Legislature(2003 - 2004)

04/09/2003 01:30 PM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                    ALASKA STATE LEGISLATURE                                                                                  
              SENATE JUDICIARY STANDING COMMITTEE                                                                             
                         April 9, 2003                                                                                          
                           1:30 p.m.                                                                                            
MEMBERS PRESENT                                                                                                               
Senator Ralph Seekins, Chair                                                                                                    
Senator Scott Ogan, Vice Chair                                                                                                  
Senator Gene Therriault                                                                                                         
Senator Johnny Ellis                                                                                                            
Senator Hollis French                                                                                                           
MEMBERS ABSENT                                                                                                                
All members present                                                                                                             
COMMITTEE CALENDAR                                                                                                            
SENATE BILL NO. 97                                                                                                              
"An Act  relating to  public interest  litigants and  to attorney                                                               
fees; and amending Rule 82, Alaska Rules of Civil Procedure."                                                                   
     SCHEDULED BUT NOT HEARD                                                                                                    
SENATE BILL NO. 59 BILL NO. 59                                                                                                  
"An  Act  relating  to permanent  fund  dividend  program  notice                                                               
requirements  and   to  the  ineligibility  for   permanent  fund                                                               
dividends of  certain persons sentenced  for driving  while under                                                               
the influence  of an alcoholic beverage,  inhalant, or controlled                                                               
substance, or for refusal to submit to a chemical test."                                                                        
     MOVED CSSB 59(JUD) OUT OF COMMITTEE                                                                                        
SENATE BILL NO. 53                                                                                                              
"An Act  relating to disposition  of a traffic  offense involving                                                               
the death  of a person;  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                                                               
     MOVED SB 53 OUT OF COMMITTEE                                                                                               
CS FOR HOUSE BILL NO. 23(JUD)                                                                                                   
"An Act relating to court-ordered restitution and compensation                                                                  
following a criminal conviction."                                                                                               
     MOVED CSHB 23(JUD) OUT OF COMMITTEE                                                                                        
SENATE BILL NO. 24                                                                                                              
"An Act providing special absentee ballots for voters in remote                                                                 
     HEARD AND HELD                                                                                                             
CS FOR HOUSE BILL NO. 46(STA)                                                                                                   
"An Act relating to printing of ballot titles and propositions                                                                  
on primary election ballots."                                                                                                   
     HEARD AND HELD                                                                                                             
PREVIOUS ACTION                                                                                                               
SB 59 - See Judiciary minutes dated 2/19/03 and 4/2/03.                                                                         
SB 53 - See Transportation minutes dated 2/18/03 and Judiciary                                                                  
     minutes dated 4/7/03.                                                                                                      
HB 23 - See Judiciary minutes dated 4/7/03.                                                                                     
SB 24 - See State Affairs minutes dated 3/18/03.                                                                                
HB 46 - See State Affairs minutes dated 3/18/03.                                                                                
WITNESS REGISTER                                                                                                              
Ms. Crystal Moore                                                                                                               
Staff to Senator Cowdery                                                                                                        
Alaska State Capitol                                                                                                            
Juneau, AK  99801-1182                                                                                                          
POSITION STATEMENT: Commented on SB 59.                                                                                       
Ms. Tam Cook                                                                                                                    
Legislative Legal and Research Services Division                                                                                
Legislative Affairs Agency                                                                                                      
Alaska State Capitol                                                                                                            
Juneau, AK  99801-1182                                                                                                          
POSITION STATEMENT: Commented on SB 59.                                                                                       
Ms. Linda Sylvester                                                                                                             
Staff to Representative Weyhrauch                                                                                               
Alaska State Capitol                                                                                                            
Juneau, AK  99801-1182                                                                                                          
POSITION STATEMENT:  Commented on HB 23 for the sponsor.                                                                      
Senator Lincoln                                                                                                                 
