Legislature(1999 - 2000)

02/05/1999 01:40 PM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
              SENATE JUDICIARY COMMITTEE                                                                                        
                   February 5, 1999                                                                                             
                      1:40 p.m.                                                                                                 
MEMBERS PRESENT                                                                                                                 
Senator Robin Taylor, Chairman                                                                                                  
Senator Dave Donley                                                                                                             
Senator John Torgerson                                                                                                          
MEMBERS ABSENT                                                                                                                  
Senator Rick Halford, Vice-Chairman                                                                                             
Senator Johnny Ellis                                                                                                            
COMMITTEE CALENDAR                                                                                                              
SENATE BILL NO. 41                                                                                                              
"An Act making corrective amendments to the Alaska Statutes                                                                     
relating to certain repealed law as recommended by the revisor of                                                               
statutes; and providing for an effective date."                                                                                 
     -HEARD AND HELD                                                                                                            
PREVIOUS SENATE COMMITTEE ACTION                                                                                                
SB 41 - No previous action to report.                                                                                           
WITNESS REGISTER                                                                                                                
Mr. James Crawford                                                                                                              
Assistant Revisor                                                                                                               
Legislative Legal and Research Services                                                                                         
130 Seward suite 409                                                                                                            
Juneau, AK 99801                                                                                                                
POSITION STATEMENT:  Presented SB 41                                                                                            
ACTION NARRATIVE                                                                                                                
TAPE 99-7, SIDE A                                                                                                               
Number 001                                                                                                                      
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to                                                                 
order at 1:42 p.m. and announced SB 41 would be the only order of                                                               
               SB  41-SUPPLEMENTAL REVISOR'S BILL                                                                               
MR. JAMES CRAWFORD, Assistant Revisor of Statutes, explained that                                                               
the substantive sections of the bill are aimed at language in                                                                   
existing statute that refers to obsolete statutes. MR. CRAWFORD                                                                 
stated that the bill attempts to correct this problem in a manner                                                               
consistent with the Legislature's intent.                                                                                       
MR. CRAWFORD said the references in sections 1, 2, 4 and 5,                                                                     
originated from chapter 45 and are all similar to one another.                                                                  
Chapter 45 reflected a concern for vulnerable people receiving home                                                             
care services. MR. CRAWFORD observed that the legislative intent                                                                
behind chapter 45 was to increase general protection for these                                                                  
people and, more specifically, to protect them from being robbed or                                                             
defrauded. The original bill derived from a case in which an                                                                    
elderly person had been defrauded by a home care provider and lost                                                              
$500,000. The bill contained a criminal records check requirement                                                               
for home care providers who wished to receive state funding.                                                                    
Number 052                                                                                                                      
SENATOR TORGERSON asked if it turned out that the perpetrator of                                                                
that crime had a criminal background. MR. CRAWFORD replied he did                                                               
not know about this case in particular, but had reviewed all the                                                                
minutes of meetings in which this original bill was discussed and                                                               
the minutes indicated that 30% of the records checks performed                                                                  
turned up criminal records.                                                                                                     
SENATOR TORGERSON asked for clarification of what type of                                                                       
protection the bill tried to afford. MR. CRAWFORD said the                                                                      
protection was for vulnerable people such as children, the elderly                                                              
and the disabled.                                                                                                               
SENATOR TORGERSON asked when this bill was passed and MR. CRAWFORD                                                              
replied chapter 45 passed in 1994. SENATOR TORGERSON asked how the                                                              
bill has been interpreted in the meantime. MR. CRAWFORD stated that                                                             
the records that have been made available under this type of                                                                    
request are the same type of records that were available under the                                                              
statute that was repealed.                                                                                                      
