Legislature(1999 - 2000)

03/15/1999 01:44 PM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
              SENATE JUDICIARY COMMITTEE                                                                                        
                    March 15, 1999                                                                                              
                      1:44 p.m.                                                                                                 
MEMBERS PRESENT                                                                                                                 
Senator Robin Taylor, Chairman                                                                                                  
Senator Rick Halford, Vice-Chairman                                                                                             
Senator Dave Donley                                                                                                             
Senator John Torgerson                                                                                                          
Senator Johnny Ellis                                                                                                            
MEMBERS ABSENT                                                                                                                  
All members present                                                                                                             
COMMITTEE CALENDAR                                                                                                              
SENATE BILL NO. 1                                                                                                               
"An Act relating to good time and release on mandatory parole."                                                                 
     -HEARD AND HELD                                                                                                            
SENATE BILL NO  77                                                                                                              
"An Act relating to civil actions by municipalities and certain                                                                 
public corporations and prohibiting certain civil actions by them                                                               
against firearms or ammunition manufacturers and dealers."                                                                      
     -MOVED CSSB 77(JUD) OUT OF COMMITTEE                                                                                       
SENATE BILL NO. 96                                                                                                              
"An Act relating to access to criminal history records and to                                                                   
revocation of or failure to renew certain licenses based on                                                                     
criminal conduct or alleged criminal conduct; and providing for an                                                              
effective date."                                                                                                                
     -HEARD AND HELD                                                                                                            
SENATE BILL NO. 100                                                                                                             
"An Act relating to the payment by indigent persons for legal                                                                   
services and related costs."                                                                                                    
     -HEARD AND HELD                                                                                                            
PREVIOUS SENATE COMMITTEE ACTION                                                                                                
SB 1 - No previous action to report                                                                                             
SB 77 - See Judiciary Committee minutes dated 3-12-1999                                                                         
SB 96 - No previous action to report                                                                                            
SB 100 - No previous action to report                                                                                           
WITNESS REGISTER                                                                                                                
Ms. Diane Wendlandt, Supervisor                                                                                                 
Collections Unit                                                                                                                
Department of Law                                                                                                               
1031 West 4th Ave ste. 200                                                                                                      
Anchorage, AK 99501-1994                                                                                                        
POSITION STATEMENT:  Testified on SB 100                                                                                        
Ms. Betsy Robson, Assistant Director                                                                                            
Division of Institutions                                                                                                        
Department of Corrections                                                                                                       
4500 Diplomacy Drive ste. 207                                                                                                   
Anchorage, AK 99508-5918                                                                                                        
POSITION STATEMENT: Testified on SB 1                                                                                           
Mr. Blair McCune, Deputy Director                                                                                               
Alaska Public Defender Agency                                                                                                   
900 West 5th Ave. #200                                                                                                          
Anchorage, AK 99501                                                                                                             
POSITION STATEMENT:  Testified on SB 1                                                                                          
Mr. Bruce Richards, Program Coordinator                                                                                         
Department of Corrections                                                                                                       
240 Main Street ste. 700                                                                                                        
Juneau, AK 99801                                                                                                                
POSITION STATEMENT:  Testified on SB 1                                                                                          
Mr. Michael Stark, Assistant Attorney General                                                                                   
Department of Law                                                                                                               
PO Box 10300                                                                                                                    
Juneau, AK 99811-0300                                                                                                           
POSITION STATEMENT:  Testified on SB 1                                                                                          
Ms. Kathy Tibbles, Program Administrator                                                                                        
Division of Family and Youth Services                                                                                           
Department of Health, Education and Social Services                                                                             
PO Box 110630                                                                                                                   
