Legislature(2001 - 2002)
02/20/2002 01:42 PM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
SENATE JUDICIARY COMMITTEE
February 20, 2002
1:42 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chair
Senator Dave Donley, Vice Chair
Senator John Cowdery
Senator Gene Therriault
Senator Johnny Ellis
MEMBERS ABSENT
All Members Present
COMMITTEE CALENDAR
SENATE BILL NO. 273
"An Act extending the termination date of the Board of Governors
of the Alaska Bar Association."
MOVED SB 273 OUT OF COMMITTEE
CS FOR HOUSE BILL NO. 40(FIN)
"An Act providing for the revocation of driving privileges by a
court for a driver convicted of a violation of traffic laws in
connection with a fatal motor vehicle or commercial motor vehicle
accident; amending Rules 43 and 43.1, Alaska Rules of
Administration; and providing for an effective date."
HEARD AND HELD
SENATE CONCURRENT RESOLUTION NO. 25
Relating to the public trust for fish and wildlife in Alaska.
MOVED CSSCR 25 OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
No previous action recorded.
WITNESS REGISTER
Pat Davidson, Legislative Auditor
Legislative Audit Legislative Affairs Agency
P.O. Box 113300
Juneau, AK 99801-3300
POSITION STATEMENT: Supports SB 273
Deborah O'Regan, Executive Director
Alaska Bar Association
510 L. St., Suite 602
Anchorage, AK 99501
POSITION STATEMENT: Testified on SB 273
Mauri Long, President
Alaska Bar Association
510 L. St., Suite 602
Anchorage, AK 99501
POSITION STATEMENT: Testified on SB 273
Steve Conn, Executive Director
Alaska Public Interest Research Group
P.O. Box 10-1093
Anchorage, AK 99510
POSITION STATEMENT: Testified on SB 273
Annie Carpeneti, Assistant Attorney General
Criminal Division, Department of Law
P.O. Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Supports HB 40
Mark Campbell
P.O. Box 3075
Palmer, AK 99645
POSITION STATEMENT: Supports HB 40
Albert Taylor
No address given
POSITION STATEMENT: Supports HB 40
Mary Marshburn, Director
Division of Motor Vehicles, Department of Administration
3300B Fairbanks St.
Anchorage, AK 99503
POSITION STATEMENT: Testified on HB 40
Dale Bondurant
Alaska Constitution Legal Defense and Conservation Fund
31864 Moonshine Dr.
Soldotna, AK 99669
POSITION STATEMENT: Supports SCR 25
Jesse VanderZanden, Executive Director
Alaska Outdoor Council
P.O. Box 73902
Fairbanks, AK 99707
POSITION STATEMENT: Supports SCR 25
Austin Ahmasuk
Nome, AK
POSITION STATEMENT: Opposes SCR 25
Don Johnson
Soldotna, AK
POSITION STATEMENT: Supports SCR 25
Warren E. Olson
Alaska Constitutional Legal Defense Conservation Fund
No address given
POSITION STATEMENT: Supports SCR 25
Ted Popely, Majority Counsel
Majority Legal Office
State Capitol, Rm. 116
Juneau, AK 99801
POSITION STATEMENT: Testified on SCR 25
ACTION NARRATIVE
TAPE 02-05, SIDE A
CHAIRMAN ROBIN TAYLOR called the Senate Judiciary Committee
meeting to order at 1:42 p.m. Present were Senator Cowdery,
Senator Therriault and Chairman Taylor. Senator Ellis arrived at
1:45 p.m. and Senator Donley arrived at 2:10 p.m. The first
order of business was SB 273.
SB 273-EXTEND BOARD OF GOVERNORS OF AK BAR ASSN
MS. PAT DAVIDSON, Legislative Auditor, said in accordance with
statutes Legislative Budget and Audit conducted a sunset audit of
the Board of Governors of the Alaska Bar Association (Bar). The
conclusion they reached was the Bar is functioning and is
providing qualified applicants for licensure to the State of
Alaska. They found the Bar is working generally in an efficient
and effective manner. Therefore they recommend the legislature
extend the termination date of the Bar until June 2006.
MS. DAVIDSON said they made a couple of recommendations. But she
did not think they are of import that it would affect the
extension date of the Bar at all.
CHAIRMAN TAYLOR said as usual her department had done an
excellent job and he thanked her and her staff for the quality of
work he had seen over the last several years.
SENATOR THERRIAULT said a concern had been expressed to him over
whether the Bar should conduct itself more like a board and
commission. He asked if that was something that she reviewed or
heard about.
MS. DAVIDSON said one of the questions that had come up was the
fact that the Bar Association does act more independently with
regard to its budget than most Executive Branch Boards and
Commissions. They did a little research on that. She said she
was not an attorney and could not succinctly put the argument.
It has to do with the Alaska Constitution providing the court
system with certain powers and duties to administer itself. This
Bar Association function comes under that. It is by court rule
that the fees are paid the way they are. So the Supreme Court is
the administering body of the Bar Association. She expected an
attorney could give them a more succinct explanation of that but
it has to do with it being wrapped up in what the Constitution
gives the Supreme Court in terms of ability and then it goes into
the court rules.
SENATOR THERRIAULT said the court system is a separate branch of
government but the legislature still budget for them. He said he
did not believe even in the budget they pass for the court system
that the Bar function is a subset in that budget. He believed it
appeared nowhere.
MS. DAVIDSON said that was true. While the court system budget
itself does go through the legislative process this one does not.
It is not included in the court system's budget. For all intents
and purposes it is off budget.
SENATOR THERRIAULT said there was some question of whether that
is what it should be.
MS. DEBORAH O'REGAN, Executive Director, Alaska Bar Association,
said it is correct that the Bar is under the judicial branch of
the government. It is correct that they do not find them in the
court system budget because the Bar Association receives no state
funding whatsoever. All the funding for the Bar Association
comes from bar member dues, admission fees, seminar fees and that
kind of thing. All the money is privately raised. They have not
received any money from the state since 1986 when the legislature
last gave them some funding for the public members on the board.
