HOUSE JUDICIARY STANDING COMMITTEE February 25, 2000 1:22 p.m. MEMBERS PRESENT Representative Pete Kott, Chairman Representative Joe Green Representative Norman Rokeberg Representative Jeannette James Representative Lisa Murkowski Representative Eric Croft MEMBERS ABSENT Representative Beth Kerttula OTHER HOUSE MEMBERS PRESENT Representative William K. "Bill" Williams COMMITTEE CALENDAR HOUSE BILL NO. 163 "An Act relating to qualifications of voters; relating to the registration of voters; relating to election districts and officials; relating to election procedures and ballots; relating to special procedures for elections; relating to nomination of candidates; relating to national elections; relating to special elections and appointments; relating to constitutional amendments; relating to election offenses and corrupt practices; relating to election pamphlets; relating to the deferral of jury service for certain election officials; relating to an exemption from the State Procurement Code regarding election ballots; relating to the provision and use of mailing addresses on permanent fund dividend applications for election purposes; relating to the inclusion of voter registration forms with permanent fund dividend applications; making conforming amendments in references to 'election district' and 'chairman'; and providing for an effective date." - MOVED CSHB 163(JUD) OUT OF COMMITTEE HOUSE BILL NO. 350 "An Act repealing the statutory bars to the State of Alaska's prosecution of a criminal act that resulted in a conviction or acquittal by the United States, another state, or territory." - MOVED HB 350 OUT OF COMMITTEE WITH A LETTER OF INTENT HOUSE BILL NO. 304 "An Act relating to issuance and sale of revenue bonds to fund drinking water projects, to creation of an Alaska clean water administrative fund and an Alaska drinking water administrative fund, to fees to be charged in connection with loans made from the Alaska clean water fund and the Alaska drinking water fund, and to clarification of the character and permissible uses of the Alaska drinking water fund; amending Rule 3, Alaska Rules of Civil Procedure; and providing for an effective date." - MOVED HB 304 OUT OF COMMITTEE HOUSE BILL NO. 368 "An Act relating to release of persons before trial and before sentencing or service of sentence; relating to custodians of persons released, to security posted on behalf of persons released, and to the offense of violation of conditions of release; amending Rule 41(f), Alaska Rules of Criminal Procedure; and providing for an effective date." - HEARD AND HELD PREVIOUS ACTION BILL: HB 163 SHORT TITLE: DIVISION OF ELECTIONS Jrn-Date Jrn-Page Action 3/26/99 583 (H) READ THE FIRST TIME - REFERRAL(S) 3/26/99 584 (H) STA, JUD, FIN 2/03/00 (H) STA AT 8:00 AM CAPITOL 102 2/03/00 (H) 2/08/00 (H) STA AT 8:00 AM CAPITOL 102 2/08/00 (H) Moved CSHB 163(STA) Out of Committee 2/08/00 (H) MINUTE(STA) 2/09/00 2138 (H) STA RPT CS(STA) NT 4DP 1NR 2/09/00 2139 (H) DP: JAMES, SMALLEY, KERTTULA, WHITAKER; 2/09/00 2139 (H) NR: HUDSON 2/09/00 2139 (H) FISCAL NOTE (GOV) 2/16/00 (H) JUD AT 1:00 PM CAPITOL 120 2/16/00 (H) Scheduled But Not Heard 2/23/00 (H) JUD AT 1:00 PM CAPITOL 120 2/23/00 (H) Heard & Held 2/23/00 (H) MINUTE(JUD) 2/25/00 (H) JUD AT 1:00 PM CAPITOL 120 BILL: HB 350 SHORT TITLE: CRIMES PROSECUTED IN OTHER JURISDICTIONS Jrn-Date Jrn-Page Action 2/07/00 2119 (H) READ THE FIRST TIME - REFERRALS 2/07/00 2119 (H) JUD, FIN 2/07/00 2119 (H) INDETERMINATE FISCAL NOTE (ADM) 2/07/00 2119 (H) ZERO FISCAL NOTE (LAW) 2/07/00 2119 (H) GOVERNOR'S TRANSMITTAL LETTER 2/07/00 2119 (H) REFERRED TO JUDICIARY 2/25/00 (H) JUD AT 1:00 PM CAPITOL 120 BILL: HB 304 SHORT TITLE: CLEAN WATER FUND/DRINKING WATER FUND Jrn-Date Jrn-Page Action 1/21/00 1969 (H) READ THE FIRST TIME - REFERRALS 1/21/00 1969 (H) CRA, JUD, FIN 1/21/00 1969 (H) FISCAL NOTE (DEC) 1/21/00 1969 (H) ZERO FISCAL NOTE (REV) 1/21/00 1969 (H) GOVERNOR'S TRANSMITTAL LETTER 2/08/00 (H) CRA AT 8:00 AM CAPITOL 124 2/08/00 (H) Moved Out of Committee 2/08/00 (H) MINUTE(CRA) 2/09/00 2142 (H) CRA RPT 1DP 2NR 1AM 2/09/00 2142 (H) DP: HARRIS; NR: MURKOWSKI, HALCRO; 2/09/00 2142 (H) AM: DYSON 2/09/00 2142 (H) FISCAL NOTE (DEC) 1/21/00 2/09/00 2142 (H) ZERO FISCAL NOTE (REV) 1/21/00 2/18/00 (H) JUD AT 1:00 PM CAPITOL 120 2/18/00 (H) Heard & Held 2/18/00 (H) MINUTE(JUD) 2/25/00 (H) JUD AT 1:00 PM CAPITOL 120 BILL: HB 368 SHORT TITLE: RELEASE OF CRIMINAL DEFENDANT Jrn-Date Jrn-Page Action 2/11/00 2181 (H) READ THE FIRST TIME - REFERRALS 2/11/00 2181 (H) JUD, FIN 2/11/00 2182 (H) FISCAL NOTE (ADM) 2/11/00 2182 (H) INDETERMINATE FISCAL NOTE (COR) 2/11/00 2182 (H) ZERO FISCAL NOTE (LAW) 2/11/00 2182 (H) GOVERNOR'S TRANSMITTAL LETTER 2/11/00 2182 (H) REFERRED TO JUDICIARY 2/25/00 (H) JUD AT 1:00 PM CAPITOL 120 WITNESS REGISTER ANNE CARPENETI, Assistant Attorney General Criminal Division Legal Services Section-Juneau Department of Law PO Box 110300 Juneau, Alaska 99811-0300 POSITION STATEMENT: Discussed HB 350 and the issue of double jeopardy; discussed HB 368 and answered questions. BLAIR McCUNE, Deputy Director Alaska Public Defender Agency 900 West Fifth Avenue, Suite 200 Anchorage, Alaska 99501-2090 POSITION STATEMENT: Testified in opposition to HB 350; discussed concerns