Legislature(2017 - 2018)BELTZ 105 (TSBldg)
03/08/2017 01:30 PM Senate JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| Confirmation Hearings | |
| SB54 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| + | TELECONFERENCED | ||
| += | SB 54 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
March 8, 2017
1:34 p.m.
MEMBERS PRESENT
Senator John Coghill, Chair
Senator Mia Costello
Senator Kevin Meyer
Senator Pete Kelly
Senator Bill Wielechowski
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
CONFIRMATION HEARINGS
Commissioner, Department of Public Safety
Walt Monegan
- CONFIRMATION ADVANCED
Attorney General of the State of Alaska
Jahna Lindemuth
- CONFIRMATION ADVANCED
SENATE BILL NO. 54
"An Act relating to crime and criminal law; relating to
violation of condition of release; relating to sex trafficking;
relating to sentencing; relating to probation; relating to the
pretrial services program; and providing for an effective date."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: SB 54
SHORT TITLE: CRIME AND SENTENCING
SPONSOR(s): SENATOR(s) COGHILL
02/10/17 (S) READ THE FIRST TIME - REFERRALS
02/10/17 (S) JUD, FIN
02/17/17 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/17/17 (S) Heard & Held
02/17/17 (S) MINUTE(JUD)
02/24/17 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/24/17 (S) -- MEETING CANCELED --
03/01/17 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/01/17 (S) Heard & Held
03/01/17 (S) MINUTE(JUD)
03/03/17 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/03/17 (S) Heard & Held
03/03/17 (S) MINUTE(JUD)
03/06/17 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/06/17 (S) -- MEETING CANCELED --
03/08/17 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
WITNESS REGISTER
JAHNA LINDEMUTH, Attorney General Designee
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: Testified as appointee to the position of
Attorney General, Alaska Department of Law.
WALT MONEGAN, Commissioner Designee
Department of Public Safety
Anchorage, Alaska
POSITION STATEMENT: Testified as appointee to the position of
Commissioner of the Department of Public Safety.
JORDAN SHILLING, Staff
Senator John Coghill
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Described the changes between version O and
version R of SB 54.
ACTION NARRATIVE
1:34:37 PM
CHAIR JOHN COGHILL called the Senate Judiciary Standing
Committee meeting to order at 1:34 p.m. Present at the call to
order were Senators Wielechowski, Kelly, Costello, and Chair
Coghill.
^Confirmation Hearings
CONFIRMATION HEARINGS
Attorney General of the State of Alaska
1:37:05 PM
CHAIR COGHILL announced the first order of business would be a
confirmation hearing for the governor's appointee to the
position of Alaska Attorney General. He welcomed Attorney
General Designee Jahna Lindemuth and asked her to make an
opening statement.
1:37:26 PM
JAHNA LINDEMUTH, Attorney General Designee, Alaska Department of
Law (DOL), advised that she was born and raised in Anchorage,
attended law school at the University of California Berkley and
graduated in the top 10 percent of her class in 1997. When she
returned to Alaska she clerked for Alaska Supreme Court Justice
Robert Eastaugh for one year. Until she accepted this position
six months ago, she spent her entire career working at the
practice now known as Dorsey and Whitney LLP ultimately becoming
managing partner of the Anchorage office. She had a large
commercial litigation practice and did a lot of attorney
malpractice defense.
In 2015 the firm took on an Alaska Innocence Project case for
the Fairbanks Four. That year she spent more than 1,000 hours of
pro bono work for that and some other cases. She described that
work as a call to public service. That is largely what brought
her to this position. After the Fairbanks Four case she applied
for a position on the Alaska Supreme Court. She met with the
Alaska Judicial Council and was recommended for the short list.
She interviewed with the Governor last April, but was not
selected for the position. Several weeks later the Governor
asked her to take the position of Attorney General. It felt like
the right time to make a change and she accepted the offer. She
said it has been an honor to serve the state in this role.
1:40:33 PM
SENATOR MEYER joined the committee.
1:42:41 PM
CHAIR COGHILL asked if she is a servant to the Governor or the
people of Alaska, and how she balances those two things.
ATTORNEY GENERAL LINDEMUTH said she serves at the pleasure of
the Governor, but is always cognizant that she also serves the
people. The department provides legal representation to all the
state entities other than the university and railroad. One of
the main issues in representation is to keep in mind who the
client is in any particular matter, she said. She described the
three hats she wears as attorney general. She is the top law
enforcement officer in the state, she is the manager of the
Department of Law, and she is a member of the Governor's
cabinet.