There are three public members on the board that are appointed by
the governor and the Bar Association does pay for the travel and
per diem for those public members.
SENATOR THERRIAULT said in the current statute all boards and
commissions have to be self-funding basically and they do that by
raising licensing fees. Those monies do come into the state and
they have to be appropriated back out for that function. In
addition, boards and licensing commissions have to make sure they
are not overcharging. There is a function so that if they raise
more money than it takes to perform the function then the fees go
down the next year. Part of the question he had heard was
whether that same mechanism is available to attorneys that pay
the Bar fee and if not why not.
MS. O'REGAN said the Alaska Bar Act Statute does give the board
the power and the duties to set the budget for the Bar
Association and to expend money. She thought because they are
not a state agency but rather an instrumentality of the state
they don't have the same requirements as all of the state
agencies because they are not a state agency they are an
instrumentality of the state under Alaska Statute.
MS. MAURI LONG, President, Alaska Bar Association, apologized for
her late arrival. She said she heard a good part and thought Ms.
O'Regan had answered well. She said they are not responsible for
setting themselves up but did not hear the question initially so
was not sure if there was anything she could add. She said if
they had specific questions she would be happy to answer them.
MR. STEVE CONN, Executive Director, Alaska Public Interest
Research Group (AKPIRG), said the testimony he would share with
the committee was created and is being communicated to them by a
subset of their operation, Barbara Williams, who is the President
of Alaska Injured Workers Alliance. She provides representation
of a voluntary and lay nature to injured workers engaged in
workers compensation hearings in both administrative and court
hearings. He said he would be speaking as if he were her.
MR. CONN explained these hundreds of workers, including one that
she was working with at that minute, cannot find representation
because only a handful of attorneys take workers compensation
cases. Some of these people suffer not only from the physical
disability but also from mental illness. Almost all these
injured workers confront licensed Alaskan attorneys on the other
side. She asked the Bar repeatedly to spot check hearings where
attorneys represent one side but not the other to see if ethical
violations or other unusual or overbearing conduct occurs. She
did not seek attendance at every hearing but spot-checking. The
Bar refuses saying that its budget is insufficient and people
like these should file ethics complaints. These clients cannot
tell when ethical violations occur.
He said the Legislative Audit encourages the Bar to make sure
lawyers on the referral list are qualified. But what it doesn't
mention is that many of the people who call the lawyers on the
list to whom they are referred are turned down. He said Ms.
Williams knows this is the case with workers compensation cases.
There is really only one attorney on the list. All the private
attorneys refer injured workers to her. He noted that on page 21
where they have the statistics, 320 people, and something close
to that each and every year, sought referrals for workers
compensation in 2001. He asked where they went and who helped
them. The Bar does not follow up to discover how many referrals
actually took place and what service was received. In other
words there is no quality or consumer evaluation except when it
comes in the form of an ethics complaint. The referral process
becomes mere window dressing.
MR. CONN said Ms. Williams concluded by urging them to mandate
evaluation from the consumer perspective of the referral process.
She urged them to mandate spot checks by the ethics staff of the
board the administrative and judicial hearings where licensed
attorneys come up against un-represented working people. He
urged them to seek an amendment to the composition of the Bar
Association to include not just any public member but one who is
familiar with the masses of people who must either be un-
represented or helped by a volunteer. She thanked the committee.
CHAIRMAN TAYLOR asked Mr. Conn to carry his words back to Ms.
Williams. He said the bill is before them and it is probably
because it is a target of opportunity to criticize the Bar who at
least tries to have some level of referrals. The true villain in
this process is the legislature. The last time they did one of
those group grope operations where they brought in the employers
and all the unions, they sat down and cut a deal that basically
sold the injured workers of our state right down the river.
Sadly what happened is an attorney cannot charge an attorney's
fee to a workers compensation client. That fee can only be paid
by the Workers Compensation Board. The Workers Compensation
Board has been set up with a schedule of payments and fees and so
on that makes it almost impossible for anyone to represent folks
in the workers compensation field and make money doing it. What
they probably ought to do in the legislature is mandate that all
doctors in the state have to do appendectomies for free and we
will see how many appendectomies get done too. They won't do it
either.
CHAIRMAN TAYLOR said the real problem is right here in Juneau and
he would be happy to work with anyone who wishes to address that
problem and take it on. But the forces allied against them come
both from the private sector and the union sector. They felt
they made the best deal they could and they don't want to open
that can of worms without recreating that entire task force and
spending a couple of years to do it.
He said Ms. Williams is absolutely correct in her frustration.
He said as an attorney who has not done workers compensation work
for many years, he continually finds himself referring people to
Chancy Crofts office in Anchorage in the hope he may be able to
find time to help them. He is one of the only ones Chairman
Taylor knew of doing the work. It is a very frustrating thing
and he believes the Bar probably shares the level of frustration
that Ms. Williams talked about. If somebody can find a third
party negligence growing out of a workers compensation case they
will usually find somebody that will take the case in the hopes
they can then seek subrogation against the third party defendant
and actually get some level of compensation for the amount of
work they have done. In Alaska today very few people are willing
to work for nothing and that is about what it amounts to when you
take on a workers compensation case. He said he appreciated Ms.
Williams' comments very much and Mr. Conn taking the time to
bring them before the committee.
MR. CONN said he would return to the office and share Chairman
Taylor's thoughts with her.
CHAIRMAN TAYLOR said if Mr. Conn can find support for that effort
he pledged to him that he would help lead that attack because it
desperately needs to be done. The injured workers of Alaska are
not being taken care of. He said he guaranteed when workers go
into a court room the insurance industry has the best attorneys
money can buy standing there beating the heck out of them and
doing video tapes of them and all kinds of other things and they
have a whole cadre of doctors that in his opinion are little more
than prostitutes for the insurance industry. There is
legislation pending for that because of the notorious reputation
that many of these doctors have. They always seem to show up at
workers compensation hearings and they can never find that the
worker was ever injured and they just happen to be making
thousands and thousands of dollars every year off the insurance
industry. Chairman Taylor said it is a major problem and one he
would be happy to work on. He believed many others around the
legislature felt as he does and would be willing to work with
them on it. He told Mr. Conn if he wants to take this one on it
is an 800-pound gorilla.
