04/18/2005 08:30 AM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| Confirmation Hearing: Board of Governors of the Alaska Bar: Mr. Joseph N. Faulhaber | |
| Confirmation Hearing: Board of Governors of the Alaska Bar: Ms. Terry L. Thurbon | |
| SB154 | |
| SB86 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| + | SB 134 | TELECONFERENCED | |
| + | SB 154 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| = | SB 86 | ||
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
April 18, 2005
8:36 a.m.
MEMBERS PRESENT
Senator Ralph Seekins, Chair
Senator Charlie Huggins, Vice Chair
Senator Gene Therriault
Senator Hollis French
Senator Gretchen Guess
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
CONFIRMATION HEARINGS:
Board of Governors of the Alaska Bar: Mr. Joseph N. Faulhaber
CONFIRMATION ADVANCED
Chief Administrative Law Judge: Ms. Terry L. Thurbon
CONFIRMATION ADVANCED
SENATE BILL NO. 154
"An Act relating to the jurisdiction for proceedings relating to
delinquent minors and to telephonic and televised participation
in those proceedings; amending Rules 2, 3, 4, 8, 12, 13, 14, 15,
16, 21, 22, 23, 24.1, and 25, Alaska Delinquency Rules; and
providing for an effective date."
MOVED CSSB 154(JUD) OUT OF COMMITTEE
SENATE BILL NO. 86
"An Act relating to the liability of the state and
municipalities for attorney fees in certain civil actions and
appeals; and providing for an effective date."
MOVED CSSB 86(CRA) OUT OF COMMITTEE
SENATE BILL NO. 134
"An Act relating to arrest; relating to investigation standards
for police officers conducting criminal investigations and
violations of those standards."
SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: SB 154
SHORT TITLE: JUVENILE DELINQUENCY PROCEEDINGS
SPONSOR(s): SENATOR(s) THERRIAULT
03/29/05 (S) READ THE FIRST TIME - REFERRALS
03/29/05 (S) STA, JUD
04/07/05 (S) STA AT 3:30 PM BELTZ 211
04/07/05 (S) Moved CSSB 154(STA) Out of Committee
04/07/05 (S) MINUTE(STA)
04/08/05 (S) STA RPT CS 2DP 1NR SAME TITLE
04/08/05 (S) DP: THERRIAULT, DAVIS
04/08/05 (S) NR: WAGONER
04/18/05 (S) JUD AT 8:30 AM BUTROVICH 205
BILL: SB 86
SHORT TITLE: STATE/MUNI LIABILITY FOR ATTORNEY FEES
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
01/31/05 (S) READ THE FIRST TIME - REFERRALS
01/31/05 (S) CRA, JUD
02/09/05 (S) CRA AT 1:30 PM BELTZ 211
02/09/05 (S) Heard & Held
02/09/05 (S) MINUTE(CRA)
04/04/05 (S) CRA AT 1:30 PM BELTZ 211
04/04/05 (S) Moved CSSB 86(CRA) Out of Committee
04/04/05 (S) MINUTE(CRA)
04/05/05 (S) CRA RPT CS 1DP 2DNP 2NR
04/05/05 (S) NR: STEVENS G, STEDMAN
04/05/05 (S) DP: WAGONER
04/05/05 (S) DNP: ELLIS, KOOKESH
04/15/05 (S) JUD AT 8:00 AM BUTROVICH 205
04/15/05 (S) Heard & Held
04/15/05 (S) MINUTE(JUD)
WITNESS REGISTER
Mr. Joseph N. Faulhaber
POSITION STATEMENT: Confirmation Candidate
Ms. Terry L. Thurbon
POSITION STATEMENT: Confirmation Candidate
Ms. Heather Brakes
Staff to Senator Therriault
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Introduced SB 154
Ms. Patty Ware, Director
Division of Juvenile Justice
Department of Corrections
PO Box 110635
Juneau, AK 99811
POSITION STATEMENT: Commented on SB 154
Mr. Tony Newman, Program Officer
Division of Juvenile Justice
Department of Corrections
431 N. Franklin, Suite 400
Juneau, AK 99801
POSITION STATEMENT: Commented on SB 154
Ms. Anne Carpeneti, Attorney
Department of Law
PO Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Commented on 154
Ms. Linda Wilson, Deputy Director
Alaska Public Defenders Agency
th
900 W. 5 Ave
Anchorage, AK 99501
POSITION STATEMENT: Testified in opposition to SB 154
Mr. Craig Tillery, Assistant Attorney General
Department of Law
PO Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Commented on SB 86
ACTION NARRATIVE
CHAIR RALPH SEEKINS called the Senate Judiciary Standing
Committee meeting to order at 8:36:32 AM. Present were Senators
Charlie Huggins, Gene Therriault and Chair Ralph Seekins.