The Governor is the top elected official she responds to and she
views that role in a fairly traditional way. She provides the
legal analysis, advice and framework for the governor to make
the policy call. She said she doesn't want to make policy calls
because she is not an elected official. She opined that is
consistent with the ethical rules that lawyers face when they
involve the client in decision making.
CHAIR COGHILL said attorneys general in the past have issued
opinions that carry nearly the weight of law. Most recent was
the opinion regarding the state's taxing authority on the gas
pipeline. He asked if she had reviewed that opinion.
ATTORNEY GENERAL LINDEMUTH answered no.
CHAIR COGHILL encouraged her to look at it because that issue is
likely to come up this session. He asked her understanding of
her role as an advocate for the public and what she believes
legislators can do better.
ATTORNEY GENERAL LINDEMUTH replied consumer protection rights
and antitrust cases are for the protection of the public. She
noted that the Department of Law recently hired someone who she
believes will revitalize the area of consumer protection.
Regulatory affairs for utilities also fall within the public
interest arena and the Department of Law takes this seriously.
CHAIR COGHILL asked her perspective on improving the collection
of restitution for victims.
ATTORNEY GENERAL LINDEMUTH said the Department of Law is not
required under the constitution and statutes to undertake
restitution for victims and as a budgetary matter it was cut for
this year. The Court System decided to take that on and she
believes it will likely result in a better result for the
public. Judges will be able to deal with it on a case-by-case
basis when the defendant is before the judge.
CHAIR COGHILL asked her to think about ways to improve
restitution and what the legislature can do to help.
1:51:06 PM
CHAIR COGHILL asked Attorney General Lindemuth to talk about the
reasons that the Department of Law has had to refuse some cases.
ATTORNEY GENERAL LINDEMUTH said a variety of issues are going on
with public safety while Senate Bill 91 changes play out. One of
the larger pieces is that prosecutions are down because the
Department of Law has had to cut prosecutors. "That's one of
those direct correlations - the fewer prosecutors you have, the
less crime that you can prosecute." The department asked for a
flat budget this year in the hope that it would not impact
services. In large part the hope was that this legislature would
develop a plan for fiscal certainty for the state and then the
department would come back and talk about what laws should look
like going forward to address public safety.
CHAIR COGHILL said the conversation needs to take place sooner
rather than later. He added that he already had some
conversations about the budget because public safety must be
addressed properly.
1:54:06 PM
SENATOR MEYER asked her to discuss why, as one of the first
things she did as attorney general, she joined other states in a
suit against ExxonMobil over the issue of climate change.
ATTORNEY GENERAL LINDEMUTH clarified that the amicus brief was
on the issue of states' rights, not whether ExxonMobil should be
investigated for issues related to climate change. The question
in that case was whether an outside company could go to another
jurisdiction to challenge the subpoenas and investigations a
state puts forward in an investigation of that outside company.
Basically, can a Texas court tell her as attorney general what
she can and can't do under Alaska law? She said she has no
position on the larger issue of whether those states should be
investigating ExxonMobil.
SENATOR MEYER asked if she supports changes to the Ninth Circuit
Court of Appeals.
ATTORNEY GENERAL LINDEMUTH said she has litigated in the Ninth
Circuit and she doesn't think that court is amenable to many of
the state's rights issues Alaska brings against the federal
government. She noted that is one reason that Alaska joins cases
in other states when it decides to challenge federal issues. As
a state attorney general she doesn't have a position on whether
that circuit should be broken into two, she said. It's more a
federal issue.
CHAIR COGHILL asked her to comment on the potential settlement
between Ahtna Corporation and the state [downgrading the right-
of-way designation] from an R.S. 2477 to a 17-B easement.
ATTORNEY GENERAL LINDEMUTH said that litigation was ongoing for
9 years and about 3-4 months before trial the state filed a
pleading asking the court to stay the case to allow the parties
to talk further about settlement. While a settlement isn't in
place, there has been enough negotiation for her to be confident
that the litigation could be put off.
She said that while the attorney general has the power to settle
cases, her approach is to involve the clients. In this case four
departments and the governor's office are involved so she wants
all four commissioners and the governor engaged in talking about
the framework and the potential terms. Her role is to make a
recommendation and give the legal framework and the pros and
cons. She said there are risks and benefits to every action, but
everyone felt comfortable that they could reach a settlement
within the framework that was discussed.
Because negotiations are ongoing and litigation is pending, she
said she can't discuss the details of the settlement. However,
she is mindful of the state's interest in protecting access to
the 24 mile right-of-way from Copper Center to Klutina Lake and
making sure that the things the state considers most important
are part of the settlement. She cautioned that there is
compromise with any settlement and she hopes that at the end of
the day Alaskans will look at this as a win-win. Neither party
will get everything it is asserting.