SENATOR COWDERY made a motion to move SB 273 to the next
committee of referral with individual recommendations. He asked
for unanimous consent. There being no objection, the motion
carried.
HB 40-REVOKE DRIVER'S LIC. FOR FATAL ACCIDENT
MS. ANNE CARPENETI, Assistant Attorney General, Criminal
Division, Department of Law (DOL), said HB 40 addresses a problem
that does not arise very often but when it does it creates a
serious public safety problem. It also can create a lot of
anguish in the family of victims who are killed in automobile
accidents.
She described the situation when a motor vehicle accident is
caused by a person who violates a traffic law but does not commit
a crime but non-the less a death is caused. HB 40 addresses this
situation by requiring the court to revoke the driving privileges
for one year of a person who is convicted of violating a traffic
law and the violation was a significant contributing cause of an
accident resulting in the death of another person.
MS. CARPENETI explained that specifically before this license
revocation can occur:
· First a judge must find beyond a reasonable doubt that the
person committed the traffic violation.
· Then by clear and convincing evidence the court must find;
o The person was operating the motor vehicle that was
involved in the accident.
o The accident caused the death of another person.
o The violation of the traffic law was a significant
contributing factor in causing the accident and death.
She said the bill does allow a court to consider a request by the
driver for limited driving privileges. If the person can
establish that his or her ability to earn a living would be
severally impaired by loss of driving privileges the court can
issue a limited license for that purpose. In the House Judiciary
Committee they added another possibility for a limited license.
If the person can establish that his or her ability would be
severely impaired to give assistance as a primary care giver to
another person who is disabled the court could entertain a
request for a limited license.
MS. CARPENETI said when people drive in an unsafe way even if
they do not commit a crime but cause the death of another person
their privilege to drive should be revoked to protect other
drivers on the road, their passengers and people walking on
roads.
CHAIRMAN TAYLOR explained he did not have a problem with the
thrust of the bill. It was again a mandatory minimum, which he
always opposed in the court system, because he thought mandatory
minimums become the sentence. For example they have a three-day
mandatory minimum on drunk driving so what does every single
drunk driver get, three days. He said it is called mandatory
minimum but judges never seem to read the word minimum. They do
not give longer sentences because they get scared as soon as they
pop somebody for ten or fifteen days on a first offense every
public defender is going to make certain that they are
disqualified from ever doing a drunk driver case. Public
defenders probably should act on the behalf of their client. He
said these things sound like they are somewhat discretionary
within the law but once they establish these parameters of
mandatory revocation they become the only revocation. He said he
was concerned about that aspect of it.
CHAIRMAN TAYLOR gave an example of the other aspect that
concerned him. A single mom commuting home from work has picked
both her kids up. She slides on the ice and has a one-car
accident. She doesn't impact anyone else. The car flips around
a couple of times and one of the children is killed. Now she
just lost one of her children and on top of that somebody is
going to say she had been driving to fast for road conditions or
whatever because every officer that shows up at a wreck site
feels compelled to find some violation for the wreck having
occurred. Accidents don't happen anymore it was because you
violated something. He asked if they would suspend her driver's
license for one year when she has already lost a child in this
process. He said he was not talking about some drunk driver or
someone that is negligently driving and killing some stranger.
MS. CARPENETI said that was correct, if she was driving drunk
they could revoke her license for that reason. She said she did
share his frustration about mandatory minimums. She thought it
was shocking that everybody who is convicted goes to jail for
three days because drunk driving cases can be really varied. She
said in a sense this was not a mandatory minimum because there is
no range. It is a mandatory one-year. They don't range from
one to five years it's a one-year revocation.
MS. CARPENETI said the person Chairman Taylor was talking about
would have to be convicted and proven to have violated the
traffic ordinance beyond a reasonable doubt by a court. She
would be given a court appointed council and a jury trial in the
endeavor to determine whether or not she was guilty of the
traffic violation. Then the court would have to find by clear
and convincing evidence that whatever violation she was convicted
of was a significant contributing factor to the death of her
child. Ms. Carpeneti understood that would be a terrible
situation for any person to be in but maybe she should not be
driving her other child who is still alive.
CHAIRMAN TAYLOR said you are going to keep her off the road for
one year. That is what you are going to do.
MS. CARPENETI said under the circumstances but the court has to
jump through many hoops before it can come to that determination.
By the possibility of a driver's license loss she would have the
right to court appointed counsel and a trial by jury and some of
the other guarantees attended on a criminal case.
CHAIRMAN TAYLOR said he did not think the committee had any
concerns or objections to the 25 year old doing a 100 mph down
the Glen Highway and crossing the meridian or something. In
those instances the prosecutors office, our district attorney
would normally be charging negligent homicide, seeking a felony
charge and some serious time in jail. He said as far as he knew
our people are not reluctant to do that. This person is
distracted for a moment and instead of stopping on the yellow
light has gone on through it and t-boned somebody in the middle
of an intersection. Accidents do happen and yes there may have
been a violation but in this instance all you need prove is any
violation of any traffic law.
MS. CARPENETI said it would have to be a moving violation.
CHAIRMAN TAYLOR said those are his concerns it is not that he
does not support the concept, he does. He thought it was
probably another tool in the toolbox that they may need but he
had those concerns and appreciated her answers.
SENATOR THERRIAULT said he appreciated Chairman Taylor's stated
concerns because he had a lot of the same ones. Accidents do
happen but the person who puts the pedal to the metal, that is
not an accident, that is a choice. The person that drinks too
much has made a choice. The person that is spinning his wheels
and doing the brodies, that is a choice. He said the scenario
that Chairman Taylor laid out is one, and there are others, where
this is just going too far.
