Legislature(1999 - 2000)
03/26/1999 01:42 PM Senate JUD
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATE JUDICIARY COMMITTEE
March 26, 1999
1:42 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chairman
Senator Rick Halford, Vice-Chairman
Senator Dave Donley
Senator Johnny Ellis
MEMBERS ABSENT
Senator John Torgerson
COMMITTEE CALENDAR
SENATE BILL NO. 96
"An Act relating to access to criminal history records and to
revocation of or failure to renew certain licenses based on
criminal conduct or alleged criminal conduct; and providing for an
effective date."
-HEARD AND HELD
PREVIOUS SENATE COMMITTEE ACTION
SB 96 - See Judiciary Committee minutes dated 3-15-99, 3-17-99 and
3-24-99.
WITNESS REGISTER
Mr. Jerry Luckhaupt, Legislative Counsel
Legislative Legal and Research Services
130 Seward Street, suite 409
Juneau, AK 99801-2105
POSITION STATEMENT: Offered testimony on SB 96
Ms. Jane Demmert, Executive Director
Alaska Commission on Aging
PO Box 110209
Juneau, AK 99811-0209
POSITION STATEMENT: Commented on SB 96
ACTION NARRATIVE
TAPE 99-22, SIDE A
Number 001
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to
order at 1:42 and announced CSSB 96 would be the only order of
business.
CSSB 96-ACCESS TO CRIMINAL HISTORY RECORDS
CHAIRMAN TAYLOR explained SB 96 had been heard before and Senator
Torgerson had some concerns about the range of crimes that would be
covered by the bill.
Number 022
MR. JERRY LUCKHAUPT, Legislative Legal Counsel, came forward to
explain the changes contained in the work draft before the
committee. Section 1 has been changed to accommodate Senator
Torgerson's concerns about the crime of mooning, attempted mooning,
and solicitation and conspiracy to commit mooning. These crimes are
no longer covered in the definition of "serious crimes" used in the
bill, though the rest of the work draft is the same as the previous
committee substitute.
CHAIRMAN TAYLOR asked if the bill still includes charges that do
not involve actual convictions. MR. LUCKHAUPT replied he had only
changed the definition of serious offenses in the bill, in response
to Senator Torgerson's concerns. He explained some sections of the
bill still include both past or present charges, as well as
indictment or presentment of a crime, and in some cases a judgement
of not guilty by reason of insanity.
MR. LUCKHAUPT said the statutes the bill refers to are so muddled,
"I reached a point where I didn't know what to do . . . because the
statutes, specifically in A.S. 47.35 are totally contradictory to
each other." The statutes do not specify what convictions prohibit
a person from receiving a licence, and MR. LUCKHAUPT remarked, "I
just can't see right now, how the Department can actually grant
licences or revoke licences, because the statutes are so
contradictory . . . any action they take will violate one of the
statutes." He recommended the committee determine the intent of AS
47.35, and SENATOR HALFORD said, "Time for a 'repealed and
reenacted to read', or 'notwithstanding any other provision in
law'."
Number 157
MR. LUCKHAUPT said there are five different approaches in the
current statutes; he suggested the committee could select one and
he could draft the rest to be consistent with it.
SENATOR HALFORD suggested the committee look at the elements of
crimes they want covered. He stated he would like to see a person
allowed to get a licence if they successfully defend themselves
against a charge. He understands a temporary suspension for
consideration of a charge, but does not think a licence should not
be granted or should be revoked for a mere charge, indictment or
presentment of a crime. SENATOR HALFORD concluded the standard
should be the same for the issuance, renewal, and revocation of a
licence.
Number 180
CHAIRMAN TAYLOR said he feels a rewrite of the statute is
necessary. The Department has had to enact regulations on all these
statutes and they must also be conflicting and convoluted.
Additionally, the Department has had a policy shift toward placing
more children in foster homes and the result of this increased
workload can be deadly for kids being placed in inappropriate
homes. CHAIRMAN TAYLOR said these social workers are not evil or
malicious, but overwhelmed. He expressed appreciation to MR.
LUCKHAUPT for identifying these problems.
MR. LUCKHAUPT said two of these statutes were enacted only last
year and the rest of the statute has been amended within the past
three years. He said some of these bills had been "rushed through"
Legislative Legal and they have not been able to adequately review
the bills they have drafted.
CHAIRMAN TAYLOR asked MR. LUCKHAUPT how the committee should
proceed. He asked what kind of direction MR. LUCKHAUPT needs to
construct a consistent framework with which to shape these
statutes. He said the policy questions would be relatively easy to
make, the difficulty would be fleshing out the statutes and
correcting all the inconsistencies.