Alaska State Capitol                                                                                                            
Juneau, AK  99801-1182                                                                                                          
POSITION STATEMENT:  Sponsor of SB 24.                                                                                        
Ms. Sarah Boraio                                                                                                                
Staff to Senator Lincoln                                                                                                        
Alaska State Capitol                                                                                                            
Juneau, AK  99801-1182                                                                                                          
POSITION STATEMENT:  Commented on SB 24 for the sponsor.                                                                      
Ms. Virginia Breeze, Legislative Liaison                                                                                        
Division of Elections                                                                                                           
Office of the Lieutenant Governor                                                                                               
PO Box 110017                                                                                                                   
Juneau AK 99811-0017                                                                                                            
POSITION STATEMENT: Supported SB 24 and commented on HB 46.                                                                   
ACTION NARRATIVE                                                                                                              
TAPE 03-20, SIDE A                                                                                                            
CHAIR  RALPH   SEEKINS  called  the  Senate   Judiciary  Standing                                                             
Committee meeting  to order  at 1:30  p.m. Present  were Senators                                                               
Ellis,  French and  Chair Seekins.  He announced  that SB  97 was                                                               
being held for more work.                                                                                                       
          SB  59-PERMANENT FUND INELIGIBILITY FOR DUI                                                                       
CHAIR  SEEKINS  announced  SB  59,  version  \H,  to  be  up  for                                                               
MS.  CRYSTAL  MOORE,  staff  to Senator  Cowdery,  said  she  had                                                               
nothing to add and would answer questions.                                                                                      
SENATOR OGAN  arrived and asked if  language on page 3,  line 21,                                                               
means the bill is retroactive.                                                                                                  
CHAIR  SEEKINS  replied  that  it is  not  retroactive  from  the                                                               
effective date;  but further on,  if a  person is convicted  of a                                                               
second offense  within the  previous four  years, it  would count                                                               
MS. TAM COOK, Legislative Legal  and Research Division, said that                                                               
was correct.                                                                                                                    
SENATOR  THERRIAULT  moved to  pass  SB  59, [version  \H],  from                                                               
committee  with individual  recommendations  and attached  fiscal                                                               
notes. There was no objection and it was so ordered.                                                                            
         SB  53-REVOKE DRIVER'S LIC. FOR FATAL ACCIDENT                                                                     
CHAIR  SEEKINS  announced  SB  53,   version  A,  to  be  up  for                                                               
SENATOR FRENCH asked Senator Ogan,  sponsor, whether he wanted to                                                               
add "serious physical  injury" since that is  frequently a result                                                               
of an  automobile accident of  the sort this bill  envisions. The                                                               
drawback is  that the bill  would be less clear-cut,  because you                                                               
could argue about how serious  a physical injury really is versus                                                               
someone suffering a fatality.                                                                                                   
SENATOR  OGAN responded  that he  had seriously  considered that,                                                               
but since this  bill has taken eight years so  far, he would like                                                               
to work on that as a separate issue.                                                                                            
SENATOR  OGAN moved  to pass  SB 53,  version \A,  from committee                                                               
with individual recommendations. There were  no objections and it                                                               
was so ordered.                                                                                                                 
              HB  23-RESTITUTION FOR CRIME VICTIMS                                                                          
CHAIR SEEKINS  announced CSHB 23(JUD),  version \U, to be  up for                                                               
SENATOR THERRIAULT said  with regard to the  concern he expressed                                                               
at a previous  meeting, he understands the  rationale between the                                                               
two groups and is willing to go forward.                                                                                        
CHAIR  SEEKINS said  he understands  that this  would allow  non-                                                               
profits to  be able  to collect for  volunteer labor.  For profit                                                               
corporations  are able  to seek  recovery for  labor required  to                                                               
clean up after a crime, but  a private individual would still not                                                               
be able  to collect for  time volunteers might spend  cleaning up                                                               
after a crime.                                                                                                                  
MS.  LINDA SYLVESTER,  staff to  Representative Bruce  Weyhrauch,                                                               
said she would answer questions.                                                                                                
SENATOR  OGAN  asked what  they  were  trying  to fix  with  this                                                               
MS. SYLVESTER  replied that the  bill was written in  response to                                                               
an incident  that happened in  Juneau with the Alaska  State Folk                                                               