with HB 368. DAN EASTON, Director Division of Facility Construction & Operation Department of Environmental Conservation 410 Willoughby Avenue, Suite 105 Juneau, Alaska 99801-1795 POSITION STATEMENT: Related his prior discussion with Representative Rokeberg regarding amendments to HB 304. LAUREE HUGONIN, Director Alaska Network on Domestic Violence and Sexual Assault 130 Seward Street, Room 209 Juneau, Alaska 99801 POSITION STATEMENT: Supported HB 368, but expressed concerns and offered suggestions. ACTION NARRATIVE TAPE 00-20, SIDE A Number 0001 CHAIRMAN PETE KOTT called the House Judiciary Standing Committee meeting to order at 1:22 p.m. Members present at the call to order were Representatives Kott, Rokeberg, James and Croft. Representatives Green and Murkowski arrived as the meeting was in progress. HB 163 - DIVISION OF ELECTIONS CHAIRMAN KOTT announced that the first order of business is HOUSE BILL NO. 163, "An Act relating to qualifications of voters; relating to the registration of voters; relating to election districts and officials; relating to election procedures and ballots; relating to special procedures for elections; relating to nomination of candidates; relating to national elections; relating to special elections and appointments; relating to constitutional amendments; relating to election offenses and corrupt practices; relating to election pamphlets; relating to the deferral of jury service for certain election officials; relating to an exemption from the State Procurement Code regarding election ballots; relating to the provision and use of mailing addresses on permanent fund dividend applications for election purposes; relating to the inclusion of voter registration forms with permanent fund dividend applications; making conforming amendments in references to 'election district' and 'chairman'; and providing for an effective date." CHAIRMAN KOTT reminded the committee that at the last hearing they had heard an extensive amendment [Amendment 1, adopted 2/23/00] to the bill. Since the numbering in Amendment 1 did not match the committee substitute before them at the time [CSHB 163(STA)], the committee now had before it a new CS that incorporates the changes in the appropriate locations. Number 0081 REPRESENTATIVE JAMES asked if Chairman Kott had thoroughly reviewed the new CS, and whether it thoroughly incorporates what was passed. CHAIRMAN KOTT indicated the new CS does incorporate the changes. Number 0104 REPRESENTATIVE JAMES made a motion to adopt the CS for HB 163, Version 1-LS0769\H. There being no objection, it was so ordered. Number 0122 REPRESENTATIVE JAMES moved to report the CS for HB 163, Version LS0769\H, out of committee with individual recommendations and the accompanying fiscal note. There being no objection, it was so ordered and CSHB 163(JUD) was reported out of committee. HB 350 - CRIMES PROSECUTED IN OTHER JURISDICTIONS CHAIRMAN KOTT announced that the next order of business before the committee is HOUSE BILL NO. 350, "An Act repealing the statutory bars to the State of Alaska's prosecution of a criminal act that resulted in a conviction or acquittal by the United States, another state, or territory." [The bill had one section, which read: "AS 11.71.310 and AS 12.20.010 are repealed."] Number 0240 ANNE CARPENETI, Assistant Attorney General, Criminal Division, Legal Services Section-Juneau, Department of Law, informed the committee that HB 350 changes the statutory bar to the state's prosecution of criminal cases when another jurisdiction has already prosecuted them, in circumstances where it is important for the state to prosecute. Whereas AS 12.20.010 is the general statutory bar in effect since statehood, AS 11.71.310 is the statutory bar for drug offenses, in effect since 1982, when the current version of the state's drug laws were passed. MS. CARPENETI explained that two important recent cases have caused reconsideration of this policy that has been followed since statehood. First was the World Plus pyramid scheme fraud case out of Fairbanks, in which the defendant was charged by the federal government with various federal offenses. The state prosecuted for violation of Alaska's securities laws, but the prosecution was dismissed on the basis of this statute. Ms. Carpeneti told members that important state interests should have been pursued in that prosecution, and therefore the state has noticed appeal. The second case occurred when a cruise ship dumped dirty water into Southeast Alaska's waters last summer. Here again, the federal government prosecuted the cruise ship company but the state was not able to do so because of the aforementioned statute. Again, there were important state interests involved. Therefore, both of these cases have led to this legislation. Number 0428 REPRESENTATIVE ROKEBERG referred to the cruise ship fact pattern and asked whether the state had civil remedies available. MS. CARPENETI answered that they may have, which could be addressed by someone else. However, the state was unable to pursue criminal penalties and fines for actions that are crimes under the state's laws. REPRESENTATIVE ROKEBERG asked why this would not be double jeopardy in a criminal action. MS. CARPENETI explained that Alaska's courts and