Number 237
MR. LUCKHAUPT said the most recent legislative statement suggests
charges should be included, and judgements of not guilty by reason
of insanity should equate to a conviction. Additionally, it does
not treat a Suspended Imposition of Sentence (SIS) as a conviction.
SENATOR HALFORD insisted that a SIS is, in fact, a conviction. MR.
LUCKHAUPT clarified for this purpose a conviction requires both a
judgement and a sentence and there could be a case made against a
SIS as a conviction. He said the state has won cases like this in
court, "but, you never know what is going to happen when those
cases go up higher through the court system."
MR. LUCKHAUPT asked the committee to cooperate with the Department
of Health and Social Services, look at the offenses listed in AS
47.35.047 and choose those they would like retain.
Number 272
SENATOR HALFORD said he agreed with everything MR. LUCKHAUPT had
said. He mentioned the right affected by this bill is the right to
take children into foster care for the state. This is not a
constitutional right and does not have to be protected in the same
manner, nor to the same degree. Generally, he would say a right or
a privilege should never be taken away without a conviction, but in
this case he wondered if sometimes charges should be considered
since certain charges are difficult to prove. A prosecutor may not
be able to reach the reasonable doubt conviction standard in cases
where something is clearly wrong. The Department should have some
discretion in this area.
CHAIRMAN TAYLOR agreed, saying this is a significant privilege. He
added that even known pedophiles are usually not convicted until
they have been charged several times, and sometimes they are only
convicted in a civil trial using the preponderance of the evidence
standard. He concluded, "There has to be a way to provide at least
some discretionary opportunity to the person granting the licence
to look at those things . . . " MR. LUCKHAUPT provided examples of
people who have not been convicted of crimes and yet are not fit
parents for children. He believes the current statute is broadly
worded for just that reason, and allows the Department some measure
of discretion.
Number 353
SENATOR ELLIS asked if the chairman wanted to untangle this issue
this legislative session. CHAIRMAN TAYLOR replied initially, he
wanted to give the Department some guidance in relation to
background checks. He said now he would like to refer SB 96 to a
subcommittee and, with the help of the Department, see if they
couldn't get it across the floor this session.
SENATOR ELLIS reminded everyone the bill deals with the care of
vulnerable adults as well as children. MR. LUCKHAUPT mentioned he
had only changed the bill as it related to an old reference to
crime, he had not made other changes. MR. LUCKHAUPT said he does
not usually draft legislation in this field. CHAIRMAN TAYLOR
confirmed, "We'd like you to stay with this one."
MR. LUCKHAUPT said it is an issue that is important enough to be
dealt with this session. He worries about what might happen if a
suit is brought against the state regarding the issuance,
revocation or failure to revoke a licence. He suggested the
Legislature and the Department choose the approach they would like
to take and put it on paper. CHAIRMAN TAYLOR replied his staff
would be available to MR. LUCKHAUPT anytime, and he invited other
members and their staff to work on the issue also.
MS. JANE DEMMERT, Executive Director of the Alaska Commission on
Aging, expressed concern about sections 5 and 6 of the bill. She
believes these sections will mandate that her agency review
background checks. Currently, grantees or sponsors, as a condition
of receiving a grant, are required to review the information
obtained through the background check and report it to the
Commission. MS. DEMMERT would prefer the grantees continue to do
the review.
Number 420
CHAIRMAN TAYLOR asked MR. LUCKHAUPT if he could incorporate this
change into the legislation and MR. LUCKHAUPT replied, "That's a
problem." He explained it is his understanding that national
records obtained for licencing or review can only be released to
the Department of Public Safety (DPS). MS. DEMMERT thought that
any check that returns no result can be routed through to the
Commission, and only those returning information need to be
directed to DPS. MR. LUCKHAUPT believed that approach might work,
and noted it does not violate section 5 or 6 of the bill. He said
this process is similar to what other agencies currently do, but
he emphasized if any type of record is returned, it must go
directly to DPS. CHAIRMAN TAYLOR asked MR. LUCKHAUPT to double
check on the acceptability of this process.
Number 476
CHAIRMAN TAYLOR commented that we now have a technologically
advanced Insta-check system for gun purchases, but no way to check
on people who want to house foster children in their home.
CHAIRMAN TAYLOR asked if there were other witnesses wishing to
testify on SB 96. Hearing none, and having no further business to
come before the committee, CHAIRMAN TAYLOR adjourned the meeting at
2:19 p.m.
| Document Name | Date/Time | Subjects |
|---|