Festival  when  the  treasurer  embezzled  funds.  The  case  was                                                               
prosecuted and the  festival board and six  volunteers spent over                                                               
200 hours  providing evidence for  the police  department. During                                                               
the  restitution  hearing the  court  determined  that state  law                                                               
didn't clearly  envision that  the efforts  of a  volunteer board                                                               
could be included in the restitution.                                                                                           
SENATOR OGAN asked if the  non-profit had recourse for damages in                                                               
civil court.                                                                                                                    
MS. SYLVESTER  replied that they  would have, but  restitution is                                                               
in a criminal proceeding and is  an avenue that is available to a                                                               
victim  so that  they  can  be made  whole  in  an expedited  way                                                               
without going to civil court.                                                                                                   
CHAIR  SEEKINS  said  it  clarifies that  these  are  not  actual                                                               
damages  that  have been  paid  to  someone to  perform  auditing                                                               
services to determine the amount  of the embezzlement, but rather                                                               
actual hours of time spent by volunteers.                                                                                       
SENATOR OGAN  said he is a  little troubled by the  direction the                                                               
bill is going. He is concerned  whether it is an appropriate role                                                               
to award  what would typically  be a  civil damage in  a criminal                                                               
SENATOR  FRENCH said  he  shares  that concern  and  he also  has                                                               
issues with how  a court would value the  services, especially in                                                               
the folk festival case where they didn't spend any money.                                                                       
     So the $5,000  they are getting is what  you might call                                                                    
     unjust enrichment.  I think on balance,  we should fall                                                                    
     on  the  side  of  the  non-profit.  And,  I  think  on                                                                    
     balance, courts will  be aware of where  you can fairly                                                                    
     assign  a dollar  value and  where they  can't. They'll                                                                    
     deny  a request  in  criminal court  still leaving  the                                                                    
     victim free  to run  straight over  to civil  court and                                                                    
     file a claim. I don't  think anyone should look at this                                                                    
     as a  free for all for  crime victims to get  paid back                                                                    
     because they never will be...                                                                                              
CHAIR SEEKINS agreed with Senator French.                                                                                       
SENATOR THERRIAULT said his concern  is that they are carving the                                                               
non-profits  out for  this  little extra  treatment  that is  not                                                               
available to  individual citizens. He then  acknowledged that you                                                               
have to recognize the good that non-profits provide in society.                                                                 
     They're  not  going  to  be  able  to  unfairly  enrich                                                                    
     themselves.  I  think  the  courts  will  step  in  and                                                                    
     prevent that from happening.  It doesn't guarantee them                                                                    
     to  be  made   whole,  because  a  lot   of  times  the                                                                    
     individuals that  perpetrate the crimes don't  have the                                                                    
MS. SYLVESTER  said this is okay  because the people in  the non-                                                               
profits are  not getting paid and  it's difficult for a  group to                                                               
come up with a monetary  award. Also, most often these situations                                                               
are dealing  with embezzlement and  the way our  criminal justice                                                               
system is  set up, they  are not  going to investigate  and spend                                                               
the  time   and  effort  reconstructing  books   that  have  been                                                               
completely destroyed or don't exist.  It's a similar situation to                                                               
asking a rape victim to go  out and hunt down the perpetrator and                                                               
pay  for the  testing and  then turn  the situation  over to  the                                                               
She said that  narrowing this down to  just non-profits corrected                                                               
an indeterminate  fiscal note to  a zero fiscal note.  That means                                                               
that public  defenders won't be involved  in defending individual                                                               
defendants from claims of many individuals.                                                                                     
SENATOR  OGAN said  he is  still concerned  that this  carved out                                                               
special treatment for a group of people.                                                                                        
SENATOR  THERRIAULT   made  a  motion   to  pass   CSHB  23(JUD),                                                               
version\U, from committee  with individual recommendations. There                                                               
was no objection and it was so ordered.                                                                                         
1:56 - 1:57 - at ease                                                                                                           
                SB  24-SPECIAL ABSENTEE BALLOTS                                                                             
CHAIR SEEKINS announced SB 24 to be up for consideration.                                                                       
SENATOR LINCOLN, sponsor  of SB 24, said she  had another meeting                                                               
