Legislature(1999 - 2000)
02/05/1999 01:40 PM Senate JUD
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SENATE JUDICIARY COMMITTEE
February 5, 1999
1:40 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chairman
Senator Dave Donley
Senator John Torgerson
MEMBERS ABSENT
Senator Rick Halford, Vice-Chairman
Senator Johnny Ellis
COMMITTEE CALENDAR
SENATE BILL NO. 41
"An Act making corrective amendments to the Alaska Statutes
relating to certain repealed law as recommended by the revisor of
statutes; and providing for an effective date."
-HEARD AND HELD
PREVIOUS SENATE COMMITTEE ACTION
SB 41 - No previous action to report.
WITNESS REGISTER
Mr. James Crawford
Assistant Revisor
Legislative Legal and Research Services
130 Seward suite 409
Juneau, AK 99801
POSITION STATEMENT: Presented SB 41
ACTION NARRATIVE
TAPE 99-7, SIDE A
Number 001
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to
order at 1:42 p.m. and announced SB 41 would be the only order of
business.
SB 41-SUPPLEMENTAL REVISOR'S BILL
MR. JAMES CRAWFORD, Assistant Revisor of Statutes, explained that
the substantive sections of the bill are aimed at language in
existing statute that refers to obsolete statutes. MR. CRAWFORD
stated that the bill attempts to correct this problem in a manner
consistent with the Legislature's intent.
MR. CRAWFORD said the references in sections 1, 2, 4 and 5,
originated from chapter 45 and are all similar to one another.
Chapter 45 reflected a concern for vulnerable people receiving home
care services. MR. CRAWFORD observed that the legislative intent
behind chapter 45 was to increase general protection for these
people and, more specifically, to protect them from being robbed or
defrauded. The original bill derived from a case in which an
elderly person had been defrauded by a home care provider and lost
$500,000. The bill contained a criminal records check requirement
for home care providers who wished to receive state funding.
Number 052
SENATOR TORGERSON asked if it turned out that the perpetrator of
that crime had a criminal background. MR. CRAWFORD replied he did
not know about this case in particular, but had reviewed all the
minutes of meetings in which this original bill was discussed and
the minutes indicated that 30% of the records checks performed
turned up criminal records.
SENATOR TORGERSON asked for clarification of what type of
protection the bill tried to afford. MR. CRAWFORD said the
protection was for vulnerable people such as children, the elderly
and the disabled.
SENATOR TORGERSON asked when this bill was passed and MR. CRAWFORD
replied chapter 45 passed in 1994. SENATOR TORGERSON asked how the
bill has been interpreted in the meantime. MR. CRAWFORD stated that
the records that have been made available under this type of
request are the same type of records that were available under the
statute that was repealed.
MR. CRAWFORD said the correction in SB 41 will replace a reference
to "records" with a reference to "criminal justice information" to
make it consistent with current statute. The new reference will
provide all the same information available under the old reference,
and could possibly provide more information, consistent with the
intent of the 1994 Legislature to increase protection to vulnerable
people.
MR. CRAWFORD explained that Section 3 is slightly different from
the rest of the bill and deals with a reference to "sex crimes," a
narrower category than "records." MR. CRAWFORD said in order to
remain consistent with this narrower intent, the definition of "sex
crimes" was merely taken from the obsolete statute and inserted
into the new statute.
Number 152
SENATOR DONLEY asked if MR. CRAWFORD could provide a public policy
example of the difference between the two. MR. CRAWFORD said, in
suggesting a revisor's bill, he only looks at the original
legislative intent as it compares with the more recent legislative
intent. SENATOR DONLEY inquired as to the logic behind having one
section more narrowly limited than the other. MR. CRAWFORD replied
the logic is that a revisor's bill attempts to stick as closely as
possible to the legislative intent. He stated that public policy is
not made in a revisor's bill. In answer to SENATOR DONLEY'S
question, MR. CRAWFORD pointed out that the statute in section 3
already contains that other information, so adding it is not
necessary.
SENATOR DONLEY commented that he believes it is appropriate for a
revisor's bill to look for consistency and logic and insert it
where necessary.
Number 220
SENATOR TORGERSON asked about section 3, and particularly the
reference to an "attempted" violation of particular statutes. He
noted that one of the crimes defined under this section is
"attempted mooning." He asked if this was a valid basis to revoke
someone's licence. MR. CRAWFORD said the bill is worded that way
because that is the way it was worded in 1994 and he only took out
the old definition and replaced it with the new definition.
