Legislature(1997 - 1998)

02/26/1997 01:40 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
                   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.                                          
                                                                               

Document Name Date/Time Subjects