federal courts have upheld that it is not a violation of double jeopardy for prosecutions from different governmental authorities to prosecute and punish for the same conduct; therefore, the state and federal governments could prosecute for the same conduct without creating double jeopardy. However, the state and a municipality could not prosecute for the same conduct because the powers of each come from the same source. The courts have upheld that double jeopardy applies to repetitive prosecution by the same governmental entity. REPRESENTATIVE ROKEBERG inquired about the age of the line of cases on this principle and whether the U.S. Supreme Court has ever ruled on it. MS. CARPENETI answered that regarding the federal government, the line of cases would be fairly old, to the best of her knowledge, and it is established law. Number 0597 REPRESENTATIVE ROKEBERG inquired as to why the state now wants to be able to do this. He asked whether it is a matter of subjective judgment on the part of the Attorney General, for example, who may feel that the punishment meted out by one jurisdiction wasn't severe enough, and so, for retribution, the state would prosecute again to get the miscreant twice instead of once. MS. CARPENETI answered that in most cases the state would evaluate a prosecution as it would any case. There isn't an expectation of going out and prosecuting people that others have prosecuted. In drug cases, for example, the state works with the federal government and cooperates with the federal drug enforcement people. Sometimes the federal government decides to pursue a prosecution in a particular case, and sometimes the state does. Ms. Carpeneti related her belief that the Attorney General would give consideration as to whether the interests of the authority that has already prosecuted - in most case, the federal government - have really brought justice to the interests of the State of Alaska. She cited the cruise ship pollution case as the best example. She specified that the federal government punishment for the cruise ship pollution case was fines. She indicated the state also would be interested in a prosecution from which fines could be collected for criminal behavior because the pollution had occurred in state waters. Number 0730 REPRESENTATIVE ROKEBERG asked why the state could not have pursued civil remedies instead of criminal ones. MS. CARPENETI said she supposes that civil remedies could have pursued, but she doesn't feel comfortable discussing that because she isn't familiar with that part of the case. She pointed out that for every case evaluated for prosecution, the following are reviewed: the harm, the laws, the reasons for the laws, and the evidence. Much of it is making decisions that [the department] believes to be the best policy for the state. She believes that the Attorney General would have liked to have had the choice to prosecute the cruise ship company for polluting Alaska's waters. REPRESENTATIVE ROKEBERG referred to the World Plus Ponzi scheme and asked if the state could pursue civil remedies or other fines under the [Alaska Securities] Act. MS. CARPENETI clarified that they are criminal security violations that the state brought, but which were dismissed because the court found that the federal and state prosecutions were too similar and violated the statute. REPRESENTATIVE ROKEBERG noted that having authored the rewrite of the Alaska Securities Act, he would point out that fines can be levied civilly or by administrative adjudication under that Act. He said he is troubled with both these fact patterns because there are remedies available to the state other than dual criminal prosecution. Number 0879 REPRESENTATIVE CROFT emphasized that because the state is a separate sovereign entity, it has the power to make things criminal and should have the power to prosecute those laws and the violators. Whether the federal government decides to punish a particular course of conduct lightly or heavily does not affect the state's sovereign right to decide the appropriate punishment. This is necessary in order to be able to place the level of punishment that the legislature has decided for a criminal act. It is a point of discretion whether the state believes it ought to pursue a prosecution, regardless of what the federal government does or does not do. REPRESENTATIVE JAMES agreed with Representative Croft. The issue is the sovereignty of the state, she said. Although she believes Representative Rokeberg's remarks have merit, she emphasized that she is more distressed with civil penalties after a criminal penalty than she is with a criminal penalty after a criminal penalty. She turned to the pollution case and asked if the "tanker" dumped pollution within Alaska's waters as well as outside the three-mile limit. Furthermore, was the federal case about dumping in Alaska's waters or outside Alaska's waters? MS. CARPENETI related her belief that the case dealt with dumping both inside and outside of Alaska's waters. REPRESENTATIVE JAMES commented that [pollution dumped] within Alaska's waters has the possibility of moving outside of Alaska's waters. She clarified that she had wondered if dumping inside and outside of Alaska's waters would result in two different