VICE-CHAIR PEARCE called the meeting back to order at 2:57 p.m. an announced SB 67 was next on the agenda. SENATOR RICK HALFORD , sponsor of SB 67, explained the proposed committee substitute, which he supports, includes an amendment by the Court System to clarify that the bill is asking judges to determine approximate dates of release that cannot be used against the Court System regarding accuracy, and a new Section 1 which may provide for the capture of federal funds. SB 67 requires, at the time a judge imposes a sentence, he/she estimate how much time will actually be served. That hearing is when the victims and/or family are most likely to be present. Number 396 SENATOR PARNELL asked about Section 1. SENATOR HALFORD repeated that section pertains to the capture of federal funds in regard to how Alaska sets sentences. VICE-CHAIR PEARCE asked about the new fiscal note. SENATOR HALFORD replied CSSB 67(JUD) has a positive fiscal impact of about $617,000. SENATOR MILLER moved to adopt CSSB 67(JUD) (version 0-LS0137\K) for discussion purposes. There being no objection, CSSB 67(JUD) was adopted. PAUL SWEET , testifying via teleconference from Mat-Su, asked whether appeals will affect this bill. VICE-CHAIR PEARCE responded at the time of sentencing, the judge does not know whether an appeal will occur. Although everyone is aware of problems with abusing the appeal system, SB 67 does not address that issue. MARGOT KNUTH , representing the Department of Corrections, informed committee members several years ago the federal government instituted a truth in sentencing intensive grant program which makes funds available to states for prison construction and expansion. The program has two components: truth in sentencing; and a requirement that states actually impose at least 85 percent of the period of incarceration. Alaska has not been able to qualify for those funds because it has a mandatory good-time provision that allows up to one-third of the sentence to be served on supervised release for felons, or any case with a sentence longer than two years. If the sentence is less than two years, mandatory good-time means early release for the prisoner. Good- time can be lost for disciplinary infractions within the institution. The federal government has recently decided that requiring states to keep prisoners incarcerated for a full 85 percent of their sentences is hardly affordable for most states. Consequently, it has recognized several different exceptions to the 85 percent requirement. One, the Minnesota exception, provides that the sentence be defined to exclude any statutorily required supervised release periods. For Alaska's violent offenders, that would amount to the "good time" because they are spending more than two years incarcerated and are not being released on discretionary parole. Alaska might now be able to meet that requirement, but needs a language change to bifurcate the sentence, which is what Section 1 does. If Alaska is able to qualify for truth in sentencing funds, they will amount to $617,000 for FY 98, and about $500,000 for the following four years. CHAIRMAN TAYLOR noted several years ago the Legislature was attempting to accomplish a similar goal. His concern at that time was the early release of violent prisoners, by the Parole Board, with no notification to witnesses or others who might be threatened, including the judge who imposed the sentence. He felt the appropriate solution was to require the sentencing judge's consent to an early release. MS. KNUTH agreed notification of victims and the court is entirely appropriate and added Senator Ellis has introduced a bill to create an automated victim notification system. CHAIRMAN TAYLOR noted previous legislation he sponsored would make the person(s) responsible for early release liable to the victim if a reoffense occurred. TAPE 97-14, SIDE A Number 000 DEL SMITH , Deputy Commissioner of the Department of Public Safety, testified in strong support of SB 67. He and Commissioner Otte are concerned about the public's misperceptions of actual time served by prisoners, and the effect early release can have on the victims, witnesses, defendants and the public. SENATOR PEARCE asked whether a jury is told how much time will actually be served when deliberating. CHAIRMAN TAYLOR replied they are not informed, because it is believed it might prejudice them against the prosecution. He explained there are states where one can choose who will impose the sentence; the jury or judge, but the judge has the right to overrule the jury. CHAIRMAN TAYLOR asked why existing sentences cannot be structured by shifting the numbers so that one-third became three-quarters to bring us into federal compliance. MS. KNUTH agreed that there are several ways to accomplish the same thing that would do the least "tweaking" to our system. CHAIRMAN TAYLOR asked what is wrong with a system that sentences a person for 15 years and tacks on additional years for acting out. He noted we assume and reward good conduct up front while most other penal institutions put a person in prison assuming good conduct and then punish them for misconduct. MS. KNUTH replied the difference in a bad-time state is the presumption that prisoners have to earn time off. Most states in the union are good-time states but the truth in sentencing program has caused some states to change to bad-time policies. CHAIRMAN TAYLOR questioned why prisoners, using public