^Confirmation Hearing: Board of Governors of the Alaska Bar: Mr.
Joseph N. Faulhaber
8:37:33 AM
CHAIR RALPH SEEKINS asked Mr. Faulhaber the reason he aspires to
be confirmed to the Board of Governors.
MR. JOSEPH FAULHABER said he had a desire to do something about
Alaska tort law, specifically Alaska Civil Rule 82. The English
system makes the prevailing party well - meaning; a victim of a
frivolous lawsuit would recoup 100 percent of reasonable costs,
which seems a reasonable conclusion. The operation of the Bar
system is also interesting. He said he would like to contribute
to running a balanced budget and to ensure it is cost effective.
8:40:23 AM
SENATOR CHARLIE HUGGINS moved to advance Mr. Joseph Faulhaber to
the Senate Floor for consideration. Hearing no objections, the
motion carried.
^Confirmation Hearing: Board of Governors of the Alaska Bar: Ms.
Terry L. Thurbon
8:41:34 AM
CHAIR RALPH SEEKINS asked Ms. Thurbon the reason she aspires to
be confirmed as Chief Administrative Law Judge.
MS. TERRY THURBON, acting chief administrative law judge, Office
of Administrative Hearings, explained she aspires to be the very
first chief administrative law judge while getting the program
off on the right foot. She has past experience developing
existing programs but would like the opportunity to start a
program off from the beginning and oversee the entire operation.
In addition to conducting hearings, the office is charged with
providing training and publishing decisions and other peripheral
functions. She said she finds it very interesting and very
challenging and would appreciate the opportunity to help make
the adjudication system in Alaska more consistent and efficient.
SENATOR GENE THERRIAULT asked Ms. Thurbon to apprise the
committee of the timeline for setting up the operation.
8:44:20 AM
MS. THURBON explained the Legislature created the Office of
Administrative Hearings July 2004. The contemplation was that on
July 1, 2005 the office would be up and running. The regulations
might not be in effect at that point so there is a 6-month
window of opportunity to get things rolling. As of January 1,
2005 several hearing officer positions and some support staff
positions transferred in. They have made good strides in getting
decision writing consistent and are getting prepared to start
publishing decisions and getting organized. The office is well
on its way to having the code of conduct regulations that apply
to all state hearing officers as well as the procedural
regulations that will apply to the hearings.
8:46:32 AM
CHAIR SEEKINS asked Ms. Thurbon the location of the office.
MS. THURBON explained Anchorage and Juneau both have offices.
CHAIR SEEKINS asked the strengths of having a central panel.
MS. THURBON said a central panel has the benefit of a peer
review, which contributes to more consistent and clearly written
decisions. A central panel will prove to be more flexible and
have more timely prosecution of cases. The biggest thing is
consistency in the way hearings are conducted with respect to
efficiency and fairness.
8:51:01 AM
Senator Hollis French joined the committee.
8:51:07 AM
MS. THURBON continued the office attempts to inform the public
at every opportunity that they are an independent agency. They
are trying to locate the Anchorage office away from the agencies
that could be part of a dispute. Juneau is separate already.
That change is improving the structure of the process.
8:53:17 AM
SENATOR THERRIAULT asked Ms. Thurbon whether she scrutinized and
critiqued all written decisions.
MS. THURBON advised she is currently looking at every decision
as part of her effort to making sure there is consistency in
substance as well as in the written presentation.
8:55:29 AM
Senator Gretchen Guess joined the committee.
SENATOR THERRIAULT asked the level of interaction the drafters
had with Ms. Thurbon's office regarding SB 141.
MS. THURBON clarified there was no interaction at all. The
Office of Administrative Hearings is within the Department of
Administration simply because they have to have a home
somewhere. There are a number of things the Legislature put into
law when creating the office that were meant to ensure
decisional independence.
8:59:01 AM
MS. THURBON added she is required to copy the office budget
requests directly to the finance committees of both houses. SB
141 legislation makes the Office of Administrative Hearings the
final decision-maker on the appeals.
SENATOR THERRIAULT asked Ms. Thurbon whether she is receptive to
the idea of cross training.
9:01:05 AM
MS. THURBON voiced they have been working on cross training and
there has been no resistance.
9:02:43 AM
SENATOR THERRIAULT moved to advance Ms. Terry Thurbon to the
Senate Floor for consideration. Hearing no objections, the
motion carried.
Chair Seekins announced a brief recess at 9:03:18 AM.
Chair Seekins reconvened the meeting at 9:08:08 AM.
SB 154- JUVENILE DELINQUENCY PROCEEDINGS
9:08:34 AM
CHAIR RALPH SEEKINS announced SB 154 to be up for consideration.