cases. She remarked that she believes that case is important, and that she was disappointed that the state was unable to seek criminal action in the World Plus case, which was a serious breech of Alaska's law. MS. CARPENETI specified, in response to Chairman Kott, that in the cruise ship pollution case the federal government had criminally prosecuted the cruise ship company. CHAIRMAN KOTT asked if repeal of this particular section of law would afford the opportunity to pursue prosecution from the state's standpoint on that particular case. He further asked whether there is a statute of limitations. MS. CARPENETI indicated agreement, but noted that there may be a statute of limitations bar and an ex post facto problem. She said she would provide an answer as to whether the state is pursuing [the cruise ship pollution case] as a civil matter. Number 1174 REPRESENTATIVE GREEN commented that he could not imagine why there would be any concern with regard to eliminating a bar that the state had put in place, thereby allowing prosecution by the state for an offense against the state, whether or not there is federal prosecution. He does not believe it is double jeopardy. REPRESENTATIVE ROKEBERG restated that it is "kicking the guy when he's down" and a de facto double jeopardy, whether legal or not. He said there must have been a public policy discussion about this when this legislature put the bars in place. CHAIRMAN KOTT expressed curiosity regarding why the bar originally went into effect. MS. CARPENETI informed the committee that she believes the original bar was probably in effect before statehood because the general bar is cited as 1962 in Alaska's statutes. She recalled that 1962 was when criminal procedures were adopted after statehood. REPRESENTATIVE GREEN commented that there have been significant changes in the last 40 years. He does not believe that just because the law was in place before is a justification that it should remain. Number 1322 REPRESENTATIVE MURKOWSKI referred to the fiscal note from the Public Defender Agency, which says "The United States Department of Justice has a strict policy against successive state and federal prosecutions. Presumably, if this bill passed, the Department of Law would develop similar standards." She related her understanding that the U.S. Department of Justice has in place what the state currently has on its books. MS. CARPENETI clarified that there is no federal bar on prosecutions after another jurisdiction has prosecuted; however, that is not done very often. She believes that with the Rodney King case the federal government prosecuted the defendants after they were acquitted in state court. Generally, one prosecution is adequate to bring justice to a situation, but in some cases it is not. In the pollution cases and some particular cases, the Attorney General should have the authority to prosecute on the basis of the interests of Alaskans that were harmed. CHAIRMAN KOTT asked if there is some interaction between the Attorney General and the federal prosecutors on cases that involve both [jurisdictions]. MR. CARPENETI affirmed that. CHAIRMAN KOTT related his belief that the state, working together cooperatively with the federal government, could have the state's issues addressed during the prosecution, which could probably save the state some time and energy. REPRESENTATIVE ROKEBERG recalled that in the Rodney King case there were criminal prosecutions, and the subsequent federal prosecutions were under civil rights laws. MS. CARPENETI said she thought they were criminal cases. REPRESENTATIVE CROFT clarified that it was a criminal violation of their civil rights. REPRESENTATIVE ROKEBERG interjected that his point is that there were two different types of causes of actions, one for assault and the other being a civil rights violation. There were two different types of violations, and there was not prosecution for the same violation. REPRESENTATIVE CROFT pointed out that there is no generic federal assault prohibition. Number 1501 MS. CARPENETI clarified that it would be the same act but a different statutory basis, because the department prosecutes on the basis of state law and the federal government prosecutes on the federal law. The same principles being discussed would apply to a similar situation in the state; it would not be called the same crime, but would be based on the same act. REPRESENTATIVE GREEN asked if Ms. Carpeneti has any idea why this law was enacted. MS. CARPENETI said she believes there were probably different considerations in territorial days, as there are now in the states. Currently, about half of the states have a similar provision, but their prosecution is on a county-wide basis, and there is no coordination between counties. In Alaska, there is a statewide prosecution system which runs by the same rules and prosecutes by the same laws, and one person is in charge. It is a different situation now, although perhaps there were questions regarding territorial prosecutions versus local prosecutions in territorial days. She said she was guessing. REPRESENTATIVE GREEN said he had speculated that there was a bar because Alaska, as a territory, would have been part of the federal government, and that would be