Juneau, AK 99811-0630                                                                                                           
POSITION STATEMENT:  Testified on SB 96                                                                                         
ACTION NARRATIVE                                                                                                                
TAPE 99-18, SIDE A                                                                                                              
Number 001                                                                                                                      
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to                                                                 
order at 1:44 and announced SB 77 would be the first item up for                                                                
              SB 77-LIABILITY RELATING TO FIREARMS                                                                              
CHAIRMAN TAYLOR asked MR. VICTOR GUNN, staff to Senator Pete Kelly,                                                             
if he had any comments on the proposed committee substitute.  He                                                                
had none. CHAIRMAN TAYLOR explained the changes made in the                                                                     
committee substitute. The bill was expanded to limit civil                                                                      
liability suits by individuals as well as municipalities. The bill                                                              
precludes damages or injunctive relief for damage claims arising                                                                
from the lawful manufacture or sale of firearms and ammunition. SB
77 does not prohibit civil actions for negligent design, breach of                                                              
contract, or breach of warranty.                                                                                                
CHAIRMAN TAYLOR asked for further testimony on the bill. There was                                                              
Number 038                                                                                                                      
SENATOR HALFORD moved the adoption of the committee substitute                                                                  
(Ford, 3-15-99) in lieu of the original bill. Without objection, it                                                             
was so ordered.                                                                                                                 
SENATOR HALFORD moved the bill from committee with a do pass                                                                    
recommendation. Without objection, the bill moved from committee                                                                
with a do pass recommendation.                                                                                                  
            SB 100-REIMBURSEMENT FOR PUBLIC DEFENDER                                                                            
SENATOR DONLEY said he was excited to see this legislation                                                                      
introduced. In 1995, he drafted a related measure in an attempt to                                                              
hold down the costs associated with the Public Defender Agency.                                                                 
SENATOR DONLEY said one of the reasons Public Defender costs are                                                                
high in Alaska is the statutory requirement that a person being                                                                 
represented by the Public Defender should be provided with the same                                                             
level of representation as a person independently retaining an                                                                  
attorney. SENATOR DONLEY's proposal deleted that provision and                                                                  
mandated that Public Defenders would be provided "at the level and                                                              
to the extent required under the United States Constitution and the                                                             
Constitution of the State of Alaska."                                                                                           
Number 099                                                                                                                      
MR. DOUG WOOLIVER, representing the Alaska Court System, thanked                                                                
the committee for introducing the bill that requires all criminal                                                               
defendants to pay a portion of the state-funded representation they                                                             
receive. Currently, only those convicted of crimes are required to                                                              
repay this cost; SB 100 would expand the payment requirement to all                                                             
people who receive state-funded representation. This change was                                                                 
suggested by an audit conducted by Legislative Budget and Audit.                                                                
MR. WOOLIVER said this bill treats indigents more like non-                                                                     
indigents. According to a schedule set out in statute, indigents                                                                
pay only a portion of the actual cost associated with their                                                                     
representation. In cases of economic hardship, the court can defer                                                              
or remit these costs and, therefore, the bill will not drive                                                                    
indigent people further into poverty. The bill would make those who                                                             
can, pay a portion of their costs.                                                                                              
Number 155                                                                                                                      
SENATOR TORGERSON asked if the court takes into account the                                                                     
Permanent Fund Dividend (PFD). MR. WOOLIVER replied it does, and                                                                
can even order defendants to apply for a PFD.                                                                                   
SENATOR TORGERSON asked what happens if a person fails to apply for                                                             
their PFD even after a court order. MR. WOOLIVER replied the person                                                             
is held in contempt of court.                                                                                                   
SENATOR HALFORD asked why the bill allows a judge to stay                                                                       
enforcement of a (monetary) judgement during the appellate process.                                                             
CHAIRMAN TAYLOR replied this law probably was already in place,                                                                 
along with the requirement that only those persons convicted had to                                                             
pay part of their costs. He no longer sees a reason to have this in                                                             
the bill. MR. WOOLIVER agreed.                                                                                                  
Number 215                                                                                                                      
SENATOR HALFORD moved as Amendment #1 to delete the sentence on                                                                 