defender services to appeal a criminal case, are given credit for prison time served while the appeal is pending. If they weren't, they would have something invested in the appeal. MS. KNUTH said that was an interesting proposal. CHAIRMAN TAYLOR commented the appeal turnaround time in some other countries is three months, while it is two and one-half to three years here. Number 55 SENATOR PEARCE moved to pass CSSB 67(Jud) from committee with individual recommendations and the appropriate fiscal notes. There were no objections and it was so ordered. SB 41 ENVIRONMENTAL & HEALTH/SAFETY AUDITS MR. MIKE PAULEY, staff to Senator Leman, sponsor of SB 41, noted submitted a packet of 24 amendments from various sources: the sponsor, industries affected by the bill, DEC, and the Department of Law. (A COPY OF THE AMENDMENTS IS ATTACHED TO THE END OF THIS DOCUMENT.) CHAIRMAN TAYLOR said the subject of the second amendment was reasonable: 90 days instead of 30. MR. PAULEY said DEC does not oppose amendments 1 and 2. CHAIRMAN TAYLOR asked what impact deleting the word "only" in amendment #4 would have. MR. PAULEY explained it refers to the circumstances in which one could disclose the audit report, but not waive the privilege. MR. PAULEY said amendment #5 specifies privileged information can only be disclosed to a lawyer or someone who works for that lawyer. Amendment #6 provides that if an audit report is shared with someone else under terms of a confidentiality agreement, anyone who violates that agreement is liable for damages. He thought that provision was omitted inadvertently. MR. PAULEY continued explaining the amendments. Amendment #7 clarifies that all parties agree that the privilege described in this bill does not shield underlying facts. Amendment #8 relates to privilege for information relating to pipeline tariffs. Amendment #9 provides that privilege and immunity can be overcome if the violation in question poses an imminent threat of injury, and is one of the things EPA looks for. Amendment #10 adds an administrative hearing officer, in addition to the courts. Amendment #11 is a semantic change for the purpose of consistency. Amendment #12 specifies which portions of an audit can be viewed during an investigation. Amendment #13 addresses EPA's concern by conditioning immunity. Amendment #14 pertains to the notice requirement for audits. Amendment #15 establishes that nothing in the bill will prevent a regulatory agency from seeking injunctive relief or issuing an emergency order in situations involving imminent and substantial danger. Amendment #16 clarifies conditions for immunity for repeat violations by companies with facilities located in other states. Amendment #17 is a grammatical correction. Amendment #18 replaces "offense" with "violation" to conform with civil procedure language in Alaska. Amendment #19 deals with economic benefit if the non-compliant owner/operator has gained an economic benefit from non- compliance. Amendment #20 allows electronic filing of audit disclosures. Amendment #21 adds language to the definition of what might be included in an audit report. Amendment #22 adds material to the definition of "confidential self-evaluation and analysis" to specify employee interview notes or field notes are included in the definition of privileged audit information. CHAIRMAN TAYLOR clarified the interviewer's words are provided immunity, but not necessarily the documents of the interviewee. MR. PAULEY continued. Amendment #23 deletes any reference to DHSS. Amendment #24 contains definitions for the words "intentionally," "knowingly," and "recklessly" from the criminal code. Number 240 SENATOR TAYLOR said his intention was to entertain a motion to adopt all 24 amendments. If any member has objection to any specific amendment within that package, he would withdraw it from the motion and address it individually. SENATOR ELLIS objected to amendments #7 and #8 because Ms. Adair of DEC had to drop off the teleconference and was unable to comment. SENATOR PEARCE moved to adopt Amendments 1-24, except for #7 and Number 260 SENATOR MILLER moved to adopt Amendment #7. SENATOR ELLIS objecte for the purpose of hearing DEC's comments. Number 279 MS. MARIE SANSONE, Department of Law, said the inclusion of the term "objective facts" was very important because they do not want subjective opinions. CHAIRMAN TAYLOR asked her to give him an example of how one could write a self-audit report and not make reference to objective facts that make up the report. MS. SANSONE answered the portion of the report that is to remain privileged concerns the auditor's evaluation: findings, conclusions, opinions, and the recommended plan for corrective action. The actual facts gathered and relied on to make conclusions would not be privileged. CHAIRMAN TAYLOR asked why a pulp mill would hire an expert to gather samples hourly to review its operations and ensure compliance if that data is not privileged. Why hire anyone to do anything other than give conjecture and recommendations if that is the only thing that can be shielded? Number 311 MS. SANSONE explained if the privilege is used to shield objective facts, it can be used to sweep up a lot of valuable information used to determine violations. To allow privilege to shield that information would jeopardize the credibility of the enforcement program. People should have access to objective facts but not to the auditor's thoughts