SENATOR THERRIAULT said last year Representative Fate and
Representative Coghill and himself met with a group of
constituents in his district that live out on Chena Hot Springs
Road. They expressed a lot of concern with the fact that the
privilege on our highways was so often used as a club to try and
shape the actions of the public. It is little consolation to
them when you say, we have not taken away your right to travel
about the community when it is 40 below zero and you live out at
40-mile Chena Hot Springs Road. If they cannot drive their car
you have taken away their access, their ability, because many
times they can not even go to a neighbor next door because the
neighbor is maybe a mile away. He had concerns over the need for
the legislation.
MS. CARPENETI said it was brought to their attention by people
who have lost loved ones under these circumstances. For example
where the driver of a car had fallen asleep. This is a really
common problem not only in Alaska but throughout the country. It
is a common driving problem to fall asleep and then cross over
the centerline and kill somebody. They may only have a small
fine for doing so. It seemed to her for the safety of the
driving public it would be worthwhile for that person to take
some time off driving and maybe jump through the hoops necessary
to get a drivers license back after it had been revoked before he
or she thinks about driving when he or she is to tired or takes
their eyes off the road and causes such serious damage. She said
there were people on the teleconference that might help inform
the committee of the concerns that they brought to DOL.
SENATOR ELLIS asked about the language "contributing factor,
significant factor" and asked her to talk them through that.
MS. CARPENETI explained it is on page 2 of the bill. These terms
are terms judges use and apply all the time. The court must find
a person guilty of violating the traffic law by proof "beyond a
reasonable doubt" and the person must have a lawyer and the right
to a jury trial if he or she chooses. If a person is convicted
of a traffic law the court will revoke the privilege to drive if
the court finds by "clear and convincing evidence". "Clear and
convincing evidence" is a higher standard than "beyond a
reasonable doubt". You have to clearly show that the individual
was driving the motor vehicle in a car that was involved in an
accident. The accident caused another person's death and the
violation of the traffic law was a significant contributing cause
of the accident. So the court would have to make a finding by
clear and convincing evidence, the real crux of it is, that the
violation of the traffic law was the significant contributing
cause of the accident that resulted in the death of another
person in order to loose their license under this bill. These
are term that courts use all the time; significant, contributing
cause. She did not think there would be a problem with
definitions.
SENATOR DONLEY asked what happened to these people after they
lost their license and they go ahead and drive without it.
MS. CARPENETI said they would hope they did not but if they did
then they would be committing a crime.
SENATOR DONLEY asked what was the punishment for that crime.
MS. CARPENETI said she thought that was a maximum of one year in
jail.
SENATOR DONLEY said that was the maximum but was there any
minimum.
MS. CARPENETI said she did not believe so.
CHAIRMAN TAYLOR said he thought there was additional revocation
of license.
MS. CARPENETI said for conviction there could a revocation of
license and she thought for the first one it was only 60 days.
CHAIRMAN TAYLOR said they used to have a mandatory minimum on
that. It was like five or ten years and we had people caught
driving that couldn't get their license for 30 some years.
MS. CARPENETI said yes that used to be the most serious mandatory
penalty in the state in the 70's.
CHAIRMAN TAYLOR asked if she thought right now, in answer to
Senator Donley's question, it was probably 60 days for the first
violation.
MS. CARPENETI said that was right. For conviction of the first
offense and then one year for the second and three years for the
third.
SENATOR DONLEY asked when you are saying 60 days are you saying
the maximum allowable.
MS. CARPENETI said additional revocation of license for
conviction.
SENATOR DONLEY said he remembered voting against a piece of
legislation about ten years ago that revoked an existing law
where it was a mandatory ten days in jail if you drove on a
suspended license.
MS. CARPENETI said that was a time before they had mandatory
terms. That was the most serious mandatory sentence in the State
of Alaska in the 70's.
SENATOR DONLEY said now we don't have any minimum for a first
time violation for driving without a license.
MS. CARPENETI said she was looking at the revocation. Under AS
28.15.181 the first offense would be 60 days revocation of
license.
SENATOR DONLEY said and no mandatory jail time. Of course they
have already lost their license for a year then we take the
license for another 60 days.
CHAIRMAN TAYLOR said Senator Donley brought up a major issue,
directly related to this. They have set up a lot of laws so they
are going to result, especially with Driving While Intoxicated
(DWI), in revocation of a driving privilege or the opportunity to
get one for some term of years. They just keep driving; they
just go use somebody else's car and they just keep driving. It
is kind of like this hoop thing; you are always trying to catch
up with the end of it. From his discussions with state troopers
and city police officers it is a continuing and expanding
problem. They are not insured, they don't have a drivers license
but they are out there driving to and from work and they may be
legally driving down the road but they are illegal and should not
be there. He thought it is a concern many of them shared.
MS. CARPENETI said they shared that concern. This bill doesn't
necessarily address repeat drivers driving with their license
suspended or revoked but that is a concern because we all drive.
SENATOR THERRIAULT said along that line just look at the police
blotter in the newspaper. They get caught for drunk driving time
after time and also for a suspended license. That group of
people, because of the drinking, seems to get caught more often.
But the person who just ran through a red light or slipped off
the road and had a roll over not because they were hot roding or
anything, they are not necessarily going right back into the
system because they had a perfect driving record for 30 years and
just hit the slick spot the one time. They are going to be out
there driving with no license anyway. If we have learned one
thing from the DWI situation it is that they are going to drive
anyway. He said he understood the frustration of family members
seeing somebody who has caused the loss of a loved one being able
to continue to drive. But he thought this sort of a solution
really did not get them anywhere.
SENATOR COWDERY said if you get pulled over for a DWI and refuse
to do the breathalyzer that was an automatic loss of license but
it was not proven they were really under the influence. They
can't take breath samples without a search warrant unless there
is an accident involved and somebody is killed. He thought the
penalties that exist now did not solve anything. He thought they
should have far more stringent penalties.
MS. CARPENETI said there are a lot of problems with DWI and
refusing a breathalyzer. This legislation really is just focused
on maybe six to ten accidents that happen a year that result in a
death to a person by another person who was not committing a
crime. They were not committing reckless driving but may have
been driving negligently. For that reason they are not safe
enough drivers. They caused a death because of their careless
driving even though it did not arise to reckless driving or
criminal negligent homicide or a crime. But they were driving in
a careless manner and for that reason it seems reasonable to take
their license away for a period of time so maybe next time they
won't drive negligently.