ATTORNEY GENERAL LINDEMUTH explained that Ahtna was challenging
whether the R.S. 2477 right-of-way corridor even exists. Even if
it does exist they were challenging the scope of use - what the
state and the public can do on that right-of-way. A little over
two years ago Judge Guidi entered what she considers a bad order
saying you can drive from point A to point B, but you can't do
anything along the way. That would really limit access. She said
she didn't want to get into the particulars of her advice to the
clients, but she believes that settling to achieve access does
benefit Alaskans.
She advised that rolling the dice and going to litigation will
result in an all-out win or an all-out loss. That's something to
weigh, she said, because an all-out loss would be a loss of
access for every R.S. 2477 right-of-way corridor across the
state. In part because of Judge Guidi's order, she didn't think
this was the case to make that challenge.
ATTORNEY GENERAL LINDEMUTH said that once there is a settlement,
she would be happy to talk through the particulars of the terms
and her thoughts about why a settlement in that case is
beneficial.
2:04:26 PM
SENATOR KELLY emphasized that he didn't want the attorney
general to reach a win-win solution. "Your client is the State
of Alaska and I want you to win on this; and that should be your
approach." He asked if she had "pulled the pin" on the April
24th or April 27th court date.
ATTORNEY GENERAL LINDEMUTH said yes.
SENATOR KELLY asked what advice the agencies involved in this
litigation had and if they felt they had a good case.
ATTORNEY GENERAL LINDEMUTH replied there were a lot of different
people involved from the four departments and all the voices and
viewpoints were considered.
SENATOR KELLY emphasized the importance of R.S. 2477 rights-of-
way easements. He advised:
I don't want you dropping this case and pulling the
pin before we get involved because I'm not as
interested in process or win-win or anything like
that. R.S. 2477 exists and the problem we've had over
the years is getting governors to assert. And we need
to make sure all the noise is out of the way as we
assert our state's right on R.S. 2477, which is the
federal law.
I'm not going to claim to know a lot about this case.
I only heard about it a few days ago, ¼ but it appears
as if you're going to a settlement that isn't going to
make sense to the State of Alaska. We want to make
sure that what we have is consistent with what was
given to us in R.S. 2477 and not negotiated to a point
where we somehow are accepting less than the rights
the state was given in ANCSA [the Alaska Native Claims
Settlement Act of 1971].
Point is, we have R.S. 2477 rights. We need to assert
those rights and we need to make sure that we don't
diminish what R.S. 2477 means in a settlement that
hopes to achieve a win-win.
For my purposes Mr. Chairman, as far as my
participation in this committee, I need a bunch of
answers on R.S. 2477 before I will recommend that your
name be forwarded.
2:07:43 PM
CHAIR COGHILL asked if Judge Guidi's order affected the federal
17-B easement. His understanding is the state's right would be
on the R.S. 2477 right-of-way easement.
ATTORNEY GENERAL LINDEMUTH replied the R.S. 2477 easement is far
better that the 17-B easement for a variety of reasons. The main
issue in the Ahtna case is R.S. 2477. She reiterated that she
can't discuss the terms of the settlement, but it's not final.
She clarified that this is not an easement across federal land.
It is an easement across private land so any court that makes a
final decision on the case will consider R.S. 2477 across
private land and the scope of use issues in that context.
CHAIR COGHILL commented on the balance between the rights of
private landowners and the limited access Alaskans have to land
that traditionally had open access.
2:10:04 PM
SENATOR COSTELLO commented on the significance of R.S. 2477
right-of-way easements and the impact they will have on the
state's future. She asked Attorney General Lindemuth if she
sought input from her counterparts in other western states about
the best approach for fighting for states' rights on the R.S.
2477 issue.
ATTORNEY GENERAL LINDEMUTH said she had not discussed that with
other attorneys general. Her focus has been on this case and the
best outcome for the citizens of Alaska.
CHAIR COSTELLO expressed surprise at the answer and echoed
Senator Kelly's comments, advising her to take a stand and not
fear failure. She referred to an earlier statement about not
making policy calls and asked if her job is different than
elected attorneys general.
ATTORNEY GENERAL LINDEMUTH said there are pros and cons to both
systems. A concern she has with an elected attorney general is
that when money enters the system there could be a question
about whether one entity is favored over another based on
campaign contributions.
2:15:26 PM
CHAIR COSTELLO asked if she agrees that as a member of the
governor's cabinet she does influence policy.