about sampling methods or conclusions about the samples. Number 319 CHAIRMAN TAYLOR repeated if the facts are not going to be privileged, he does not believe anyone will ever hire someone to come in and do tests. Number 364 MS. SANSONE explained the purpose of the audit privilege is to encourage people to evaluate their own conduct and undertake activities to correct and prevent violations. Most businesses have an incentive to do that anyway. The Administration does not believe that incentive should extend to the objective facts. SENATOR ELLIS reminded the Chairman there was a packet of amendments from him as well. CHAIRMAN TAYLOR asked the question. SENATOR ELLIS maintained his objection. SENATORS PEARCE, MILLER, PARNELL AND TAYLOR voted yes; SENATOR ELLIS voted no. The motion to adopt Amendment #7 passed. CHAIRMAN TAYLOR announced the remaining amendments would be heard at the next hearing and adjourned the meeting at 3:44 p.m. The following amendments were submitted by Senator Leman. A M E N D M E N T #1 Page 3, line 7: Following "certified mail": Insert: "with return receipt requested" Page 3, line 7: Following "to the": Insert: "commissioner's office of the" A M E N D M E N T #2 Page 3, lines 12-13: Change wording as follows: Once initiated, an audit shall be completed within a reasonable time, but no longer than 90 days [30 DAYS] unless a longer period of time is agreed upon between the owner or operator and the department. A M E N D M E N T #3 Page 3, lines 30-31: Change wording as follows: A person claiming the privilege described in this section has the burden of establishing [PROVING] the applicability of the privilege. A M E N D M E N T #4 Page 4, lines 23-27: In subsection (b), delete the word "only": (b) Disclosure of the part of an audit report or information consisting of confidential self-evaluation or analysis does not waive the privilege established by AS 09.25.450 if the disclosure is made [ONLY] (1) to address or correct a matter raised by the environmental or health and safety audit and is made [ONLY] to.... A M E N D M E N T #5 Page 4, line 30: Delete all material. Insert: "(B) the owner or operator's lawyer or the lawyer's representative;" A M E N D M E N T #6 Page 5, after line 22: Add a new subsection (d) as follows: (d) A party to a confidentiality agreement described in (b)(2) of this section who violates that agreement is liable for damages caused by the disclosure and for other penalties stipulated in the confidentiality agreement. A M E N D M E N T #7 Page 5, line 25: Delete the reference to "objective facts" in 09.25.460 (a): (a) There is no privilege under AS 09.25.450 for that part of an audit report that contains the following: [ (1)OBJECTIVE FACTS; ] A M E N D M E N T #8 Page 6, lines 15-16: Reword subsection (b) as follows: The parts of an audit report that consist of information necessary to determine pipeline rates, tariffs, fares, or charges are not privileged and are admissible as evidence and subject to discovery in a proceeding relating to pipeline rates, tariffs, fares, or charges. [AN AUDIT REPORT IS NOT PRIVILEGED AND IS ADMISSIBLE AS EVIDENCE AND SUBJECT TO DISCOVERY IN A PROCEEDING RELATING TO PIPELINE RATES, TARIFFS, FARES, OR CHARGES.] A M E N D M E N T #9 Page 6, line 24: Following "offsite": Insert: "or the imminent or present threat of such injury" Page 7, line 13: Following "offsite": Insert: ", or if the violation poses an imminent or present threat of such injury" A M E N D M E N T #10 Page 6, line 17: Following "court": Insert "or administrative hearing officer" Page 6, line 19: Following "civil": Insert "or administrative" Page 6, line 19: Following "court": Insert "or administrative hearing officer" Page 9, line 7: Following "court": Insert "or administrative hearing officer" A M E N D M E N T #11 Page 7, line 16: Following "obtained by the ": Delete "person" Insert "owner or operator" A M E N D M E N T #12 Page 7, line 26 through page 8, lines 4: Delete all material. Page 8, lines 14 - 19: Reword paragraph as follows: (4) cooperate with the appropriate agency in connection with an investigation of the issues identified in the disclosure; an agency may request that the owner or operator allow the agency to review, under an agreement as described in AS 09.25.455(b)(3), the part of the audit report that describes the implementation plan or tracking system developed to correct past noncompliance, improve current compliance, or prevent future noncompliance. [RELEVANT PORTIONS OF THE CONFIDENTIAL SELF-EVALUATION AND ANALYSIS AS NECESSARY TO DETERMINE THAT APPROPRIATE CORRECTIVE ACTIONS HAVE BEEN IDENTIFIED]. A M E N D M E N T #13 Page 8, after line 8: Add a new paragraph (d) (2) as follows: (2) promptly initiate appropriate efforts to discontinue, abate, or mitigate any conditions or activities causing injury or likely to cause imminent injury to one or more persons at the site audited or to persons, property, or the environment offsite. A M E N D M E N T #14 Page 8, lines 20-22; Page 9, lines 1-2: Reword subsection (g) as follows: (g) During the period between receipt of the audit notice required under AS 09.25.450(b) and the specified end date of the audit [AUDIT PERIOD SPECIFIED IN THE NOTICE REQUIRED UNDER AS 09.25.450(b)], the department may not initiate an inspection, monitoring, or other investigative activity concerning the audited facility, operation, or property based [SOLELY] on the receipt of a