SENATOR COWDERY said taking their drivers license away really
does something. Does that mean they are going to take a cab or
have somebody else drive them or does this mean if you don't
catch them they are going to drive, if you do catch them then
what.
MS. CARPENETI said if they did drive they are committing a crime.
We hope this would have some effect on drivers who loose their
license. She said she was sure there are a lot of people who
don't pay attention to court orders and revocation of license but
there are people who do.
MR. MARK CAMPBELL, Palmer resident, testified in support of HB
40. He shared from their own experience having lost their son in
an accident. In their circumstances they had a 19-year-old son
and he had a car full of kids with him. Another vehicle was
speeding in the opposite direction and that driver lost control
of their vehicle and collided with their son's car killing two
kids and injuring four others.
They found there was no recourse whatsoever. Within one year the
same young man that caused that accident had another accident
killing two other young men. They feel there needs to be
something if you are not under the influence of alcohol or drugs
but yet you are acting irresponsible with a vehicle. The courts
need to determine whether it is acting outside of a reasonable
manner. They lost a son, their good friends lost their son, and
four other children were hurt. The young man was speeding, lost
control of his vehicle and got a ticket for speeding. That was
it, a ticket for speeding. As a family of a victim he wanted to
see that there was something that would cause an individual to
take some time away from the privilege of driving.
MR. CAMPBELL said there needs to be something for the victim's
family from the person causing the loss. Sharing from his
experience they found there was nothing they could do. Then they
were terribly grieved over the fact that within a year another
two lives were lost in that situation.
CHAIRMAN TAYLOR said he did not understand on the first accident
why he was not charged with negligent homicide. Speeding alone
resulting in death should have been sufficient grounds for
negligent homicide and that is a felony. He asked if he was
charged for negligent homicide on the second incident.
MR. CAMPBELL said on the second incident he was driving the
vehicle and lost control. The other two boys that were killed
were not able to testify so there was no witness.
In the first situation the only eyewitnesses were in a vehicle
that was in front of him. They viewed his speed coming from
behind so rapidly that driver pulled over. The only way they
could testify that they felt he was speeding was through a
rearview mirror so again no eyewitness. Of course no one was
there to actually clock that he was speeding so they could only
judge it by the fact there were no skid marks on the highway. He
just simply lost control of his pickup.
CHAIRMAN TAYLOR said that was a terrible situation and was sorry
that Mr. Campbell had to come in and testify. He said he thought
Mr. Campbell understood the concerns the committee had raised.
He asked if the family contemplated any form of civil liability.
MR. CAMPBELL said they did go to court not as a civil suit but
simply on his driving ticket. They asked that rather than he
being able to just pay the ticket they felt the court should have
him serve community service in the area of hospice care or
something like that. Given the special circumstances the court
did that and the young man did not argue.
He was a young man also, 19 years old, and they did not want to
plague his life trying to pursue some sort of payment for their
loss. But Mr. Campbell felt in this type of situation the loss
of license for a year would have been excellent and could have
saved two other lives and possibly cause some growing up.
MR. ALBERT TAYLOR said his son was killed by the driver of a
motor vehicle. That driver chose to operate his vehicle in a
careless, irresponsible and unsafe manner. He felt strongly that
a person operating a vehicle carelessly, breaking traffic laws
and killing others should have their privileges to drive revoked.
He urged the committee to pass HB 40. It would help make our
roads safer.
CHAIRMAN TAYLOR said he was sorry for his loss and thanked him
for testifying.
MS. MARY MARSHBURN, Director, Division of Motor Vehicles (DMV),
said Ms. Carpeneti adequately covered the history or reasons
behind the bill as well as the specifications of the bill itself
and what it intends to do. She addressed two items.
· The fiscal note reflects there are a very small number of
these incidences each year. Obviously very painful for
the people who loose family members in these crashes.
· In answer to Senator Donley's question about driving
without a license. Driving without a license carries an
additional ten days in jail and a minimum of 90 days
additional revocation, which does not run concurrent to
any existing revocation.
SENATOR DONLEY said he did not think there was any mandatory jail
time for a first time conviction while license is suspended.
MS. MARSHBURN said she would be happy to look it up but that
information came from DMV staff.
CHAIRMAN TAYLOR said the committee would look into that also. He
said there may be some misunderstanding about how the law is
either applied or how it is currently written.
TAPE 02-05, SIDE B
SENATOR DONLEY asked Ms. Carpeneti if it a mandatory one-year
suspension no matter what the nature of the traffic violation was
if there is clear and convincing evidence that the elements are
here.
MS. CARPENETI said that was correct but they have to have a
conviction and then clear and convincing evidence that the
traffic violation was a significant contributing factor.
SENATOR DONLEY said this could be an improper lane change or a
failure to signal and there is no discretion on the part of the
judiciary. He said in the eight years he had been in the
legislature they had tried a lot of mandatory sentencing
proposals. He thought the executive branch had opposed every
mandatory sentence. The executive branch wanted to go in the
opposite direction and have less mandatory sentencing.
MS. CARPENETI said this was a license revocation not a result of
a conviction of a crime. It is a license action and the purpose
is to make our roads safer. It is not necessarily completely to
get this particular person off the road but to make our roads
safer.
SENATOR COWDERY asked in her mind what would happen if in fact
the one-year revocation was imposed but during that year period
he was caught driving again.
MS. CARPENETI answered he could be charged with driving with a
license suspended. If he was driving and he had a limited
license that would be another issue. It depended on the
circumstances. This revocation would be concurrent with any
other revocation in law.
SENATOR DONLEY said he noticed the CS bill had been referred to
the Rules Committee. He asked if that was accurate. It was
originally a Rules Committee bill and he didn't understand why it
said it was referred to the Rules Committee. He had some
question about the fiscal note and wanted to know if it was
coming to the Finance Committee and he could not tell that from
the bill document. He thought there was something inaccurate
about the referral section. It did not say judiciary but they
were there hearing it.