ATTORNEY GENERAL LINDEMUTH agreed that as a cabinet member she
has the opportunity to influence policy and when she advocates
for legislation she is making a policy call. She clarified that
when she said she doesn't set policy it was in the context of
the top law enforcement officer. It's when she's wearing that
hat that she takes the more traditional view of offering legal
advice to the client and having the client made the policy
decision.
2:16:33 PM
SENATOR KELLY provided a grammar lesson on the proper uses of
the term attorney general.
CHAIR COGHILL asked if the state should challenge the transfer
of Native land into federal trust.
ATTORNEY GENERAL LINDEMUTH said the state has been addressing
lands in trust on a case-by-case basis since the Akiachak
litigation ended. Right now, just one application has been
noticed and the state provided comment. In January the federal
government allowed the application to go forward and now there
is a one-acre parcel in the Village of Craig that is held in the
name of the federal government for Craig. She advised that her
office prepared a hundred plus page memo on the legal issues
involved, and they will look at those issues whenever an
application comes up.
She highlighted that Alaska is a Public Law 280 state so all the
state's criminal laws and all the regulatory statutes that are
prohibitory still apply. For example, fish and game laws apply.
She opined that this may be a small issue in Alaska because the
amount of tribal land that could be subject to application is
very small.
CHAIR COGHILL suggested she and the committee have a follow up
conversation about the structure of Public Law 280.
SENATOR KELLY asked if the legislature receives notice when
there is an application to put tribal land in trust.
ATTORNEY GENERAL LINDEMUTH said she didn't know if it was set up
that way but it's a public issue and she would make sure the
legislature is apprised.
CHAIR COGHILL asked Attorney General Lindemuth to seriously
consider the committee's concern about the RS 2477 issue. He
thanked her for appearing and requested she return, at a
mutually agreed time, under the confirmation process.
Commissioner of the Department of Public Safety
2:24:36 PM
CHAIR COGHILL announced the confirmation hearing of Walt Monigan
for Commissioner of the Department of Public Safety (DPS). He
asked him to discuss his duties and the reason the governor
picked him for this position.
2:25:16 PM
WALT MONEGAN, Commissioner Designee, Alaska Department of Public
Safety stated that he served in this position once before and
has spent most of his adult life working in public safety. He
said he views his duties as being responsible for the boots on
the ground for the enforcement of criminal laws, the regulations
governing wildlife resources, fire safety and training, outreach
on issues related to domestic violence and sexual assault, and
the Police Standards Council.
He related a goal he has as commissioner is to strengthen public
safety for every Alaskan in the state regardless of where they
reside. He acknowledged this will be a challenge due to budget
cuts, but he is looking at long-term and intermediate steps to
achieve this goal. He highlighted that the department will
shortly be in active discussion with the contractors that employ
village public safety officers. He summarized his intention to
strengthen the current system and enhance public safety in the
state.
CHAIR COGHILL asked him to comment on three issues: 1) his
perspective of Senate Bill 91 and the proposed revisions based
on comments from law enforcement and the public; 2) what is
happening in the area of domestic violence and sexual assault
since Lauree Morton was removed as executive director of the
Council on Domestic Violence and Sexual Assault (CDVSA); and 3)
what can be done to improve communication between agencies.
COMMISSIONER MONEGAN said he supported Senate Bill 91 in concept
because the current system wasn't working. Change is always
difficult and some tweaks are warranted, but the bill should be
given time to work once it is fully implemented. He stated
support for extending the Criminal Justice Commission another
five years and opined that law enforcement officers will
eventually see the benefits.
Regarding Lauree Morton and CDVSA, he said she is an outstanding
advocate and great resource, but he wanted someone in that
position who would be more aggressive in denouncing domestic
violence and sexual assault. "I needed somebody more dynamic and
somebody more willing to take risk." He reiterated his
continuing support and admiration for Ms. Morton and the work
she has done.
He said he agrees that communication between agencies needs to
be improved. He described the efforts when he was commissioner
last time to improve communication in the criminal justice
working group and his regular conversations with judges. That
notion can be extended to departments. He professed his love for
the state and its residents.
CHAIR COGHILL said he shares that love as well as the concern
that some people need public safety, some need to be held
accountable, and some people need to change direction.
2:37:35 PM
SENATOR MEYER observed that Commissioner Monigan has the perfect
resume for this job. He asked three questions: 1) if there is a
policy the legislature can and should adopt to deal with the bad
element in society; his view of public safety and the
corrections system; and how to deal with drugs inside
institutions.
COMMISSIONER MONEGAN said education is the element that's been
missing in the policy dealing with crime and disorder. During
the formative years there is time to reinforce what parents
should tell their children about respect and making good
choices. He noted that he has initiated conversations with the
commissioner of education to discuss ways to collaborate.