double jeopardy. Now that Alaska is a state, an independent sovereign, it is different. MS. CARPENETI indicated agreement. In response to a question by Representative Rokeberg, she restated that AS 12.20.010, the general statutory bar, was continued from territorial days, whereas AS 11.71.310 is in the drug statutes. She pointed out that her notes say AS 11.71.310 was adopted in 1982, which was when Alaska's drug laws were rewritten and adopted. She offered to research whether AS 11.71.310 was in effect under the state's prior drug laws. Number 1689 BLAIR McCUNE, Deputy Director, Alaska Public Defender Agency, testified via teleconference from Anchorage. Mr. McCune spoke in opposition to HB 350 due to the issue of double jeopardy, which doesn't allow successive prosecution. Mr. McCune referred the committee to the 1852 case of Moore (ph) v. Illinois and told members that the U.S. Supreme Court had said the federal double jeopardy clause did not prohibit successive state and federal prosecutions. He commented that many of our notions regarding federalism have changed quite a bit. MR. McCUNE referred to Representative Murkowski's comments about the fiscal note and its mention of the federal government's policy; he informed the committee that was alluded to in a more recent 1977 U.S. Supreme Court case, which said, "In response to the court's - meaning the U.S. Supreme Court's - continuing sensitivity to the fairness implications of multiple prosecution power, the Justice Department adopted a policy refusing to bring a federal prosecution following a state prosecution except when necessary to advance compelling interests of federal enforcement." Although there is a lack of federal statute, Mr. McCune stated, it is ameliorated by the strong federal policy against double prosecutions. MR. McCUNE turned to the issue of where the law came from. He related his belief that before statehood, the Alaska Territorial Legislature had adopted all the criminal procedures and criminal laws of the State of Oregon; he believes that is probably where this provision came from. Many Western states have similar statutes on the books; he believes the reason for those statutes is basic fairness as well as economics. If there has been an unsuccessful state prosecution and someone was acquitted, and if there is a compelling federal interest, the federal government sometimes prosecutes, he noted, as happened with the Rodney King case and some others in Alaska. As a matter of fairness and the tradition of the state having this policy, Mr. McCune said he hopes that would continue. Number 1894 CHAIRMAN KOTT pointed out that Mr. McCune, in his fiscal analysis, had noted that several states including Alaska have traditionally prohibited this particular measure. He asked whether Mr. McCune knows how many states that would encompass. MR. McCUNE reported that he had reviewed the legal text book "Constitutional Rights of the Accused," which cites California, Kansas, Nebraska, New Hampshire and New York as all having greater double jeopardy protections in order to minimize the impact of multiple jurisdiction prosecutions. Mr. McCune said he believes that in the World Plus case, the judge cited both Washington and Oregon precedent; therefore, he believes Washington and Oregon could be added to the list of states with a bar like Alaska's in their statutes. Number 1965 REPRESENTATIVE MURKOWSKI referred to the second paragraph of the fiscal note, which states that there is a particular concern with regard to drug cases. She asked why drug cases had been singled out. MR. McCUNE expressed concern because with drug cases, there are many federal drug laws that are very similar to the state laws. If there were many double prosecutions, that would be an area of concern. REPRESENTATIVE JAMES recalled that Mr. McCune had said that [double prosecutions] would create more expense to the Public Defender Agency. She asked what happens if there is a federal case first and a decision, because the Public Defender Agency does not represent the person in the federal case. MR. McCUNE agreed that the Public Defender Agency does not represent people in federal cases. However, if there is an unsuccessful federal prosecution, this law would allow a successive state prosecution for the same act. Number 2062 REPRESENTATIVE JAMES posed a situation in which the federal prosecution fails and the state comes along. She asked if Mr. McCune felt that in such a situation the state would also fail and the money spent in the person's defense would have been for naught. MR. McCUNE answered that the Public Defender Agency would expend the same amount of resources and money whether the person is convicted or acquitted. In fact, the agency probably spends more resources if the person is acquitted. REPRESENTATIVE JAMES said she did not understand Mr. McCune's logic that this legislation would have a fiscal impact on the Public Defender Agency. MR. McCUNE indicated that if the Department of Law's policy or procedure were such that an acquittal in the federal case would cause the state to try the case, such a policy would cause more cases for his agency because the federal acquittal and prosecution would no longer be a bar to subsequent state prosecution. REPRESENTATIVE