Legislature(1999 - 2000)

03/26/1999 01:42 PM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
              SENATE JUDICIARY COMMITTEE                                                                                        
                    March 26, 1999                                                                                              
                      1:42 p.m.                                                                                                 
MEMBERS PRESENT                                                                                                                 
Senator Robin Taylor, Chairman                                                                                                  
Senator Rick Halford, Vice-Chairman                                                                                             
Senator Dave Donley                                                                                                             
Senator Johnny Ellis                                                                                                            
MEMBERS ABSENT                                                                                                                  
Senator John Torgerson                                                                                                          
COMMITTEE CALENDAR                                                                                                              
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                                                                                                            
PREVIOUS SENATE COMMITTEE ACTION                                                                                                
SB 96 - See Judiciary Committee minutes dated 3-15-99, 3-17-99 and                                                              
WITNESS REGISTER                                                                                                                
Mr. Jerry Luckhaupt, Legislative Counsel                                                                                        
Legislative Legal and Research Services                                                                                         
130 Seward Street, suite 409                                                                                                    
Juneau, AK 99801-2105                                                                                                           
POSITION STATEMENT:  Offered testimony on SB 96                                                                                 
Ms. Jane Demmert, Executive Director                                                                                            
Alaska Commission on Aging                                                                                                      
PO Box 110209                                                                                                                   
Juneau, AK 99811-0209                                                                                                           
POSITION STATEMENT:  Commented on SB 96                                                                                         
ACTION NARRATIVE                                                                                                                
TAPE 99-22, SIDE A                                                                                                              
Number 001                                                                                                                      
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to                                                                 
order at 1:42 and announced CSSB 96 would be the only order of                                                                  
          CSSB  96-ACCESS TO CRIMINAL HISTORY RECORDS                                                                           
CHAIRMAN TAYLOR explained SB 96 had been heard before and Senator                                                               
Torgerson had some concerns about the range of crimes that would be                                                             
covered by the bill.                                                                                                            
Number 022                                                                                                                      
MR. JERRY LUCKHAUPT, Legislative Legal Counsel, came forward to                                                                 
explain the changes contained in the work draft before the                                                                      
committee. Section 1 has been changed to accommodate Senator                                                                    
Torgerson's concerns about the crime of mooning, attempted mooning,                                                             
and solicitation and conspiracy to commit mooning. These crimes are                                                             
no longer covered in the definition of "serious crimes" used in the                                                             
bill, though the rest of the work draft is the same as the previous                                                             
committee substitute.                                                                                                           
CHAIRMAN TAYLOR asked if the bill still includes charges that do                                                                
not involve actual convictions. MR. LUCKHAUPT replied he had only                                                               
changed the definition of serious offenses in the bill, in response                                                             
to Senator Torgerson's concerns. He explained some sections of the                                                              
bill still include both past or present charges, as well as                                                                     
indictment or presentment of a crime, and in some cases a judgement                                                             
of not guilty by reason of insanity.                                                                                            
MR. LUCKHAUPT said the statutes the bill refers to are so muddled,                                                              
"I reached a point where I didn't know what to do . . . because the                                                             
statutes, specifically in A.S. 47.35 are totally contradictory to                                                               
each other." The statutes do not specify what convictions prohibit                                                              
a person from receiving a licence, and MR. LUCKHAUPT remarked, "I                                                               
just can't see right now, how the Department can actually grant                                                                 
licences or revoke licences, because the statutes are so                                                                        
contradictory . . . any action they take will violate one of the                                                                
statutes." He recommended the committee determine the intent of AS                                                              
47.35, and SENATOR HALFORD said, "Time for a 'repealed and                                                                      
reenacted to read', or 'notwithstanding any other provision in                                                                  
Number 157                                                                                                                      
MR. LUCKHAUPT said there are five different approaches in the                                                                   
current statutes; he suggested the committee could select one and                                                               
he could draft the rest to be consistent with it.                                                                               
SENATOR HALFORD suggested the committee look at the elements of                                                                 
crimes they want covered. He stated he would like to see a person                                                               
allowed to get a licence if they successfully defend themselves                                                                 
against a charge. He understands a temporary suspension for                                                                     
consideration of a charge, but does not think a licence should not                                                              
be granted or should be revoked for a mere charge, indictment or                                                                
presentment of a crime. SENATOR HALFORD concluded the standard                                                                  
should be the same for the issuance, renewal, and revocation of a                                                               
Number 180                                                                                                                      
CHAIRMAN TAYLOR said he feels a rewrite of the statute is                                                                       
necessary. The Department has had to enact regulations on all these                                                             
statutes and they must also be conflicting and convoluted.                                                                      
Additionally, the Department has had a policy shift toward placing                                                              
more children in foster homes and the result of this increased                                                                  
workload can be deadly for kids being placed in inappropriate                                                                   
homes. CHAIRMAN TAYLOR said these social workers are not evil or                                                                
malicious, but overwhelmed. He expressed appreciation to MR.                                                                    
LUCKHAUPT for identifying these problems.                                                                                       
MR. LUCKHAUPT said two of these statutes were enacted only last                                                                 
year and the rest of the statute has been amended within the past                                                               
three years. He said some of these bills had been "rushed through"                                                              
Legislative Legal and they have not been able to adequately review                                                              
the bills they have drafted.                                                                                                    
CHAIRMAN TAYLOR asked MR. LUCKHAUPT how the committee should                                                                    
proceed. He asked what kind of direction MR. LUCKHAUPT needs to                                                                 
construct a consistent framework with which to shape these                                                                      