MR. CRAWFORD said the correction in SB 41 will replace a reference                                                              
to "records" with a reference to "criminal justice information" to                                                              
make it consistent with current statute. The new reference will                                                                 
provide all the same information available under the old reference,                                                             
and could possibly provide more information, consistent with the                                                                
intent of the 1994 Legislature to increase protection to vulnerable                                                             
MR. CRAWFORD explained that Section 3 is slightly different from                                                                
the rest of the bill and deals with a reference to "sex crimes," a                                                              
narrower category than "records." MR. CRAWFORD said in order to                                                                 
remain consistent with this narrower intent, the definition of "sex                                                             
crimes" was merely taken from the obsolete statute and inserted                                                                 
into the new statute.                                                                                                           
Number 152                                                                                                                      
SENATOR DONLEY asked if MR. CRAWFORD could provide a public policy                                                              
example of the difference between the two. MR. CRAWFORD said, in                                                                
suggesting a revisor's bill, he only looks at the original                                                                      
legislative intent as it compares with the more recent legislative                                                              
intent. SENATOR DONLEY inquired as to the logic behind having one                                                               
section more narrowly limited than the other. MR. CRAWFORD replied                                                              
the logic is that a revisor's bill attempts to stick as closely as                                                              
possible to the legislative intent. He stated that public policy is                                                             
not made in a revisor's bill. In answer to SENATOR DONLEY'S                                                                     
question, MR. CRAWFORD pointed out that the statute in section 3                                                                
already contains that other information, so adding it is not                                                                    
SENATOR DONLEY commented that he believes it is appropriate for a                                                               
revisor's bill to look for consistency and logic and insert it                                                                  
where necessary.                                                                                                                
Number 220                                                                                                                      
SENATOR TORGERSON asked about section 3, and particularly the                                                                   
reference to an "attempted" violation of particular statutes. He                                                                
noted that one of the crimes defined under this section is                                                                      
"attempted mooning." He asked if this was a valid basis to revoke                                                               
someone's licence. MR. CRAWFORD said the bill is worded that way                                                                
because that is the way it was worded in 1994 and he only took out                                                              
the old definition and replaced it with the new definition.                                                                     
SENATOR TORGERSON asked if the result of the original bill is that                                                              
a person convicted of this crime will lose their day care or foster                                                             
care licence. MR. CRAWFORD responded that it is possible the                                                                    
person's licence would be revoked or the issuing body would fail to                                                             
renew it.                                                                                                                       
SENATOR TORGERSON asked if it is customary to include the phrase                                                                
"or regulations adopted under this chapter." MR. CRAWFORD indicated                                                             
it is. SENATOR TORGERSON also asked about the wording "or laws of                                                               
another jurisdiction." MR. CRAWFORD replied this is a common                                                                    
inclusion that allows previous crimes of a similar nature to be                                                                 
counted against a person who commits another of the same type of                                                                
crime in a different jurisdiction. CHAIRMAN TAYLOR explained this                                                               
and gave the example of a person convicted of a DWI in Alaska who                                                               
is later convicted of a DWI in California. The California DWI would                                                             
be counted as a second offense because Alaska considers .10 the                                                                 
standard for DWI and California uses .08 as its standard. The                                                                   
Alaska offense exceeds the California standard and, therefore,                                                                  
would be considered a prior offense.                                                                                            
Number 295                                                                                                                      
CHAIRMAN TAYLOR remarked he feels this bill reaches the edge of                                                                 
what can be considered a revisor's bill because of the conflicting                                                              
legislation underlying SB 41. He indicated something this                                                                       
significant might be better dealt with a clean up bill, rather than                                                             
this revisor's bill.                                                                                                            
CHAIRMAN TAYLOR also expressed interest in knowing more about how                                                               
these records requests have been dealt with since 1994. MR.                                                                     
CRAWFORD replied that he had learned these requests were being                                                                  
dealt with in essentially the same manner they had previously been                                                              
dealt with, according to Ms. Diane Shenker of the Department of                                                                 