JAMES asked, then, if Mr. McCune is saying that the state would pick up a case even when the federal prosecution has not made charges because there is a flaw in the federal prosecution. MR. McCUNE indicated he didn't believe that the state would do this lightly. However, there may be some additional cases that would require additional resources. He cited the complicated World Plus case as an example where defending an indigent person would have resulted in expending considerable resources. REPRESENTATIVE JAMES commented that if the state has a case, the Public Defender Agency should not wish to have fewer cases of real infractions simply because it would have a negative effect on the agency's ability to perform them. Number 2204 MR. McCUNE stated that he doesn't believe that the fiscal implications for the Public Defender Agency should be the deciding factor in this committee's consideration of HB 350. He assumes that if the statutes were repealed, the Department of Law would have a similar policy to that currently held by the federal government and thus would not bring a lot of the prosecutions. However, he had wanted to point out in the fiscal note that there may be some cases that do not exist now. REPRESENTATIVE JAMES surmised, then, that Mr. McCune is only indicating it may cost more money but is not disapproving of HB 350 because of that. MR. McCUNE said that is basically correct. He identified the flaw of HB 350 as overturning a great amount of tradition of the Western states. He reiterated that double jeopardy is in the federal and state constitutions because of basic fairness, and therefore changing the statutes goes against that basic fairness. REPRESENTATIVE JAMES concluded that over the last 100 years, the state's sovereignty has been eaten into. She emphasized the importance of that sovereignty. REPRESENTATIVE GREEN indicated agreement. He referred to the first fiscal note, which says passage of HB 350 is expected to result in only a handful of new cases per year, but not enough to cause a fiscal impact on the Department of Law. Representative Green said that this legislation merely removes a bar so if something horrible occurs, then the state can prosecute. As mentioned earlier, the state works very closely with the federal government and thus there probably would not be very many cases. He pointed out that having the ability doesn't necessarily mean it will be utilized each time. REPRESENTATIVE MURKOWSKI related her understanding of the fiscal note prepared by the Public Defender Agency. If the bar to successive prosecutions is eliminated, Mr. McCune suggests that the Department of Law will adopt a policy similar to that of the U.S. Department of Justice; that is, there would be a policy against successive prosecutions. However, in the unusual instance, the state could take steps to address it. REPRESENTATIVE JAMES indicated she believes the state should not be denied its action in egregious cases that affect Alaskans and the people of the United States at the same time. She also agreed that the state should not kick people when they are down. REPRESENTATIVE ROKEBERG asked whether it is logical that two trials cost more than one. MR. McCUNE said that is correct. CHAIRMAN KOTT recognized that clearly the bill moves to full allowance versus full prohibition. If the committee intends to narrow the scope, he indicated they could specify the circumstances. TAPE 00-20, SIDE B Number 0001 REPRESENTATIVE ROKEBERG announced that right now he opposes HB 350 because there is a case under appeal that should be adjudicated before laws are passed. He believes the bill will increase the costs and could allow for prosecutorial abuse regarding an "environmental crime," for example. Furthermore, he believes it is de facto double jeopardy and a matter of fairness. He acknowledged that there is some weight to Representative James' sovereignty argument. CHAIRMAN KOTT noted that there were no additional testifiers. He asked Ms. Carpeneti how HB 350 would affect any open cases where there has been no prosecution yet. Number 0078 MS. CARPENETI answered that if a criminal act is complete, and if there is a federal prosecution, it probably would be a violation of ex post facto to go ahead and prosecute by the state; however, she cannot say that for sure without giving it serious thought. Ms. Carpeneti emphasized that the Attorney General does not intend to start prosecuting people for what other authorities have already prosecuted; however, that ability is desired in cases of extreme public importance and interest. She is sure there would be policies similar to the federal government's that would guide the state regarding when those would be appropriate. MS. CARPENETI said certainly the state won't prosecute drug cases that the federal government is already prosecuting. The state doesn't have the resources, and the department already works with the federal government on these cases. The federal government does a good job on drug cases; sometimes they give cases to the state, and sometimes the two work together. It isn't a concern in terms of being unfair to criminal defendants in Alaska. The purpose of the bill is to prosecute in the unusual case, like the cruise ship case and