Legislature(1999 - 2000)
03/15/1999 01:44 PM Senate JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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 consideration. 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 none. 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 court. 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 funding. 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 raised. With no further business to come before the committee, CHAIRMAN TAYLOR adjourned the meeting at 3:05 p.m.