SENATOR TORGERSON asked if the result of the original bill is that
a person convicted of this crime will lose their day care or foster
care licence. MR. CRAWFORD responded that it is possible the
person's licence would be revoked or the issuing body would fail to
renew it.
SENATOR TORGERSON asked if it is customary to include the phrase
"or regulations adopted under this chapter." MR. CRAWFORD indicated
it is. SENATOR TORGERSON also asked about the wording "or laws of
another jurisdiction." MR. CRAWFORD replied this is a common
inclusion that allows previous crimes of a similar nature to be
counted against a person who commits another of the same type of
crime in a different jurisdiction. CHAIRMAN TAYLOR explained this
and gave the example of a person convicted of a DWI in Alaska who
is later convicted of a DWI in California. The California DWI would
be counted as a second offense because Alaska considers .10 the
standard for DWI and California uses .08 as its standard. The
Alaska offense exceeds the California standard and, therefore,
would be considered a prior offense.
Number 295
CHAIRMAN TAYLOR remarked he feels this bill reaches the edge of
what can be considered a revisor's bill because of the conflicting
legislation underlying SB 41. He indicated something this
significant might be better dealt with a clean up bill, rather than
this revisor's bill.
CHAIRMAN TAYLOR also expressed interest in knowing more about how
these records requests have been dealt with since 1994. MR.
CRAWFORD replied that he had learned these requests were being
dealt with in essentially the same manner they had previously been
dealt with, according to Ms. Diane Shenker of the Department of
Public Safety. He added that regulations also govern these records
requests.
CHAIRMAN TAYLOR expressed surprise that Ms. Shenker was "back doing
that again," as during an inquiry conducted on illegal use of the
Alaska Public Safety Information Network, Ms. Shenker "all of the
sudden either wasn't available or wasn't part of the scheme anymore
. . . "
CHAIRMAN TAYLOR said Ms. Shenker had testified that under the
existing language, these records requests would only access state
records and would not allow access into the federal National Crime
Information Center (NCIC) computer. CHAIRMAN TAYLOR suggested
stronger language would be needed to allow NCIC access and this
would be a substantive change that would not fit in a revisor's
bill. He asked if the objective of this bill might be better served
by a regular substantive bill. CHAIRMAN TAYLOR said he would
sponsor such a bill.
Number 375
MR. CRAWFORD replied that any correction in a revisor's bill is up
to the will of the Legislature. He did agree that a stronger
authorizing statute would be needed in order for these records
requests to access NCIC.
SENATOR TORGERSON declared a conflict-of-interest. He owns a
licenced foster care home. He moved and asked unanimous consent
that he be allowed to leave the committee at this time. Both
CHAIRMAN TAYLOR and SENATOR DONLEY objected.
Number 390
SENATOR TORGERSON asked if, under statute, a background check is
required every 10 years. MR. CRAWFORD indicated the answer probably
lies in regulation. SENATOR TORGERSON said he likes CHAIRMAN
TAYLOR'S idea of a new bill but would like the department to appear
before the committee and answer some questions. He commented that
he is not sure if "mooning" is something that needs to be included
in the original bill.
SENATOR DONLEY suggested that, under this statute, the crime of
"mooning" would carry a penalty more severe than perjury. SENATOR
TORGERSON interjected that "attempted mooning" would also carry the
same penalty.
SENATOR TORGERSON asked if a simple indictment would stand and
could cause someone to lose their licence. MR. CRAWFORD replied
that the indictment would have to come down from a grand jury and
be based on probable cause. SENATOR DONLEY wondered, "Did we really
pass this bill?"
SENATOR DONLEY expressed amazement that someone could be indicted,
found innocent, and still be banned for life from holding one of
these licences. MR. CRAWFORD replied that doing that is possible,
but not mandatory for the department. SENATOR DONLEY concluded,
"This really stinks."
Number 455
CHAIRMAN TAYLOR said it appears it doesn't even take an indictment
of attempted mooning, in fact it only takes a presentment of
attempted mooning to revoke a person's licence. He said this is a
problem and the committee will hold the bill and ask the department
to appear to answer some questions that have been raised. CHAIRMAN
TAYLOR asked MR. CRAWFORD to draft an amendment to the existing law
to clean it up in a manner consistent with federal law. He asked
MR. CRAWFORD to give some thought to "how far down the misdemeanor
ladder you want to go."
SENATOR TORGERSON suggested the committee also look at the
regulations associated with this statute.
SENATOR DONLEY remarked he was surprised that, under this law, a
person would not be innocent until proven guilty and, even after
proving innocence, would still be guilty. He concluded, "There is
something really wrong here."
CHAIRMAN TAYLOR adjourned the meeting at 2:17 p.m.
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