the pyramid scheme already discussed. Ms. Carpeneti added that about half of the states have a similar statutory bar, but those states have different considerations because their prosecution is based on a more local level than Alaska's, as was discussed earlier. She believes that should be considered when thinking about what other states do in this regard. Number 0173 CHAIRMAN KOTT closed public testimony. REPRESENTATIVE MURKOWSKI remarked that she had talked herself into this. She had sided with Representative Rokeberg until she realized that this will only be used in exceptional cases. Furthermore, she feels more comfortable knowing that the Department of Law hopefully would have a policy that would essentially prohibit or restrict successive prosecutions, although HB 350 contains nothing that would indicate that. She wondered whether it would be appropriate to have a letter of intent to accompany HB 350, which clearly indicates that this would be utilized seldom and only in exceptional circumstances, where there is a greater state interest, and that the policy would complement the U.S. Department of Justice policy, to her understanding of it. CHAIRMAN KOTT agreed it is possible to either forward a letter of intent or include that in AS 11.71.310. REPRESENTATIVE CROFT commented that it is an excellent idea; it would provide an indication of what was thought to future legislatures. Regarding the bill's effect on ongoing prosecutions, he believes the ex post facto constitutional bar of Article I, Section 15, would prohibit application to any acts that had occurred before the effective date; because there is no effective date stated, that would be 90 days from passage. He noted that case law says an ex post facto law is a law passed after the occurrence of a fact or commission of an act which retrospectively changes the legal consequences of the act, which this [bill] would do. Therefore, he doesn't believe anything could be done about the World Plus case or the cruise ship pollution case, nor should that be the ability. Rather, it will just establish it for the future. REPRESENTATIVE JAMES asked if a letter of intent should be drafted before the bill is moved out. CHAIRMAN KOTT stated that with the concurrence of the committee, the letter of intent could be drafted to accompany the bill. Number 0360 REPRESENTATIVE JAMES made a motion to move HB 350, with the letter of intent, as discussed, out of committee with individual recommendations and the attached fiscal notes. There being no objection, HB 350, to be accompanied by a letter of intent, was moved from the House Judiciary Standing Committee,. CHAIRMAN KOTT called an at-ease at 2:20 p.m. He reconvened the committee at 2:22 p.m. HB 304 - CLEAN WATER FUND/DRINKING WATER FUND Number 0392 CHAIRMAN KOTT announced that the next order of business is HOUSE BILL NO. 304, "An Act relating to issuance and sale of revenue bonds to fund drinking water projects, to creation of an Alaska clean water administrative fund and an Alaska drinking water administrative fund, to fees to be charged in connection with loans made from the Alaska clean water fund and the Alaska drinking water fund, and to clarification of the character and permissible uses of the Alaska drinking water fund; amending Rule 3, Alaska Rules of Civil Procedure; and providing for an effective date." CHAIRMAN KOTT reminded the committee that the last time HB 304 was heard, there was an amendment offered to which there was an objection. Upon Chairman Kott's request, Representative Croft withdrew his objection and Representative Rokeberg withdrew Amendment 1. REPRESENTATIVE ROKEBERG announced that he would not be offering the amendment labeled 1-GH2031\A.2, Cook, 2/18/00, which he had brought up at the previous hearing. Number 0428 REPRESENTATIVE ROKEBERG made a motion that the committee adopt Amendment 3, labeled 1-GH2031\A.3, Cook, 2/25/00, which read: Page 8, line 23: Following "assistance to": Insert "organizations that are not exempted from regulation under AS 42.05.711(d) and that provide water service under a certificate of convenience and necessity from the former Alaska Public Utilities Commission or the Regulatory Commission of Alaska and to" Delete "municipal" Page 9, line 18: Delete "A" Insert "An organization that provides water service under a certificate of convenience and necessity or a" REPRESENTATIVE GREEN objected for the purpose of discussion. REPRESENTATIVE ROKEBERG informed the committee that he had met with representatives from the Department of Environmental Conservation (DEC) in order to make adjustments to amendments that he had previously offered. He indicated that the result was to place further sidebars. He reminded the committee that the original concept of the amendments was to allow private entities to be eligible for loan funds for water and sewer from the Clean Water Fund. The DEC had some concerns, however, and had made some recommendations, including the recommendation to ensure that the private utilities are certificated by the Regulatory Commission of Alaska (RCA) and economically regulated; the need for the latter is because there is a distinction between certificates issued by the RCA as to whether they are economically regulated or