Legislature(2003 - 2004)
04/07/2003 01:31 PM Senate JUD
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ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
April 7, 2003
1:31 p.m.
MEMBERS PRESENT
Senator Ralph Seekins, Chair
Senator Gene Therriault
Senator Johnny Ellis
Senator Hollis French
MEMBERS ABSENT
Senator Scott Ogan, Vice Chair
COMMITTEE CALENDAR
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
date."
HEARD AND HELD
CS FOR HOUSE BILL NO. 23(JUD)
"An Act relating to court-ordered restitution and compensation
following a criminal conviction."
HEARD AND HELD
SENATE BILL NO. 49
"An Act making corrective amendments to the Alaska Statutes as
recommended by the revisor of statutes; and providing for an
effective date."
MOVED CSSB 49(STA) OUT OF COMMITTEE
PREVIOUS ACTION
SB 53 - See Transportation minutes dated 2/18/03.
HB 23 - No previous action to consider.
SB 49 - See State Affairs minutes dated 2/20/03 and Judiciary
minutes dated 3/17/03.
WITNESS REGISTER
Ms. Karen Sawyer
Staff to Senate Ogan
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Commented on SB 53 for the sponsor.
Ms. Anne Carpeneti
Criminal Division
Department of Law
PO Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Commented on SB 53 and HB 23.
Ms. Nancy Campbell
No address provided
POSITION STATEMENT: Supported SB 53
Representative Bruce Weyhrauch
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Sponsor of HB 23.
Mr. Riley Woodford, Former President
Alaska Folk Festival
Juneau AK
POSITION STATEMENT: Commented on HB 23.
Ms. Pam LaBolle, President
Alaska State Chamber of Commerce
217 2nd Street
Juneau AK 99801
POSITION STATEMENT: Supported HB 23.
ACTION NARRATIVE
TAPE 03-19, SIDE A
SB 53-REVOKE DRIVER'S LIC. FOR FATAL ACCIDENT
CHAIR RALPH SEEKINS called the Senate Judiciary Standing
Committee meeting to order at 1:31 p.m. Present were Senators
Therriault, French and Chair Seekins. Senator Ellis arrived
shortly thereafter. He announced SB 53 to be up for
consideration.
MS. KAREN SAWYER, Staff to Senator Ogan, sponsor of SB 53,
explained that this relates to circumstances where there is a
true link between violating a traffic law and contributing to
the death of someone. It allows courts to revoke an individual's
license to drive if they caused someone's death.
Page 2, lines 11 - 12 allows the court the discretion of
revoking the license for up to three years. Notwithstanding, SB
53 proposes that a person could get a limited license for the
entire period if he or she convinces the court that their
livelihood depends on having a license.
SENATOR ELLIS arrived at 1:35 p.m.
SENATOR THERRIAULT clarified that current law already revokes
the license of someone who is drinking and has a traffic
violation.
SENATOR FRENCH asked if this action would require a district
court trial.
MS. SAWYER replied that it would. She understood that whenever
there is a death of an individual, that person has the right to
a jury trial.
SENATOR FRENCH said that this has more to do with taking away a
driver's license, because as it stands now, you could kill
someone in an accident and you might only be cited for negligent
driving. You could sign the ticket, send in your fine, never
appear in court and not lose your license and that's what this
bill proposes to address.
SENATOR THERRIAULT asked why the current point system doesn't
allow this to be done.
MS. ANNE CARPENETI, Criminal Division, Department of Law, said
the infractions they are talking about wouldn't cost enough
points to justify a loss of license, unless it was negligent
driving on top of prior bad driving citations.
SENATOR THERRIAULT asked why they couldn't change the point
system.
MS. CARPENETI replied no thought has been given to revising the
point system. The purpose is to make a direct connection between
a traffic violation that kills someone and loss of a license by
a more direct route than the point system.
SENATOR SEEKINS asked if the more indirect route involving the
point system requires a jury trial.
MS. CARPENETI replied, "Yes, whenever there is a possibility of
loss of a valuable license like a driver's license, a person has
the right to a jury trial and court appointed counsel."