to attend,  but her chief  of staff, Sarah Boraio,  was available                                                               
to answer  questions. She explained  that this was  introduced in                                                               
the last session  and made it through the system,  but didn't get                                                               
passed.  She hopes  it will  make it  through this  time so  that                                                               
people in remote areas will have the opportunity to vote.                                                                       
2:00 p.m.                                                                                                                     
MS.  SARAH BORAIO,  staff to  Senator  Lincoln, said  that SB  24                                                               
offers voters  living in  a remote area  the opportunity  to vote                                                               
using  the 60-day  special advance  absentee  ballot. In  current                                                               
statute, only voters living, working  or traveling outside of the                                                               
United  States are  eligible for  that  special advance  absentee                                                               
ballot. However,  distance, terrain  and natural  conditions have                                                               
prevented voters in  remote areas from reaching  a community with                                                               
a polling  place or from  receiving by-mail ballots.  The current                                                               
absentee  ballot  is  mailed  out  14-15  days  in  advance.  The                                                               
Division  of  Elections  supports   the  bill  and  they  already                                                               
distribute  the  60-day  ballots  to those  out  of  state.  This                                                               
legislation would not impose  any administrative difficulties and                                                               
there is a zero fiscal note.                                                                                                    
She  said there  were  some concerns  about  definitions and  she                                                               
wanted  to  clarify  that  Legislative Legal  said  the  way  the                                                               
Division  of  Elections  applies  their  current  regulations  in                                                               
determining  absentee voters  would  apply  in determining  those                                                               
eligible for  this special  advance absentee  ballot. One  of the                                                               
criteria the division uses to  identify absentee voters is if the                                                               
voter  resides in  a remote  area  in Alaska  or where  distance,                                                               
terrain  or other  natural conditions  deny the  voter reasonable                                                               
access  to  the  polling  place.  The  definition  of  remote  is                                                               
inherent in  the regulations and in  this bill; a remote  area is                                                               
one  where reasonable  access to  a  polling place  is denied  by                                                               
those criteria. A key phrase  is "reasonable access". Legislative                                                               
Legal found that in the past,  courts have interpreted that to be                                                               
a matter  of degree, which depends  on the specific facts  of the                                                               
case,  which   are  usually  determined   by  the   division  and                                                               
identified in their system.                                                                                                     
SENATOR  OGAN  said  he  could  see 60  days  for  someone  on  a                                                               
sailboat, but  it seemed long for  someone in state and  asked if                                                               
there was any  place in state where mail wasn't  delivered for 14                                                               
MS. BORAIO said  right now there is an absentee  ballot that goes                                                               
out  15  days  in  advance   and  there  is  the  60-day  ballot.                                                               
Establishing a 30-day ballot might add more overhead.                                                                           
MS. VIRGINIA BREEZE, Legislative  Liaison, Division of Elections,                                                               
agreed with  Ms. Boraio and  said that the division  supports the                                                               
bill.  They do  everything they  can  to make  it convenient  for                                                               
voters.  Those  in  remote  areas often  have  a  difficult  time                                                               
getting their ballots back in time.                                                                                             
SENATOR  OGAN asked  if she  had statistics  on how  many ballots                                                               
they get back after the deadline  and since they now mail ballots                                                               
14 days in advance,  what is the longest it takes  to get mail in                                                               
a remote location in Alaska.                                                                                                    
MS. BREEZE said she couldn't answer that.                                                                                       
SENATOR  THERRIAULT said  he  knows that  some  mail systems  are                                                               
notoriously slow, but he didn't know if 60 days was necessary.                                                                  
CHAIR  SEEKINS said  he knows  some  people that  live in  remote                                                               
areas and the election season  is difficult for them because they                                                               
have access only by air.  Some elections are scheduled when their                                                               
plane can't  be on floats and  can't be on wheels  either. Unless                                                               
there is  some undue  hardship on  the division,  he would  be as                                                               
lenient  as  he could  be  to  make  sure  that people  have  the                                                               
opportunity  to  participate  in  elections. He  didn't  want  to                                                               
create a special group, but he  also wouldn't want to do anything                                                               
that would preclude anyone from voting.                                                                                         
He  said that  they  would bring  the bill  back  up under  bills                                                               
already  heard   and  provide  anyone  the   opportunity  to  ask                                                               
questions of the sponsor in the meantime.                                                                                       