Ms. HEATHER BRAKES, staff to Senator Therriault, introduced SB
154. SB 154 would improve the state's ability to hold juvenile
offenders accountable. It would also increase efficiency of the
juvenile justice system by allowing telephonic hearings in some
court proceedings. SB 154 addresses a loophole and places
jurisdiction for an adult discovered to have committed a crime
while under the age of 18.
9:11:22 AM
MS. PATTY WARE, director, Division of Juvenile Justice,
Department of Corrections (DOC), voiced support of SB 154. She
advised the committee of two cases in Kenai involving serious
charges relating to sexual abuse of a minor. The Alaska Superior
Court, in both cases, ruled there was no legal jurisdiction
either for the juvenile justice system or the criminal court
system. The first instance was of a 19 year old who committed a
sexual assault when he was 17.
9:13:05 AM
The second situation was of a 20 year old alleged to have
committed crimes when he was 15 and 17. The Alaska Superior
Court dismissed both cases due to lack of jurisdiction. She read
a quote from the Alaska Superior Court ruling on the second
case:
The court recognizes the state's concern that this
interpretation can allow juvenile criminal activity to
go unpunished if the crime did not come to light until
thth
after the juvenile's 18 or 19 birthday. This result
is not of the court's making. For whatever reason, the
Legislature has mandated that juvenile jurisdiction in
all cases comes to an end at the time of the
th
juvenile's 19 birthday unless the juvenile consents
to a longer period. The resolution of this problem
rests not with the court, but with the Legislature.
9:14:47 AM
SENATOR HOLLIS FRENCH asked whether either order was appealed.
MS. WARE admitted she was not sure. Section 1 of SB 154 adds a
new subsection to the delinquency statutes establishing legal
jurisdiction. Section 2 establishes applicability of the rest of
the delinquency laws to this particular class of minor, which
are persons over the age of 18 by the time they come before the
court.
9:17:10 AM
MR. TONY NEWMAN, program officer, Division of Juvenile Justice
demonstrated a visual presentation on a flip chart that related
to juvenile and adult offense jurisdictions. There are a couple
of instances where juvenile offenders are managed in the adult
system, such as murder and armed robbery. Another way a juvenile
can be forwarded into the adult criminal system is through AS
47.12.100 where the state must demonstrate the juvenile is not
amenable to treatment. Dual sentencing provisions apply to
serious offenses such as repeated felony crimes where the
district attorney can seek both a juvenile and adult sentence
for a minor.
9:20:35 AM
SB 154 addresses situations where crimes are not discovered
until after the person has turned 18 and will give the state the
opportunity for restitution.
9:24:03 AM
SENATOR FRENCH asked whether the first move would be to ask for
the discretionary waiver into adult court.
MR. NEWMAN said it would depend on the offense and the offender.
9:25:57 AM
SENATOR FRENCH asked whether subsequent hearings would be in
adult court.
MR. NEWMAN answered yes.
SENATOR FRENCH asked whether SB 154 would grant the state
jurisdiction of an adult in juvenile court.
9:27:34 AM
MR. NEWMAN responded yes.
9:28:51 AM
MS. WARE continued the second half of SB 154 allows the juvenile
justice system to use state resources. Section 9 proposes a
change to the delinquency rules. It specifies specific hearings
where a juvenile has a right to be physically present. It allows
for telephonic presence. Currently the DOC spends over $200,000
a year transporting young people to court.
9:32:13 AM
SENATOR FRENCH asked where the evidentiary hearing would fit
into the scheme.
MS. WARE said those types of issues happen fairly infrequently.
She emphasized they would not request a telephonic hearing for
serious issues.
9:34:57 AM
MS. ANNE CARPENETI, Department of Law (DOL), commented a motion
hearing is not specified in SB 154 as a proceeding where the
juvenile has to be present. Paragraph 3 of the rule provides
that appearance by television is not allowed under any
circumstances in a proceeding where sworn testimony is
presented. A motion hearing would be supported by testimonial
evidence. She said that might need to be added into Paragraph 1.
SENATOR FRENCH moved Amendment 1.
Page 7, line 6; after the word "television" add the words
"or telephone."
Hearing no objections, the motion carried.
9:36:52 AM
SENATOR GENE THERRIAULT asked Ms. Ware the number of cases SB
154 would apply.
MS. WARE answered she would get back to the committee with the
information.
9:38:56 AM
MS. LINDA WILSON, deputy director, Alaska Public Defender
Agency, testified she is quite familiar with this area of law
and offered to answer questions. She guessed there would be a
large number of cases that would fall under SB 154.
9:43:12 AM
MS. WILSON expressed concern over telephonic participation of a
juvenile. Juveniles often don't understand what is happening to
them. She said they need their attorney present and they have a
right to have them present during hearings because the hearings
are critical and address liberty. She disputed the zero fiscal
notes saying the cost will shift to another agency, such as
public defender travel costs. The attorney, the client, and the
judge being in the same room create a far greater impact.