SENATOR FRENCH asked if that is correct, because you don't have
the right to a trial for a speeding ticket and speeding points
can cause you to loose your license.
SENATOR THERRIAULT asked if using "may" on page 2 reflected the
intent to see that a mother that picks up her children from
soccer and hits some black ice and accidentally kills one of
them loses her license in addition to the life of her child.
MS. SAWYER replied this bill gives the court the right to look
at the circumstance surrounding the accident. The person's
driving record and the violation would have significance.
MS. NANCY CAMPBELL said she and her husband lost their son in an
auto accident in 1994. He was hit head-on by a man that swerved
around a car that was turning. Six people were involved in the
accident and six lawyers represented the six different insurance
companies. One lawyer tried to get a misdemeanor and she and her
husband went to traffic court to testify, but state law tied the
judge's hands. Other people have talked to them about similar
experiences with the system's shortfalls. The driver got a slap
on the wrist and 300 hours of community service; he didn't lose
his license and was subsequently involved in another accident in
which two more people were killed. "As far as I know, he is
still driving at this point."
SENATOR FRENCH said he would like to have a discussion regarding
adding "serious physical injury" to the statute.
CHAIR SEEKINS said okay and that they would hold another hearing
on it.
HB 23-RESTITUTION FOR CRIME VICTIMS
CHAIR SEEKINS announced HB 23 to be up for consideration.
REPRESENTATIVE BRUCE WEYHRAUCH, sponsor of HB 23, said he
introduced the legislation to overturn a Court of Appeals
decision. He explained that the treasurer of the Alaska Folk
Festival embezzled money from the non-profit corporation. When
the new treasurer went to the police, they told him they did not
have the resources to investigate. The Folk Festival spent
hundreds of hours and dollars to follow the paper trail for the
police, who then submitted it to the district attorney. The
treasurer was convicted of theft and during sentencing the judge
said he would have to pay back the time and effort expended by
the volunteers. On appeal, the Court of Appeals indicated that
the Legislature did not intend the restitution statutes to be
read broadly enough to compensate volunteers of non-profits for
their time, money and effort in uncovering a crime. They
appealed to the Alaska Supreme Court and the divided court
wanted to hear the appeal. Part of the ruling by the dissenting
judges indicated that many other citizens and organizations will
be affected by this ruling. The District Attorney indicated that
they wanted legislation to address this appeal's court decision.
HB 23 would allow a non-profit to come to a court as the victim
and specify the value of the time and effort incurred so the
court could direct the defendant to reimburse the victim. The
bold-faced language in the amended version of the bill makes it
clear that the non-profit is the victim, not the individual
volunteers that did the service. This language was developed by
the Department of Law, the Public Defender's Office and the
court system.
If the volunteer presents a reasonable bill to the
non-profit for reimbursement, that can go in turn to
the sentencing judge, so that the sentencing judge has
a rational basis for providing the compensation to the
non-profit to make its compensation decisions later
on.
SENATOR FRENCH asked if volunteer labor and services are
generally a subject of restitution in law.
REPRESENTATIVE WEYHRAUCH replied that wasn't intended in this
bill. "This bill was meant to be narrow to address the specific
facts of the Demers case where you have a non-profit that is the
victim..."
SENATOR THERRIAULT asked if he is limited to damages or loss
(page 2, line11) as an individual if he expends hours of time to
provide information to the court.
REPRESENTATIVE WEYHRAUCH replied that would be the case, if he
were a victim of a crime. "There is no intent to change that at
all."
SENATOR FRENCH said that judges are often reluctant to grant
restitution for the hours anyone spends taking their car to the
body shop and picking it up or lost wages, for instance. "They
usually want to see a receipt."
1:55 p.m.
MR. RILEY WOODFORD, former president of the Alaska Folk
Festival, reiterated the story. The police made it clear that
their focus was violent crime and public protection. White-
collar crime tends to be a fairly low priority. So, in
situations like this, it falls upon the board of the non-profit
to do most of the investigative work, which takes away from the
mission and the reason the people volunteered. In the end, they
tallied up the amount of time they spent and picked what they
thought was fair compensation to the festival, not to the
individuals to help make right some of the impact of the crime.