                HB  46-PRIMARY ELECTION BALLOTS                                                                             
CHAIR SEEKINS announced HB 46 to be up for consideration.                                                                       
REPRESENTATIVE MIKE HAWKER,  sponsor of HB 46,  explained that an                                                               
item  that was  at  issue during  his  door-to-door campaign  was                                                               
concern about the  changes that were made during  last session to                                                               
our  primary balloting  process. One  has to  choose a  political                                                               
party  ballot in  order to  vote  in that  primary election.  The                                                               
concern that  was expressed  most often was  that people  did not                                                               
want to choose a party ballot,  but there were initiatives on the                                                               
ballot that  people wanted to  vote on. They were  very concerned                                                               
that  they  were  being  cornered  into  having  to  capriciously                                                               
declare a  preference in order  to vote on  an issue. He  came up                                                               
with an issues-only ballot for Alaska's voters to choose.                                                                       
Another  element  this bill  responds  to  is  folks who  have  a                                                               
religious conviction and cannot  declare a party affiliation. One                                                               
thing this  bill does not  do is  prejudice any other  opinions a                                                               
legislator  might have  regarding  our balloting  process or  the                                                               
initiative  process.  The  bill  has  a  zero  fiscal  note.  The                                                               
American  Civil  Liberties  Union  and the  Republican  Party  of                                                               
Alaska both testified in favor of this bill.                                                                                    
2:15 p.m.                                                                                                                     
SENATOR  THERRIAULT asked  if he  explained  to his  constituents                                                               
that  requesting  a particular  party  ballot  is different  than                                                               
declaring affiliation with a party.                                                                                             
REPRESENTATIVE  HAWKER   replied  that  he  had   had  some  very                                                               
interesting  discussions  and  was   told  that  it  preserves  a                                                               
person's privacy  in not having  to make any expression  in order                                                               
to  participate  in  the  balloting   process.  He  felt  it  was                                                               
incumbent  upon them  to make  the balloting  process as  open as                                                               
possible to people of all beliefs.                                                                                              
SENATOR THERRIAULT asked  if he considered just  not allowing any                                                               
initiatives on a primary ballot.                                                                                                
REPRESENTATIVE HAWKER  replied that  he had considered  that, but                                                               
he found  a diversity of opinions  on that subject and  felt that                                                               
that would  create more  controversy and  would detract  from the                                                               
simple mission of his bill.                                                                                                     
SENATOR  OGAN said  he didn't  think they  needed another  ballot                                                               
printed, but initiatives  should be on a  general election ballot                                                               
     Supporting this bill does not  - it is not my intention                                                                    
     that  it in  any  way  - causes  you  to prejudice  any                                                                    
     opinions you  may hold on  that subject  in particular,                                                                    
     whether  we  do or  do  not  have referendum  measures,                                                                    
     ballot issues,  appearing on a primary  ballot. I would                                                                    
     personally  be very  receptive to  discussing with  you                                                                    
     that issue as a separate piece of legislation, sir.                                                                        
TAPE 03-20, SIDE B                                                                                                            
SENATOR THERRIAULT  asked about  an initiative  only ballot  in a                                                               
general election.                                                                                                               
REPRESENTATIVE HAWKER replied he  doesn't envision this as making                                                               
any changes to the general election balloting.                                                                                  
CHAIR SEEKINS asked if the Division of Elections had an opinion.                                                                
MS. BREEZE  said they had no  policy position on this  issue, but                                                               
they would be able to implement the bill's language.                                                                            
CHAIR  SEEKINS said  one  suggestion was  to  have an  additional                                                               
ballot in  the primary and another  to limit these issues  to the                                                               
general election. He asked which would be easier.                                                                               
MS. BREEZE replied that is a policy call.                                                                                       
CHAIR SEEKINS asked  if either one of them would  be cheaper than                                                               
the other.                                                                                                                      
MS. BREEZE replied  that she didn't know what the  costs would be                                                               
at this time.                                                                                                                   
SENATOR ELLIS told Representative  Hawker that he appreciated his                                                               
bringing up the issue and that  he heard the same concerns. There                                                               
were  a  lot  of  upset   people,  especially  in  the  religious                                                               