line 7 that reads:                                                                                                              
     "Enforcement of a judgement under this subsection may be                                                                   
     stayed by the trial court or the appellate court during                                                                    
     the pendency of an appeal of the person's conviction."                                                                     
Without objection, Amendment #1 passed.                                                                                         
SENATOR DONLEY asked MR. WOOLIVER how often the court fails to                                                                  
enter a judgement against people who use Public Defender services.                                                              
MR. WOOLIVER was not sure. SENATOR DONLEY said he would like a                                                                  
judgement entered in every case. If a person can show economic                                                                  
hardship, the court could then reduce or stay the judgement.                                                                    
Number 242                                                                                                                      
SENATOR DONLEY moved as Amendment #2 to replace the word "may" on                                                               
page 1, line 5 with the word "shall." Without objection, Amendment                                                              
MR. WOOLIVER said he thinks the discretion offered by the word                                                                  
"may" is not commonly exercised. SENATOR DONLEY remarked that was                                                               
good, and this change makes the statute more consistent with the                                                                
court rule.                                                                                                                     
MS. DIANE WENDLANDT, supervisor of the collections unit of the                                                                  
Department of Law, commented on the fiscal aspect of the bill. She                                                              
answered SENATOR DONLEY's earlier question by testifying that                                                                   
judgements are ordered in approximately 51% of convicted cases. The                                                             
fiscal note is based on fees assessed on an additional 2,300 cases                                                              
and equals approximately $224,000 in revenue. However, under SB
100, the waiver rate for judgements may increase. The cost to                                                                   
implement the bill is estimated at $26,000. She said her office                                                                 
also deals with remands (refunds), when they are ordered by the                                                                 
CHAIRMAN TAYLOR asked why the court would ever refund money under                                                               
the new form of the bill that requires payment from all. MS.                                                                    
WENDLANDT replied the court sometimes refunds money taken from a                                                                
PFD and, "We're in a position where we do what the court tells us                                                               
. . . "                                                                                                                         
SENATOR HALFORD suggested the committee make that provision more                                                                
clear. CHAIRMAN TAYLOR remarked, "They've already got the entire                                                                
exemption statute . . . you have to have someone earning $38,000 or                                                             
40-some-thousand a year before you can execute on them . . . "                                                                  
Number 342                                                                                                                      
SENATOR TORGERSON suggested changing the word "shall," on page 1,                                                               
line 9 and line 11, to "may." He moved this change as Amendment #3.                                                             
Without objection, Amendment #3 was adopted.                                                                                    
SENATOR TORGERSON asked if this would require a court rule change.                                                              
MR. WOOLIVER said the court rules applicable to this provision are                                                              
substantive, not procedural, and only reflect the statute.                                                                      
Number 398                                                                                                                      
SENATOR HALFORD suggested strengthening the wording in line 13. As                                                              
Amendment #4, he moved to insert the word "only" to page 1, line                                                                
13, before the phrase "the unpaid portion . . . " Without                                                                       
objection, Amendment #4 was adopted.                                                                                            
CHAIRMAN TAYLOR moved Amendment #5: place a period at the word                                                                  
"judgement" on page 1, line 13, and delete through the phrase                                                                   
"immediate family" on page 2, line 1. Without objection, Amendment                                                              
Number 420                                                                                                                      
SENATOR DONLEY explained an old piece of legislation he had drafted                                                             
in 1995 that eliminates the current standard of providing a public                                                              
defender "to the same extent as a person retaining an attorney is                                                               
entitled." He said this standard has been used in cases to provide                                                              
multiple public defenders for one individual. This amendment would                                                              
eliminate that language in the current law and replace it with a                                                                
standard requiring "what is required by the U.S. Constitution and                                                               
the State Constitution." He moved as Amendment #6 the incorporation                                                             
of his old legislation, marked 9-LS1072\A, into SB 100 to achieve                                                               
that goal. He noted the change may require the use of the more                                                                  
general title of the old legislation. Without objection, Amendment                                                              
SENATOR HALFORD commented that he is aware of a judge in one                                                                    
community who appoints counsel for people because there is no                                                                   
private attorney in town. He wondered if this could be "cured" in                                                               
this bill. SENATOR DONLEY predicted there might never be private                                                                
counsel in this community since people are being represented for                                                                
free. CHAIRMAN TAYLOR said the question is really the definition of                                                             