CHAIRMAN TAYLOR said the referrals are judiciary and then
finance. That was on the referral sheet that came with it.
He said he would entertain a motion. No motion was made.
SENATOR ELLIS asked for an at ease.
TAPE 02-06, SIDE A
[Recorded from the net]
CHAIRMAN TAYLOR called an at ease.
CHAIRMAN TAYLOR reconvened the meeting and announced he would
hold the bill for a week to try to resolve some of the concerns.
He stated it was his intention to move the bill from committee.
SCR 25-FISH & WILDLIFE PUBLIC TRUST/ANILCA SUIT
CHAIRMAN TAYLOR, prime sponsor SCR 25, said it was a resolution
relating to public trust doctrine as it concerns the allocation
of fish and wildlife resources in the State of Alaska. He
prepared a work draft which was before them entitled Utermohle
2/18/02 J. In comparing the work draft and the original document
most of the changes are more stylistic to improve the wording of
the document as opposed to major substance changes.
SENATOR COWDERY moved to adopt the CSSCR 25 (JUD) J version as
the working document.
CHAIRMAN TAYLOR said there being no objection the document before
the committee is now CSSCR 25. He believed it had been
distributed to each of the committee members.
MR. DALE BONDURANT, Alaska Constitutional Legal Defense
Conservation Fund Incorporated, said we as individuals and united
public interest litigants unanimously support SCR 25. The Alaska
Constitutional Legal Defense Conservation Fund Incorporated's
purpose is to protect the rights of equal access to Alaska's
common property, fish, wildlife and water held in public trust
for all citizens. These equal access rights are in jeopardy by
those who seek discriminatory preference by a prescribed group
based on where they live. Both the Alaska and U.S. Constitutions
are explicit in their doctrines of equal protection under the
law. He said they must be definite in their struggle to protect
that right of equal access for all personal consumptive users as
in hunting and fishing of Alaska's common property fish and
wildlife resources as managed under the constitutional
responsibility within the sustained yield management.
MR. BONDURANT said the public trust doctrine recognizes that our
sovereign nation has a judiciary responsibility for our elective
legislative and administrative government acting as trustees of
the public trust for fish, wildlife and waters within Alaska and
acting in respect for beneficiaries for all people as a whole.
This beneficiary must demand that these trusts be managed for the
present and future generations. The king and a dictatorial
monarch had absolute sovereign power over the people and could
abrogate the common law intent of protecting the people's rights
of life, liberty and property as within a free society. Our
forefathers wrestled this absolute sovereignty and returned the
sovereignty responsibility to the people themselves. Governor
Tony Knowles wants the people to vote away the fundamental equal
protection rights of equal access to our public fish, wildlife
and water renewable resources.
(Due to transmission difficulties, this portion of Mr.
Bondurant's testimony indiscernible)
He concluded that Congress is without power to omit the state's
cooperation in joint federal/state programs by legislation, which
authorizes a state to file under the equal protection clause. He
said he could sight several cases that way. He appreciated the
fact SCR 25 had been sponsored and they totally support the bill.
CHAIRMAN TAYLOR thanked Mr. Bondurant. He said Mr. Bondurant was
involved with Mr. Olson and others in litigation currently
pending before the Federal District Court in Anchorage and there
was a recent decision on that. He asked if that decision in any
talked to or discussed the public trust doctrine as described.
MR. BONDURANT answered yes. He explained that Judge Helms' court
mentioned that their claim had been as a public trust claim.
Judge Helms further said they have the right to pursue the equal
protection clause of the U.S. Constitution and file against as
applied by the Alaska National Interest Lands Conservation Act
(ANILCA) Title 8. But Judge Helms said that public trust is a
state right and as such they cannot show that they have the
ability or the right to take this up. He said they were
contesting several of Judge Helms' dismissals along with the
equal footing rights, the submerged lands act right and the
public trust right. They intend to further pursue this in the
other courts of the federal government.
JESSE VANDERZANDEN, Executive Director, Alaska Outdoor Council
(AOC), said AOC is comprised of about 50 member clubs, primarily
outdoor oriented. They also have individual memberships and when
added up they have about 10,000 collective members that are
hunters, fishermen, trappers and outdoor enthusiasts.
MR. VANDERZANDEN said the CS looked to have made just some minor
changes none of which shifted the intent or the principal of the
bill. They do support it and he thought Mr. Bondurant had said
it very well. They have been in communication with Mr. Bondurant
on this issue and also on his lawsuit. He said generally
speaking CSSCR 25 is a good expression of the legislature's
support for their states rights. Given what they have seen over
the past few years with regard to the increasing intervention of
the federal government into the management of fish and game the
timing is good, the intent is good and the principal is good.
In conclusion AOC wanted to thank Senator Taylor for sponsoring
the bill, for moving it through and for keeping an eye on this
issue. It is a good statement of the legislatures support for
trying to retain management of fish and game by the State of
Alaska.
AUSTIN AHMASUK, Nome resident, said he received the latest
working draft of SCR 25 about four minutes before his testimony.
He was not pleased that they had just received it.
He said he was an Inupiaq Eskimo born and raised in Nome, Alaska.
He is married and has four children. Hunting and fishing around
Nome is important to his culture and important in raising his
children. He wanted to testify in opposition to SCR 25, which
would destroy many aspects of subsistence livelihood. He lived
there himself and would likely nurture his children into
responsible and hard working adults.
MR. AHMASUK said challenging the actions of the United States
Congress in enacting Title 8 of ANILCA would do great harm to the
Alaska Native and rural people of the state in terms of
subsistence use. The Alaska Statehood Act and implementing laws
were subject to Aboriginal Title but were outright ignored until
the Alaska Native Claims Settlement Act (ANCSA). He said SCR 25
ignores and wishes to destroy subsistence use. Alaska Statute
16.05.258 clearly indicates that subsistence shall be afforded
for in times of plenty and certainly in times of shortage. It
appears that nothing in the Alaska Statehood Act impaired the
ability of Alaska Natives to compensation for extinguishment of
aboriginal claims, including subsistence use. ANCSA Section 12
(b) clearly indicates that native land selections where to take
into account historic uses and subsistence needs of Alaska
Natives and they are not subject to traditional review.