Public Safety. He added that regulations also govern these records                                                              
CHAIRMAN TAYLOR expressed surprise that Ms. Shenker was "back doing                                                             
that again," as during an inquiry conducted on illegal use of the                                                               
Alaska Public Safety Information Network, Ms. Shenker "all of the                                                               
sudden either wasn't available or wasn't part of the scheme anymore                                                             
. . . "                                                                                                                         
CHAIRMAN TAYLOR said Ms. Shenker had testified that under the                                                                   
existing language, these records requests would only access state                                                               
records and would not allow access into the federal National Crime                                                              
Information Center (NCIC) computer. CHAIRMAN TAYLOR suggested                                                                   
stronger language would be needed to allow NCIC access and this                                                                 
would be a substantive change that would not fit in a revisor's                                                                 
bill. He asked if the objective of this bill might be better served                                                             
by a regular substantive bill. CHAIRMAN TAYLOR said he would                                                                    
sponsor such a bill.                                                                                                            
Number 375                                                                                                                      
MR. CRAWFORD replied that any correction in a revisor's bill is up                                                              
to the will of the Legislature. He did agree that a stronger                                                                    
authorizing  statute would be needed in order for these records                                                                 
requests to access NCIC.                                                                                                        
SENATOR TORGERSON declared a conflict-of-interest. He owns a                                                                    
licenced foster care home. He moved and asked unanimous consent                                                                 
that he be allowed to leave the committee at this time. Both                                                                    
CHAIRMAN TAYLOR and SENATOR DONLEY objected.                                                                                    
Number 390                                                                                                                      
SENATOR TORGERSON asked if, under statute, a background check is                                                                
required every 10 years. MR. CRAWFORD indicated the answer probably                                                             
lies in regulation. SENATOR TORGERSON said he likes CHAIRMAN                                                                    
TAYLOR'S idea of a new bill but would like the department to appear                                                             
before the committee and answer some questions. He commented that                                                               
he is not sure if "mooning" is something that needs to be included                                                              
in the original bill.                                                                                                           
SENATOR DONLEY suggested that, under this statute, the crime of                                                                 
"mooning" would carry a penalty more severe than perjury. SENATOR                                                               
TORGERSON interjected that "attempted mooning" would also carry the                                                             
same penalty.                                                                                                                   
SENATOR TORGERSON asked if a simple indictment would stand and                                                                  
could cause someone to lose their licence. MR. CRAWFORD replied                                                                 
that the indictment would have to come down from a grand jury and                                                               
be based on probable cause. SENATOR DONLEY wondered, "Did we really                                                             
pass this bill?"                                                                                                                
SENATOR DONLEY expressed amazement that someone could be indicted,                                                              
found innocent, and still be banned for life from holding one of                                                                
these licences. MR. CRAWFORD replied that doing that is possible,                                                               
but not mandatory for the department. SENATOR DONLEY concluded,                                                                 
"This really stinks."                                                                                                           
Number 455                                                                                                                      
CHAIRMAN TAYLOR said it appears it doesn't even take an indictment                                                              
of attempted mooning, in fact it only takes a presentment of                                                                    
attempted mooning to revoke a person's licence. He said this is a                                                               
problem and the committee will hold the bill and ask the department                                                             
to appear to answer some questions that have been raised. CHAIRMAN                                                              
TAYLOR asked MR. CRAWFORD to draft an amendment to the existing law                                                             
to clean it up in a manner consistent with federal law. He asked                                                                
MR. CRAWFORD to give some thought to "how far down the misdemeanor                                                              
ladder you want to go."                                                                                                         
SENATOR TORGERSON suggested the committee also look at the                                                                      
regulations associated with this statute.                                                                                       
SENATOR DONLEY remarked he was surprised that, under this law, a                                                                
person would not be innocent until proven guilty and, even after                                                                
proving innocence, would still be guilty. He concluded, "There is                                                               
something really wrong here."                                                                                                   
CHAIRMAN TAYLOR adjourned the meeting at 2:17 p.m.                                                                              

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