He thought this was a fair bill that would help compensate non-
profits that are victimized by this same kind of white-collar
crime.
SENATOR THERRIAULT asked if the group hired an accountant to
quantify the amount of the embezzlement and was that a
compensatable expense or would that come under loss.
CHAIR SEEKINS responded that, if his company's accounting
department quantified an amount of embezzlement, more than
likely he wouldn't be able to recover that internal time, but if
he hired an accounting firm to do it, that would be a direct
expense related to the crime and he would be able to claim that.
He asked Senator French's opinion.
SENATOR FRENCH said this was a fuzzy area. In a $100,000 bank
embezzlement that he was familiar with, he doubted that the
person would be charged with all the investigative costs. He
asked if the festival was receiving any money from the Mr.
Demers.
MR. WOODFORD replied they were receiving money and it would
probably be paid back over a five-year period. He added that
Judge Collins said she would have included the costs if the
statute were more clear-cut.
Non-profits are in a little different situation than a business
in that they are completely volunteer and there is a tremendous
amount of trust and cooperation involved in the board members
who sometimes handle quite a bit of money. Most of the time the
checks and balances are very easy to subvert.
SENATOR FRENCH said they could change a few words on page 2 and
treat everyone the same. You could say, "including compensation
to a victim for the value of labor and goods if the labor and
goods were necessary to alleviate or mitigate the effects of the
crime."
REPRESENTATIVE WEYHRAUCH said he originally wanted this bill to
be broad, but the court has the ability under (2) to address the
financial burden placed on the victim and those who provide
services to the victim and other persons...
The reason this language was put in specific to a non-profit was
to address this particular issue and, two, without it, it loses
a broader base of support from the administration and creates
all kinds of legal issues.
It is intended to allow the individuals that Senator
Therriault is talking about to already be compensated
under this provision of the statute. This just
reverses the Court of Appeals to make sure that a non-
profit that has volunteer effort and expenses expended
can recover, which right now is prohibited under our
case law.
SENATOR FRENCH asked if anyone suggested that it would be
illegal or unconstitutional to have volunteer labor repaid
through a restitution award.
REPRESENTATIVE WEYHRAUCH replied no, because the intent is to
make sure that a court can order it if it can be substantiated
by a preponderance of evidence.
MS. PAM LABOLLE, President, Alaska State Chamber of Commerce,
said they recently suffered embezzlement and didn't have the
ability to determine the extent of their loss through volunteer
efforts. They hired an accountant, which will cost an additional
$10,000. The chamber sees the value of this legislation for non-
profits, because they know what the expense is.
CHAIR SEEKINS said that a lot of non-profits are too small to
have many checks and balances and he can see why they want to
have volunteer time counted. It has intrinsic value and the
court should be able to make a value determination in terms of
restitution. The question now is do they want to bring a not-
for-profit organization under the same bill.
MS. ANNE CARPENETI, Department of Law, said she wasn't as
familiar with the bill as she would like to be, but restitution
is hard for judges, prosecutors and defense lawyers. Limiting it
to non-profits was a beginning point.
SENATOR THERRIAULT wanted to know if this bill gives non-profits
something that private individuals and businesses don't
currently enjoy.
MS. CARPENETI replied she thought they were and asked the
sponsor.
REPRESENTATIVE WEYHRAUCH responded that wasn't what he said.
CHAIR SEEKINS said that would need to be clarified.
SENATOR THERRIAULT said that perhaps the policy call is whether
the benefit society gets out of non-profits matches that special
treatment.
TAPE 03-19, SIDE B
CHAIR SEEKINS closed testimony and said he would hold the bill
for further work.
CHAIR SEEKINS announced that the sponsor of SB 59 asked to hold
the bill.
SB 49-2003 REVISOR'S BILL
CHAIR SEEKINS announced SB 49 to be up for consideration.
SENATOR ELLIS moved to pass SB 49 from committee with individual
recommendations. There was no objection and it was so ordered.
CHAIR SEEKINS adjourned the meeting at 2:24 p.m.
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