He said he strongly challenged the sponsor of the bill to prove
the action being sought will not harm a long standing legal
mandate that has been through many trials and tribulations for
the benefit of Alaska's first people and those that have learned
subsistence and live it hand and hand in remote and rural parts
of Alaska. Section 804 of ANILCA clearly indicates a mandate for
a rural subsistence priority. That legal mandate and
implementing laws should not be infringed upon in times of plenty
and most definitely in times of shortage. As legal history
clearly indicates Alaska Native people have been reliant on the
resources of the land and water. It is clear competing uses can
have devastating affects on animal and fish populations. Only by
limiting uses among users can animal and fish populations exist
for the benefit of future users and fulfill the immediate needs
of customary and traditional users of the resource. He thanked
Chairman Taylor for his time and consideration.
MR. DON JOHNSON, Soldotna resident, wanted to congratulate
Chairman Taylor for sponsoring SCR 25 and said it had been a long
time coming. He said they tried a lot of avenues to correct this
problem and he completely agreed with the intent behind SCR 25.
He said the real shame was the Governor of the great State of
Alaska dismissed the case they had before the federal government,
which put them in a position where they have to do something
else. He agreed the Alaska Constitution binds the Alaska
Legislature in that it must perform its duty as Alaska's trustee
to protect the citizens of this state who are the beneficiaries
of the public trust for fish and wildlife. He believed that
Title 8 of ANILCA attempts to usurp the authority of the
legislature in an attempt to manage Alaska's fish and wildlife in
a different way other than sustained yield. In his opinion that
way would end up destroying the fish and wildlife in the State of
Alaska within a matter of time.
He said the earlier statement of aboriginal claims was an
incorrect statement in that there was a two billion dollar payoff
for aboriginal claims not many years ago to take care of those
claims. Basically all the people who were sighting aboriginal
claims find often it is just maybe one percent of the natives of
the state. He did not believe that really applied at all to
this situation. He said Title 8 was particularly offensive to
him in that it reversed Alaska's majority use position and
reformed it into a federal minority use position. The majority
of residents resides outside the rural areas of Alaska and would
be totally excluded from participating in this subsistence
preference established by ANILCA. He said he did not believe
anybody in Alaska wanted that to happen, maybe the federal
government did but nobody around there did. He could not believe
anybody who really understands the intent behind ANILCA would
agree with that. He firmly believed the U.S. Government signed
off on the management issue when statehood went through. They
actually signed off giving Alaska the authority to manage its own
fish and wildlife. Once that statehood contract had been
established it was not a severable commodity to be rescindable on
and off with time according to whether or not the federal
government thinks they are behaving as far as a state goes.
MR. WARREN E. OLSON, Alaska Constitutional Legal Defense
Conservation Fund Incorporated, said he was a 45-year resident.
For 25 of those years he had been involved in opposing and or
trying to modify state law and federal law working within state
courts and federal courts towards the subject of discrimination
caused by Title 8 of ANILCA. He supports SCR 25 but did not have
a copy of the CS.
MR. OLSON said he has a very strong reason for supporting this
action and that is called finality. When Governor Knowles failed
to move forward on Katie John v. State of Alaska he abandoned
three quarters of the residents of Alaska and he avoided finality
on this question of Title 8 and ANILCA. The people who need
finality are the legislators, the administration, the Board of
Game, the Board of Fisheries, the advisory boards and most of all
the resources. He said he was absolutely convinced, as the
committee had received strong communications from him, the folks
that normally would be participating in the process of the
Fishery Board and Game Board and the advisory committees have
abandoned the process.
He had one suggestion for the bill on page 3. He suggested
strengthening this resolution on page 3, line 6 and 7 where he
would introduce or include and describe police powers of the
State of Alaska. He said the licensing, the seasons and bag
limits, responsibility, means and methods and protection are the
sole responsibility of the State of Alaska.
CHAIRMAN TAYLOR said the main thrust of this legislation is to
address the issue from a perspective that has not yet been taken
up. That is every citizen of Alaska wherever they live is a
beneficiary of the inherent public trust that is given to the
assets of the state that were conveyed to them at statehood and
every citizen is the beneficiary of those assets. So if the
asset is a caribou or a deer or a moose or a bear every citizen
in the state is the beneficiary of those fish and wildlife
assets.
For example when they in the state decide to sell a piece of
state land the public trust doctrine comes into play. You cannot
give that away. You cannot just hand it to someone and say here
is a big piece of Alaska. They are required to make certain the
public's interest in that land is protected. You would not sell
off all of your coastal waterways because no one would be able to
land a ship. There would be no public dock or wharf. You do not
give away or sell your entire resource base or the public would
have no opportunity to dig clams or to go get a crab when they
wanted one on the shore. They would have no opportunity to
harvest a deer or a bear for food supply or for the hide. All
these things would then be excluded.
CHAIRMAN TAYLOR said this public trust doctrine goes clear back
to before Magna Carta in England. The rights of the people to
access their resources had to be protected. He said
interestingly, throughout history every court has looked to the
legislative body to protect the public trust. The legislative
body in this instance, the House and Senate of the State of
Alaska, are trustees. They are not just sitting there as
representatives of the people to vote on various things they
actually have a fiduciary responsibility. Each of these animals
and fish has some value and the House and Senate are the
guardians of that public trust.
He gave the example of the Permanent Fund as a public trust. For
all intents and purposes, it is a trust they may use for state
purposes it is a trust to provide for the beneficiaries of the
trust, every man, woman and child of the State of Alaska. He
asked if they could imagine the outcry that would occur in the
State of Alaska and how fast they would find each of themselves
impeached if they attempted to say only people living in a rural
area would receive a permanent fund check. He said the roof
would come off that place and it should because they would not be
distributing the public trust asset in an equal fashion. They
would be discriminating in the way they distributed that public
trust asset. The very same thing is happening through this
federal law.
CHAIRMAN TAYLOR said if that law is not tested and challenged by
the legislature then they have abrogated their responsibilities
as trustees. He said the issue is not one of whether or not you
believe in subsistence or you believe in sustenance, which is the
utilization of these things for food that is not the question.