community. He  said that  this issue was  raised by  the minority                                                               
and  brushed  aside  during  debate   on  the  closed  Republican                                                               
REPRESENTATIVE  HAWKER appreciated  his observations,  but it  is                                                               
his true desire to have this  legislation stand on its own merits                                                               
and not  in light of any  other contentious issues that  may have                                                               
happened in previous sessions.                                                                                                  
SENATOR ELLIS said he  understands Representative Hawker's point,                                                               
but they can't divorce themselves  from history. Some of the same                                                               
members here were there then and:                                                                                               
     It's undeniable  that we  are here  at this  point with                                                                    
     your  bill because  of  what  happened previously  with                                                                    
     closing the  primary - beyond what  the court required,                                                                    
     in my opinion.  So here we are. I'm  just saying you've                                                                    
     got  to  convince people  who  didn't  care about  this                                                                    
     concern, the  religious folks and the  folks who didn't                                                                    
     want  to declare  - you've  got to  convince those  and                                                                    
     many of those same folks  are still here. They're going                                                                    
     to vote on  your bill, I hope, in  the affirmative, but                                                                    
     you've   got  to   change  their   minds  that   you're                                                                    
     representing  the  legitimate  interests...I  wish  you                                                                    
SENATOR THERRIAULT  asked Ms. Breeze  how many times in  the last                                                               
20 years initiatives have shown up on primary ballots.                                                                          
MS. BREEZE  replied hardly at all.  "This last one was  the first                                                               
time it's  happened since I've  been with the division,  which is                                                               
about seven years."                                                                                                             
SENATOR OGAN  said he thought  this was  bad policy and  asked if                                                               
the statutes were clear on what  election an issue can show up on                                                               
or do they specifically have to ban it.                                                                                         
MS.  BREEZE  responded that  it  is  a  matter  of timing.  If  a                                                               
petition is submitted  the day the Legislature  convenes, it will                                                               
appear on the  general election ballot. If it  appears at another                                                               
time, because of timing, it  could appear on the primary election                                                               
ballot  and that's  what  happened this  time.  Most people  that                                                               
submit  petitions  would  prefer  to have  them  on  the  general                                                               
election ballot  because voter  turn out  is larger.  That didn't                                                               
happen  with  this  particular  initiative.  She  said  that  the                                                               
division  was bombarded  with questions  from  people who  didn't                                                               
have the  chance to vote on  a separate ballot because  more than                                                               
half of the state's voters are not registered with a party.                                                                     
SENATOR THERRIAULT  asked what  the division's  official response                                                               
MS.  BREEZE replied  the  people  were told  they  would have  to                                                               
choose a ballot; that was the  law and the division was following                                                               
SENATOR THERRIAULT asked  if she clarified that  they didn't have                                                               
to vote for the party candidate.                                                                                                
MS. BREEZE said yes.                                                                                                            
SENATOR OGAN  said that  having to  select a  ballot is  an issue                                                               
that is  ripe for litigation, based  on having to be  a member of                                                               
the  party to  vote. He  understands Senator  Therriault's point,                                                               
but he  didn't think  the average  public is  that sophisticated.                                                               
People want to vote on issues  and he thought that there might be                                                               
a  little  of  denying  people's   perceived  right  to  vote  on                                                               
something, because  they have to pick  a party ballot to  vote on                                                               
an initiative that's on the primary.                                                                                            
MS. BREEZE said that it was  not appropriate for her to share her                                                               
thoughts  and  didn't want  her  answers  to be  misleading.  She                                                               
reiterated that they got a lot of phone calls and people asked                                                                  
if they had to vote a certain way.                                                                                              
SENATOR THERRIAULT said he didn't think there was a                                                                             
constitutional problem, because they didn't bar access to the                                                                   
ballot by having voters select a party.                                                                                         
CHAIR SEEKINS noted there were no further comments and said that                                                                
they would hold the bill.                                                                                                       
2:32 p.m. - 2:35 p.m. - at ease                                                                                                 
CHAIR SEEKINS adjourned the meeting at 2:35 p.m.                                                                                

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