the word "indigent." He thought, depending on the magnitude of the                                                              
case, most people could be considered indigent. SENATOR HALFORD                                                                 
added that even a certain Anchorage developer with a tremendous                                                                 
cash flow could prove he was indigent.                                                                                          
Number 465                                                                                                                      
CHAIRMAN TAYLOR announced a committee substitute for SB 100 would                                                               
be before the committee Wednesday. SENATOR HALFORD said he would                                                                
appreciate any refinement of the definition of indigent possible.                                                               
MR. WOOLIVER noted that the court has just adopted several changes                                                              
regarding the indigence standard, suggested in the recent                                                                       
Legislative Budget and Audit review. He suggested the committee                                                                 
look at those changes that attempt to standardize the appointment                                                               
of public defenders.                                                                                                            
MR. WOOLIVER explained that if a person is found not to be                                                                      
indigent, they can either drop the public defender or retain them                                                               
at full price (not the Rule 39 schedule fee).                                                                                   
Number 490                                                                                                                      
SENATOR TORGERSON asked who sets and adjusts the fees under Rule 39                                                             
and if the fees include an area cost differential. MR. WOOLIVER                                                                 
replied it is currently a flat rate and he is not certain when it                                                               
was last adjusted. He stated he would inform the committee after                                                                
researching the question.                                                                                                       
          SB 1-NO MANDATORY PAROLE RELEASE WITHOUT GED                                                                          
SENATOR DONLEY said everyone is concerned with recidivism and we                                                                
all want people who come out of prison to try to avoid future                                                                   
crimes. He said he has read articles that cite illiteracy as one of                                                             
the biggest factors fueling juvenile crime. SB 1 will encourage                                                                 
rehabilitation and reformation, as dictated in the constitution, by                                                             
making good time contingent on prisoners attaining certain                                                                      
educational requirements. This means while people are incarcerated                                                              
they will obtain their General Education Degree (GED).                                                                          
SENATOR DONLEY said                                                                                                             
SB 1 is not a new idea and is in place to varying degrees in                                                                    
Florida, California, Colorado, Tennessee, Virginia and Texas. He                                                                
said the committee substitute for SB 1 incorporates a suggestion                                                                
made by the Department of Corrections that applies the bill only to                                                             
prisoners who are to be incarcerated for two or more years.                                                                     
Number 545                                                                                                                      
SENATOR DONLEY moved CSSB 1 (JUD). Without objection, the committee                                                             
substitute was adopted.                                                                                                         
CHAIRMAN TAYLOR asked why non-eligibility for prisoners sentenced                                                               
to 99 years is deleted in the committee substitute.  MR. JAMES                                                                  
ARMSTRONG, staff to SENATOR DONLEY, replied that that provision is                                                              
"picked up in Section 4."                                                                                                       
SENATOR HALFORD agreed with the idea behind the bill, but expressed                                                             
concern about how the bill might apply to older village Alaskans to                                                             
whom English may be a second language, and who might have a hard                                                                
time attaining these educational requirements. He said natives are                                                              
now proportionally "out of whack" in the correctional system and he                                                             
does not want to make that worse. SENATOR DONLEY pointed out the                                                                
clause in the bill that made the requirement inapplicable to anyone                                                             
"incapable of attaining a diploma or its equivalent." SENATOR                                                                   
HALFORD replied, "I'm uneasy with stating that those people who may                                                             
be smarter than the rest of us in a lot of unquantifiable ways are                                                              
incapable - that's a hard statement . . . I don't want to state                                                                 
there is any inability . . . " SENATOR DONLEY suggested an "extreme                                                             
hardship" standard and SENATOR HALFORD replied, "Well, for some of                                                              
these people, they deal with extreme hardship all their lives,                                                                  
except when they're in the prison system." SENATOR DONLEY concluded                                                             
by saying he is open to addressing this issue.                                                                                  
Number 575                                                                                                                      
SENATOR TORGERSON asked if the State administers the GED test in                                                                
languages other than English. MS. BETSY ROBSON testified from                                                                   
Anchorage via teleconference that the GED is now administered only                                                              
in English. SENATOR TORGERSON said, "I don't agree with SENATOR                                                                 
HALFORD's comments . . . I can't believe that is the only document                                                              
that we haven't transmitted into another language when we do                                                                    
everything else."                                                                                                               