Regarding corrections, he said it's a large system and there is
always some pressing issue. Drugs inside the institutions is one
of the ongoing issues. He expressed his belief that technology
will eventually help with surveillance and interception but
right now dogs are being used successfully to search for
contraband. He described a current situation where people on the
outside are using slingshots and drones to drop drugs into the
prison yard.
2:43:58 PM
stth
SENATOR COSTELLO asked how his work with 1-12 graders in the
Anchorage School District will affect his work in this position.
COMMISSIONER MONEGAN said the biggest takeaway he has from
working with young people is that they have hope in their eyes
and that renews his energy. Kids all have their hopes and dreams
and he would like to work with education and other agencies to
remove adverse childhood experiences to every extent possible.
2:46:59 PM
CHAIR COGHILL thanked Commissioner Monegan and requested he
return, at a mutually agreed time, under the confirmation
process.
SB 54-CRIME AND SENTENCING
2:47:21 PM
CHAIR COGHILL announced the consideration of SB 54. He asked for
a motion to adopt the proposed committee substitute (CS) and
expressed disappointment that his office had yet to receive a
fiscal note for the CS.
2:48:40 PM
SENATOR COSTELLO moved to adopt the CS for SB 54, labeled 30-
LS0461\R, as the working document.
CHAIR COGHILL objected for an explanation of the changes.
2:49:06 PM
JORDAN SHILLING, Staff, Senator John Coghill, Alaska State
Legislature, described the following changes between version O
and version R of SB 54:
Section 6
AS 12.55.125(e) - Sentences of imprisonment for
felonies.
Increases the presumptive range for C-felonies that
are a first conviction from 0 to 120 days to 0 to 1
year.
CHAIR COGHILL asked about suspended time.
MR. SHILLING replied the zero to one-year term can be comprised
of any portion of suspended or active time.
Section 10
AS 12.55.135(l) - Sentences of imprisonment for
misdemeanors.
Provides for up to 5 days of active imprisonment for a
second conviction of Theft in the Fourth Degree (or
similar offenses), rather than no active time for a
second conviction. Up to 5 days of suspended time may
be imposed for a first conviction.
MR. SHILLING explained that the previous version only provided
active imprisonment upon a third and subsequent conviction of
theft in the fourth degree or similar offenses. Version R
provides up to five days of active imprisonment and a term of
probation of up to six months upon a second conviction. A change
was also made for a first conviction; version R provides up to
five days of suspended time for the first conviction of theft in
the fourth degree.
CHAIR COGHILL added that the Department of Law supported
increasing the level of the crime to a class A misdemeanor. "We
thought the active jail time and suspended time would probably
suffice."
2:52:26 PM
SENATOR MEYER expressed appreciation for the changes in Sections
6 and 10. They address the concerns and frustrations that both
the police and public have articulated.
CHAIR COGHILL said his hope is that this will not only give
judges flexibility but also provide the opportunity for more
people to receive risk assessments and diversionary programing.
MR. SHILLING continued to review the changes between version O
and version R.
Section 18
AS 33.07.030(a) - Duties of pretrial services
officers.
Former section 18 is deleted. It required the
Department of Corrections to provide the result of the
pretrial risk assessment to the defendant and
prosecutor.
MR. SHILLING advised that internal work groups are working on
how and when the defendant and the prosecutor receive the
results of the risk assessment so subsequent committees will
need to address that issue.
CHAIR COGHILL added that cross-agency work is ongoing to devise
a solution and it seemed best to wait and see the result of that
work.
SENATOR COSTELLO voiced support for increasing the presumptive
sentence to zero to one year for a class C felony. She said she
likes that it gives discretion to the judges. She noted that
John Skidmore [from DOL] also emphasized the importance of
flexibility.
CHAIR COGHILL removed his objection. Finding no further
objection, version R was adopted, and SB 54 was held in
committee.
2:58:20 PM
There being no further business to come before the committee,
Chair Coghill adjourned the Senate Judiciary Standing Committee
meeting at 2:58 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| CS for SB 54 - Version R.pdf |
SJUD 3/8/2017 1:30:00 PM |
SB 54 |
| SB 54 - Summary of Changes (ver. O to ver. R).pdf |
SJUD 3/8/2017 1:30:00 PM |
SB 54 |
| Walt Monegan - Commissioner - Public Safety.pdf |
SJUD 3/8/2017 1:30:00 PM |
Confirmation Hearing |
| Jahna Lindemuth - Commissioner Law.pdf |
SJUD 3/8/2017 1:30:00 PM |
Confirmation Hearing |