notice under AS 09.25.450. The department has the burden of proving that an inspection, monitoring, or other investigative activity concerning the audited facility, operation, or property initiated after receiving a notice under AS 09.25.450 was not initiated based [SOLELY] on receiving the notice. A M E N D M E N T #15 Page 9, after line 5: Insert new subsection: (i) This section may not be construed to prevent a regulatory agency from(1) seeking injunctive relief; or (2) issuing an emergency order in situations involving an imminent and substantial danger to public health or welfare or the environment. A M E N D M E N T #16 Page 9, lines 11-13: Amend 09.25.480(a)(1)(B) as follows: (B) within the 36 months preceding the violation, repeatedly or continuously committed, at the same facility or associated facilities located in the state, the specific violation or closely related violation for which immunity is sought; or [VIOLATIONS THAT ARE THE SAME AS, OR SIMILAR TO, THE VIOLATION FOR WHICH THE IMMUNITY IS SOUGHT;] A M E N D M E N T #17 Page 9, line 15: Following "into compliance and": Delete: "and this failure" Insert: "so as to constitute" A M E N D M E N T #18 Page 9, lines 17-20: Reword paragraph (a)(2) as follows: (2) the violation [OFFENSE] was committed intentionally or knowingly by a member of the owner's or operator's management or an agent of the owner or operator and the owner's or operator's policies or failure to have in place systems reasonably designed to prevent such violations [LACK OF PREVENTION SYSTEMS CONTRIBUTED MATERIALLY TO THE OCCURRENCE OF THE VIOLATION.] A M E N D M E N T #21 Page 10, lines 13-16: Add new language to 09.25.490 (a)(1)(A) as follows: (A) a report, prepared by an auditor, monitor, or similar person, including the scope of the audit, the dates the audit began and ended, the information gained in the audit, findings, conclusions, recommendations, exhibits, and appendices; the types of exhibits and appendices that may be contained in an audit report include supporting information that is collected or developed for the primary purpose of and in the course of an environmental or health and safety audit, including (i) interviews with current or former employees; (ii) field note and records of observations; (iii) findings, opinions, suggestions, conclusions, guidance, notes, drafts, and memoranda; (iv) legal analyses; (v) drawings; (vi) photographs; (vii) laboratory analyses and other analytical data; (viii) computer generated or electronically recorded information; (ix) maps, charts, graphs, and surveys; and (x) other communications and documents associated with an environmental or health and safety audit; A M E N D M E N T #22 Page 10, lines 22-27: Add new language to definition of "confidential self- evaluation and analysis" as follows: (2) "confidential self-evaluation and analysis" means the part of an audit report that consists of interviews with current or former employees; field notes and records of observations made by the auditor; findings, opinions, suggestions, conclusions, guidance, notes, drafts, and analyses performed by the auditor; memoranda and documents that evaluate or analyze all or part of the material described in the audit report, including implementation issues or an audit implementation plan or tracking system to correct past noncompliance, improve current compliance, or prevent future noncompliance with an environmental or health and safety law, and that is... A M E N D M E N T #23 Page 11, line 2: Delete the words "Department of Health and Social Services": (3) "department" means the Department of Environmental Conservation, the Department of Labor, [AND THE DEPARTMENT OF HEALTH AND SOCIAL SERVICES,] as appropriate; A M E N D M E N T #24 Page 11, line 21: Delete all material. Page 11, line 22: Delete all material. Page 11, line 28: Delete all material. Re-number definitions accordingly. Page 12 following line 3: Add a new subsection as follows: "(c) For purposes of this chapter, unless the context requires otherwise, (1) a person acts "intentionally" with respect to a result described by a provision of law defining a violation when the person's conscious objective is to cause that result; when intentionally causing a particular result is an element of a violation, that intent need not be the person's only objective; (2) a person acts "knowingly" with respect to conduct or to a circumstance described by a provision of law defining a violation when the person is aware that the conduct is of that nature or that the circumstance exists; when knowledge of the existence of a particular fact is an element of a violation, that knowledge is established if a person is aware of a substantial probability of its existence, unless the person actually believes it does not exist; a person who is unaware of conduct or a circumstance of which the person would have been aware had that person not been intoxicated acts knowingly with respect to that conduct or circumstance; (3) a person acts "recklessly" with respect to a result or to a circumstance described by a provision of law defining a violation when the person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists; the risk must be of such a nature and degree that disregard of it constitutes a gross deviation from the standard of conduct that a reasonable person would have been aware had that person not been intoxicated acts recklessly with respect to the risk.