TAPE 99-18, Side B                                                                                                              
Number 591                                                                                                                      
MS. ROBSON, representing the Department of Corrections, said the                                                                
bill is based on a good concept, but she has some concerns about                                                                
program applications and financial considerations. Specifically, to                                                             
implement the bill, the Department would have to identify the                                                                   
inmates who need to complete the program, give them a screening                                                                 
test to determine their educational level, determine which inmates                                                              
may have special educational needs, organize study groups, and                                                                  
withhold parole for those inmates who do not achieve the required                                                               
educational goal.                                                                                                               
CHAIRMAN TAYLOR asked if a part of the Department's budget is                                                                   
already allocated for educational programs for inmates. MS. ROBSON                                                              
said a small portion is, but this program would require additional                                                              
CHAIRMAN TAYLOR remarked that a significant amount of money comes                                                               
from prisoners and is conveyed to the Violent Crimes Commission and                                                             
used for educational programs for prisoners. SENATOR DONLEY said                                                                
some of this money is allocated for "gate money" and some goes to                                                               
inmate programs.                                                                                                                
Number 548                                                                                                                      
MR. BLAIR MCCUNE, representing the Alaska Public Defender Agency,                                                               
questioned whether a public defender would be required to represent                                                             
inmates in a parole board hearing resulting from their failure to                                                               
complete the GED program. He asked who would determine which                                                                    
inmates are incapable of achieving the GED. He wondered how the GED                                                             
program would fit with other inmate programs such as substance                                                                  
abuse education and sex offender treatment.                                                                                     
MR. MCCUNE said currently, prisoners have their needs assessed by                                                               
an institutional probation officer who identifies their needs and                                                               
places them into the proper programs. He worries that the GED                                                                   
program might take a backseat to a more pressing need such as a                                                                 
substance abuse program.                                                                                                        
SENATOR DONLEY asked MR. MCCUNE if it was a statutory requirement                                                               
to have a public defender represent prisoners at parole hearings.                                                               
MR. MCCUNE said it is. SENATOR DONLEY asked if it is a                                                                          
constitutional requirement. MR. MCCUNE explained he believes there                                                              
is a case to require representation, at least in the adjudicatory                                                               
portion of parole revocation hearings. He said he would research                                                                
this and inform the committee of his findings. CHAIRMAN TAYLOR said                                                             
it seemed plausible that representation would be required in                                                                    
revocation hearings, but he did not think it would be necessary at                                                              
all parole board hearings.                                                                                                      
Number 494                                                                                                                      
MS. ROBSON pointed out the sharp increase in the funding necessary                                                              
in fiscal year 2003 (FY 2003). This is due to the increase in  time                                                             
of incarceration for those inmates who fail to attain their GED.                                                                
She is concerned that this type of punitive measure is inconsistent                                                             
with the intent to positively motivate offenders to participate in                                                              
programs. Many states look toward positive incentives, rather than                                                              
sanctions. She urged the committee to consider this and suggested                                                               
this approach might reduce the fiscal note and have a more positive                                                             
effect on inmates. SENATOR DONLEY responded that if we shared the                                                               
national standard for good time, that would be a viable option.                                                                 
Since we have the most permissive good time standard, it is not.                                                                
Number 465                                                                                                                      
MR. BRUCE RICHARDS, also representing the Department of                                                                         
Corrections, explained that other states like Florida, have                                                                     
meritorious GED and literacy programs. He says the Department                                                                   
expects some inmates will fail to complete the GED program, for                                                                 
educational or disciplinary reasons, and that is the reason for the                                                             
fiscal note.                                                                                                                    
CHAIRMAN TAYLOR commented that, in his experience as a judge, a                                                                 
court order to complete a GED program was always obeyed.                                                                        
MR. MICHAEL STARK, representing the Department of Law, made the                                                                 
point that those inmates who are not released on parole will "go                                                                
cold turkey into the community - no supervision . . . we can't                                                                  
underestimate the value of parole and probation supervision to help                                                             