The question is are they as a legislature in violation of the
public trust doctrine that requires them to treat every citizen
in Alaska equally no matter what their race, color, creed,
national origin, religion and probably most importantly no matter
where they live and will they be treated as an Alaskan citizen
and an equal beneficiary. That is the reason SCR 25 is there.
He wanted to say that because Mr. Olson had worked so long on
that and had submitted so many different treatises to the
legislature on the public trust doctrine. It is a doctrine that
has not been tested in the courts yet.
CHAIRMAN TAYLOR asked Ted Popely how many years he had worked for
the House and Senate Majority.
MR. TED POPELY, Majority Legal Counsel, answered seven years.
CHAIRMAN TAYLOR asked if during that time a major percentage of
his time has been spent on issues revolving around state
sovereignty and Title 8 ANILCA.
MR. POPELY, answered yes.
CHAIRMAN TAYLOR asked if he could give the committee his
impression of the public trust doctrine and whether or not this
litigation, should it be brought by the Alaska Legislative
Council would lie and have jurisdiction.
MR. POPELY answered the public trust doctrine itself is certainly
a viable claim in a case like this revolving around the
allocation of state resources. It is a substantial doctrine
steeped in lots of history and case law around the country.
Chairman Taylor was right; it has not been litigated within this
context of subsistence and Title 8. So it is a viable claim.
He said the second part of his question as to whether or not a
claim would lie with the Legislative Council is a more difficult
question. It is a lot harder to answer. They obviously faced a
lot of difficulty in pursuing litigation as a legislative body as
opposed to the Department of Law because of the separation of
powers doctrine. He thought their chief concern in this case is
procedural rather than substantive. Substantive arguments can be
made, they are valid, they are strong arguments and the court
would certainly rule on those. They would hope that it would be
in their favor. He said "Procedurally, I think, the bigger
hurtle is getting the legislature as the party in question before
the court on this question."
CHAIRMAN TAYLOR asked if he had the chance yet to do research on
the issue of who represents the people under public trust
litigation.
MR. POPELY said he had done some work in that area. He said it
is general legislative bodies like Chairman Taylor had said, who
are referred to in the public trust analysis as protectors of the
resource and that makes sense. Logically it is the legislative
bodies who are the policy-making bodies of states. They are in
charge of course of passing laws that govern the use of the
resources. Public trust doctrine mandates that those decisions
be made in a fair and equitable and reasonable manner and is of
course what the public trust doctrine stands for.
CHAIRMAN TAYLOR said the legislature was generally the
appropriate body to bring the litigation. In fact there are
several cases where legislatures have been found to have
standing, which is the critical question. They had been
frustrated in the attempts of the past brought by the legislature
to join in suits or to maintain suits after the governor
dismissed them.
MR. POPELY said courts have analyzed the situation in Alaska with
the separation of powers that we have in our constitution and
have read that generally to mean the administration is the body
that brings litigation on behalf of the state. That is where
they have run into difficulty trying to litigate some of these
issues as a legislature or a subunit of the legislature through
legislative council.
CHAIRMAN TAYLOR said that was why he referred to those other list
of cases where state legislatures themselves have been found to
have standing even if the executive chose not to sue because of
the unique responsibility that the legislature has as trustee of
those public trust assets.
MR. POPELY said yes that has occurred. It certainly has.
SENATOR ELLIS said let us say this went forward and the
legislature were to pursue this. He asked Mr. Popely if he could
give him a dollar figure, high dollar of low dollar figure, for
this being pursued to finality.
MR. POPELY said he did not know if he could. That is a tough
question and he had not thought about it in terms of dollars
bringing a case like this. He said he supposed that the realm of
possibility is quite wide. It could be done in house in which
case there would be very little expenditure all the way through
hiring outside counsel which of course this legislature has done
in the past, which could prove to be quite expensive. That is
probably more of a policy question for their colleagues than for
him. He said he really did not know.
SENATOR ELLIS said he posed the same question to Chairman Taylor
as an attorney and as someone familiar with this and probably
envisions how he would like to see all this unfold with the best
and the brightest. He asked how many years and how much money.
CHAIRMAN TAYLOR said he did not think it would cost all that much
if in fact they kept it in house and joined in the litigation
already pending. The Alaska Constitutional Defense Fund case was
referred to by Mr. Bondurant and Mr. Olson is already pending.
It already survived several challenges through summary judgment
and all the state would have to do would be to interplead in that
as an additional plaintiff and advocate on the public trust
doctrine on behave of the people of Alaska. That was the aspect
of the case they were told they could not bring individually.
They are advocating on their own behalf at this point and so the
court has allowed them to move forward on the equal protection
argument. A major portion of that case from the time it was
filed was on the public trust doctrine itself and the court found
that they did not have standing to represent the people of the
State of Alaska. He thought tacitly what the court was saying
was the legislature itself is the true trustees and responsible
for the people on these issues. The case law they have seen
would indicate that the legislature itself can intervene on that
suit on behalf of all the people of Alaska and then have that
portion of that case litigated.
He said it would probably go to the Ninth Circuit Court and from
the Ninth Circuit on to the Supreme Court. They were probably
looking at period of time of at least five to six years but that
would be a quicker finality than anything he knew of right then.
With the dismissal of the Katie John case they lost their last
chance at some absolute finality from the Supreme Court on this
very contentious issue.
CHAIRMAN TAYLOR said if it is kept in house they are probably not
looking at anything more than the salaries of the people they are
currently hiring and paying to do some of the very same stuff.
At some juncture they may have to go beyond that.
SENATOR DONLEY moved SCR 25 the CS (JUD) as adopted the J version
from committee with individual recommendations.
SENATOR ELLIS objected.
CHAIRMAN TAYLOR called for a roll call vote.
The motion to move CSSCR 25 from committee carried with Senator
Donley, Senator Therriault, and Chairman Taylor voting "yea," and
Senator Ellis voting "nay."
The meeting was adjourned at 3:10 p.m.
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