9:45:12 AM
SENATOR THERRIAULT asked Ms. Wilson whether she would travel to
be next to her client, no matter how brief the hearing was
anticipated to be.
MS. WILSON responded not in every case. Allowing the juvenile
the right to waive presence at a hearing is appropriate.
Allowing the Department of Law the right to exclude the juvenile
is worrisome.
SENATOR FRENCH asked whether most contested hearings involve
sworn testimony.
MS. WILSON answered sometimes detention review hearings can be
contested but not necessarily evidentiary.
SENATOR THERRIAULT asked committee members to consider zeroing
out the indeterminate fiscal note. He asked Ms. Ware to comment.
9:48:18 AM
MS. WARE remarked the proposed changes are addressing the types
of hearings where a public defender would not travel.
CHAIR SEEKINS asked whether there existed an electronic method
where the juvenile and the attorney could communicate on a
secure line.
MS. WARE said due to the size and remoteness of Alaska, many
times the primary communication is telephonic.
SENATOR THERRIAULT offered the hearing could be recessed so the
juvenile and attorney could communicate through another phone
line.
9:50:39 AM
MS. WILSON advised there is often not another phone line. Many
times juveniles won't interrupt a proceeding to ask a question.
CHAIR SEEKINS asked whether the attorneys properly communicate
with the client to make sure they understand that they can ask
questions.
MS. WILSON stated sometimes they don't remember. She maintained
it is important for the attorney to be physically present in
order to initiate breaks to explain things and answer questions.
9:52:36 AM
SENATOR FRENCH asked Ms. Wilson the most substantive type
hearing where she felt SB 154 would prevent attendance by the
juvenile.
MS. WILSON divulged it would be the detention review hearings,
which is similar to a bail hearing.
MS. WARE agreed every court hearing is important. SB 154 is an
attempt to propose an option for the judge to consider the
cost/benefit analysis.
9:56:09 AM
MS. CARPENETI added the rule provides the judge is the entity
who decides whether the person needs to be there. The DOL and
the DOC are not excluding the child; they are asking the judge
to decide whether it is essential for the child to be physically
present.
SENATOR FRENCH articulated the closer the call, the more likely
the judge would make sure all parties are in the same room.
MS. WARE agreed.
9:57:31 AM
CHAIR SEEKINS closed public testimony.
SENATOR THERRIAULT moved the Senate Standing Judiciary Committee
draft a zero fiscal note for the office of public defender.
Hearing no objections, the motion carried.
SENATOR THERRIAULT moved CSSB 154(JUD) from committee with
individual recommendations and attached fiscal note(s). There
being no objection, the motion carried.
CHAIR SEEKINS announced a brief recess at 10:00:18 AM.
CHAIR SEEKINS reconvened the meeting at 10:20:41 AM.
SB 86-STATE/MUNI LIABILITY FOR ATTORNEY FEES
10:20:41 AM
CHAIR RALPH SEEKINS announced SB 86 to be up for consideration.
SENATOR HOLLIS FRENCH asked Mr. Craig Tillery to explain to the
Senate Standing Judiciary Committee the current law regarding
what happens when a public interest litigant loses their case.
MR. CRAIG TILLERY, assistant attorney general, Department of Law
(DOL), divulged when a public interest litigant loses a case
they are not required to pay the attorney fees of the prevailing
party.
SENATOR FRENCH asked whether SB 86 changes that.
MR. TILLERY answered SB 86 is not intended to impact or affect
the situation where a public interest litigant loses a lawsuit.
SENATOR FRENCH asserted those changes are in HB 145, which is
currently tied up in court.
MR. TILLERY agreed.
10:23:06 AM
SENATOR GENE THERRIAULT asked Mr. Tillery to comment on
necessity of the findings section.
MR. TILLERY informed the findings and intent section is in SB 86
to make it clear that the Legislature is enacting the bill as a
matter of sovereign immunity.
10:25:16 AM
SENATOR FRENCH asked Mr. Tillery whether SB 86 would embody a
court rule change.
MR. TILLERY answered no.
SENATOR FRENCH clarified HB 145 was found contrary by the one
court who has reviewed it.
MR. TILLERY said SB 86 responds to that by taking into account
the views of the Alaska Superior Court.
10:26:30 AM
CHAIR SEEKINS asked Mr. Tillery whether there was a sovereign
immunity issue in HB 145.
MR. TILLERY said there was no sovereign immunity in HB 145. He
said SB 86 is entirely different from HB 145.
SENATOR THERRIAULT moved CSSB 86(CRA) from committee with
individual recommendations and attached fiscal note(s).
SENATOR FRENCH objected.
Roll call proved CSSB 86(CRA) passed from committee on a 3-2
vote with Senators French and Guess dissenting.
There being no further business to come before the committee,
Chair Seekins adjourned the meeting at 10:29:04 AM.
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