somebody reintegrate into society after they've done a number of                                                                
years in prison."                                                                                                               
MR. STARK noted that voters passed an "official English" initiative                                                             
so he does not know if the test could be administered in other                                                                  
languages. Also, some native languages are primarily verbal                                                                     
languages and would not adapt well to the written GED test. He said                                                             
a meritorious incentive program might address SENATOR HALFORD's                                                                 
concern to the extent that inmates who do not attain the GED would                                                              
not be penalized.                                                                                                               
MR. STARK suggested amending the statute to ensure the program                                                                  
would be made available to inmates before they can be required to                                                               
participate in it.                                                                                                              
MR. STARK said the bill raises some due process concerns and                                                                    
regulations and procedures will need to be developed to deal with                                                               
challenges to an inmate's capability to attain a GED. CHAIRMAN                                                                  
TAYLOR, in reference to the fiscal note submitted, remarked,                                                                    
"Somebody within the Department has already made some significant                                                               
assumptions about how many people are going to be incapable or                                                                  
refuse to do it . . ."                                                                                                          
Number 392                                                                                                                      
SENATOR HALFORD said the question of penalties or incentives is one                                                             
of semantics and his concern could be addressed by requiring a GED                                                              
or "an increase in whatever . . .  they start from. I don't want to                                                             
see us create something that is another screen that keeps more                                                                  
Alaska natives in and lets more nonnatives out."                                                                                
CHAIRMAN TAYLOR announced the bill would be held for work in the                                                                
Judiciary Committee.                                                                                                            
           SB  96-ACCESS TO CRIMINAL HISTORY RECORDS                                                                            
CHAIRMAN TAYLOR explained, "This is the revisor's bill, revised."                                                               
He said the committee's concern was that the offenses in the bill                                                               
would not include "attempted mooning." He noted the definition in                                                               
the bill does include domestic violence, a charge that he believes                                                              
is sometimes abused.                                                                                                            
Number 350                                                                                                                      
SENATOR ELLIS asked how the bill's 5-day review requirement for                                                                 
reimbursement billings is enforced. MS. KATHY TIBBLES said these                                                                
requests, when submitted by other entities are easily reviewed and                                                              
returned. However, she said, there is not a good mechanism in place                                                             
to review and return claims from private providers in villages.                                                                 
Number 328                                                                                                                      
CHAIRMAN TAYLOR said the 5-day requirement is existing law. MS.                                                                 
TIBBLES agreed and said the only change under SB 96 is the extent                                                               
of review the Department is required to conduct.                                                                                
SENATOR ELLIS asked if the committee had received input on the bill                                                             
from the Division of Occupational Licencing. CHAIRMAN TAYLOR had                                                                
not seen any and agreed he would also like to hear from them.                                                                   
SENATOR ELLIS commented this bill could have a major impact on                                                                  
someone's life if a mistake is made.                                                                                            
Number 298                                                                                                                      
SENATOR HALFORD asked why, under this bill, a license could still                                                               
be revoked for a conviction, indictment or presentment of a crime.                                                              
He asked why a charge or presentment (without a conviction) would                                                               
impair a person. He said this seems to be a serious violation of                                                                
civil rights. CHAIRMAN TAYLOR agreed.                                                                                           
SENATOR HALFORD said he understands why a person's rights could be                                                              
taken away temporarily while they are under indictment. CHAIRMAN                                                                
TAYLOR said this bill precludes licensure of anyone who has been                                                                
charged of any crime covered under the bill within a 10-year                                                                    
period, even if they are found not guilty. CHAIRMAN TAYLOR                                                                      
explained this is existing law, though he thinks it cannot be                                                                   
enforced. SENATOR HALFORD added, "It certainly shouldn't be."                                                                   
Number 273                                                                                                                      
MS. TIBBLES said the regulations that the Department has developed                                                              
have more to do with convictions than charges. CHAIRMAN TAYLOR said                                                             
the committee will look at the bill further and work on the issues                                                              
With no further business to come before the committee, CHAIRMAN                                                                 
TAYLOR adjourned the meeting at 3:05 p.m.                                                                                       

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