statutes. He said the policy questions would be relatively easy to                                                              
make, the difficulty would be fleshing out the statutes and                                                                     
correcting all the inconsistencies.                                                                                             
Number 237                                                                                                                      
MR. LUCKHAUPT said the most recent legislative statement suggests                                                               
charges should be included, and judgements of not guilty by reason                                                              
of insanity should equate to a conviction. Additionally, it does                                                                
not treat a Suspended Imposition of Sentence (SIS) as a conviction.                                                             
SENATOR HALFORD insisted that a SIS is, in fact, a conviction. MR.                                                              
LUCKHAUPT clarified for this purpose a conviction requires both a                                                               
judgement and a sentence and there could be a case made against a                                                               
SIS as a conviction. He said the state has won cases like this in                                                               
court, "but, you never know what is going to happen when those                                                                  
cases go up higher through the court system."                                                                                   
MR. LUCKHAUPT asked the committee to cooperate with the Department                                                              
of Health and Social Services, look at the offenses listed in  AS                                                               
47.35.047 and choose those they would like retain.                                                                              
Number 272                                                                                                                      
SENATOR HALFORD said he agreed with everything MR. LUCKHAUPT had                                                                
said. He mentioned the right affected by this bill is the right to                                                              
take children into foster care for the state. This is not a                                                                     
constitutional right and does not have to be protected in the same                                                              
manner, nor to the same degree. Generally, he would say a right or                                                              
a privilege should never be taken away without a conviction, but in                                                             
this case he wondered if sometimes charges should be considered                                                                 
since certain charges are difficult to prove. A prosecutor may not                                                              
be able to reach the reasonable doubt conviction standard in cases                                                              
where something is clearly wrong. The Department should have some                                                               
discretion in this area.                                                                                                        
CHAIRMAN TAYLOR agreed, saying this is a significant privilege. He                                                              
added that even known pedophiles are usually not convicted until                                                                
they have been charged several times, and sometimes they are only                                                               
convicted in a civil trial using the preponderance of the evidence                                                              
standard. He concluded, "There has to be a way to provide at least                                                              
some discretionary opportunity to the person granting the licence                                                               
to look at those things . . . " MR. LUCKHAUPT provided examples of                                                              
people who have not been convicted of crimes and yet are not fit                                                                
parents for children. He believes the current statute is broadly                                                                
worded for just that reason, and allows the Department some measure                                                             
of discretion.                                                                                                                  
Number 353                                                                                                                      
SENATOR ELLIS asked if the chairman wanted to untangle this issue                                                               
this legislative session. CHAIRMAN TAYLOR replied initially, he                                                                 
wanted to give the Department some guidance in relation to                                                                      
background checks. He said now he would like to refer SB 96 to a                                                                
subcommittee and, with the help of the Department, see if they                                                                  
couldn't get it across the floor this session.                                                                                  
SENATOR ELLIS reminded everyone the bill deals with the care of                                                                 
vulnerable adults as well as children. MR. LUCKHAUPT mentioned he                                                               
had only changed the bill as it related to an old reference to                                                                  
crime, he had not made other changes. MR. LUCKHAUPT said he does                                                                
not usually draft legislation in this field. CHAIRMAN TAYLOR                                                                    
confirmed, "We'd like you to stay with this one."                                                                               
MR. LUCKHAUPT said it is an issue that is important enough to be                                                                
dealt with this session. He worries about what might happen if a                                                                
suit is brought against the state regarding the issuance,                                                                       
revocation or failure to revoke a licence. He suggested the                                                                     
Legislature and the Department choose the approach they would like                                                              
to take and put it on paper. CHAIRMAN TAYLOR replied his staff                                                                  
would be available to MR. LUCKHAUPT anytime, and he invited other                                                               
members and their staff to work on the issue also.                                                                              
MS. JANE DEMMERT, Executive Director of the Alaska Commission on                                                                
Aging, expressed concern about sections 5 and 6 of the bill. She                                                                
believes these sections will mandate that her agency review                                                                     
background checks. Currently, grantees or sponsors, as a condition                                                              
of receiving a grant, are required to review the information                                                                    
obtained through the background check and report it to the                                                                      
Commission. MS. DEMMERT would prefer the grantees continue to do                                                                
the review.                                                                                                                     
Number 420                                                                                                                      
CHAIRMAN TAYLOR asked MR. LUCKHAUPT if he could incorporate this                                                                
change into the legislation and MR. LUCKHAUPT replied, "That's a                                                                
problem." He explained it is his understanding that national                                                                    
records obtained for licencing or review can only be released to                                                                
the Department of Public Safety (DPS).  MS. DEMMERT thought that                                                                
any check that returns no result can be routed through to the                                                                   
Commission, and only those returning information need to be                                                                     
directed to DPS. MR. LUCKHAUPT believed that approach might work,                                                               
and noted it does not violate section 5 or 6 of the bill. He said                                                               
this process is  similar to what other agencies currently do, but                                                               
he emphasized if any type of record is returned, it must go                                                                     
directly to DPS. CHAIRMAN TAYLOR asked MR. LUCKHAUPT to double                                                                  
check on the acceptability of this process.                                                                                     
Number 476                                                                                                                      
CHAIRMAN TAYLOR commented that we now have a technologically                                                                    
advanced Insta-check system for gun purchases, but no way to check                                                              
on people who want to house foster children in their home.                                                                      
CHAIRMAN TAYLOR asked if there were other witnesses wishing to                                                                  
testify on SB 96. Hearing none, and having no further business to                                                               
come before the committee, CHAIRMAN TAYLOR adjourned the meeting at                                                             
2:19 p.m.                                                                                                                       

Document Name Date/Time Subjects