not. REPRESENTATIVE ROKEBERG noted that the department also had asked about prohibiting the refinancing of current debt when an entity is coming into the loan fund. There was also concern regarding the establishment of different regulatory criteria for that. Representative Rokeberg mentioned that he had discussed a different effective date with the DEC in case it needed time to promulgate regulations; upon review of the [new] amendments, however, he observed that they don't include that. He surmised that perhaps a different effective date is not necessary, according to the drafter. Number 0568 CHAIRMAN KOTT pointed out that Amendments 3 and 4 are identical except that Amendment 4 [labeled 1-GH2031\A.4, Cook, 2/25/00] also makes a change on page 9, line 27. The additional language in Amendment 4 read: Page 9, line 27, following "department.": Insert "A loan may not be made to an organization that is not a municipality to refinance debt of that organization." CHAIRMAN KOTT asked Representative Rokeberg what his intention is with the amendments. After Representative Rokeberg indicated some amendments refer to the clean water section of the bill and some to the drinking water section, and after confusion was expressed by various members, Chairman Kott proposed hearing from Dan Easton of the DEC while Representative Rokeberg reviewed the amendments, which were arriving by fax at various intervals. Number 0656 DAN EASTON, Director, Division of Facility Construction & Operation, Department of Environmental Conservation (DEC), stated that the Administration is not taking a position on the amendments. However, Amendment 4 includes most of the areas of improvement discussed by the DEC with Representative Rokeberg. He commented that the issues are relatively simple and he had reviewed, as did Representative Rokeberg, the suggestions of the department. With regard to the effective date, Mr. Easton explained that if the department finds itself making a lot of loans to numerous small, privately owned utilities, the department's workload will be significantly impacted. Obviously, the program would be designed in such a way to minimize that; however, there is probably no way to get around that if the number of loans doubles or triples, and there will be some fiscal impact. MR. EASTON pointed out that any fiscal impact on the agency would have to be reflected as a general fund fiscal note. In the original bill, there is a funding mechanism. If that funding mechanism were allowed a year to work, the agency could probably collect enough money to take on additional work in the fiscal year 2002, and the loan funds could actually be used to pay for that. A later effective date would also provide more time to set up the program, write the regulations and make any arrangements necessary with financing institutions. MR. EASTON mentioned discussion regarding the possibility of having the amendments allow - which these amendments do not - some differentiation when the division makes loans to public and private utilities. He expressed the need to protect the bond rating for the fund, which is currently very good. Changing the nature of who the division makes loans to may affect the bond rating. MR. EASTON pointed out that private and public utilities also may need to be segregated for the sake of competition in order to ensure that each has a reasonable likelihood of success in receiving the loan. Furthermore, if it costs more to make loans to private utilities versus public utilities, then it may be necessary to consider whether there is a need to establish different loan terms. For example, if it costs more to make loans to private utilities, then perhaps their interest rates would be higher than those of public utilities. Number 0900 REPRESENTATIVE ROKEBERG clarified that he also would be offering the amendments labeled 1-GH2031\A.2, 1-GH2031\A.4 and 1-GH2031\A.5. He said everything has been included except the effective date. Amendment A.5, which had recently arrived by fax, was identical to Amendment 3 [language provided above] except for the addition of the following: Page 10, line 9, following "section.": Insert "The regulations may establish different standards, criteria, procedures, and requirements for loans to organizations that provide water service under a certificate of convenience and necessity from those established for loans to municipalities." CHAIRMAN KOTT, in response to a withdrawal of the objection to Amendment 3, announced that the committee would table Amendment [3] and return attention to Amendment 2 in order to address them sequentially. Number 0998 REPRESENTATIVE GREEN recognized the desire to protect the bond rating. He recalled Mr. Easton's testimony at a prior hearing that the pot of money has more than enough requests already, and that the DEC uses an evaluation process. Hypothetically, requests coming from both the private and the public sectors could result in leaving some public sector requests on the table. He asked: Is there a possibility that someone could say that the department is subsidizing a private entity at the expense of a public entity? MR. EASTON replied that he believes that is the basic policy question; because it is a fundamental policy decision, that is probably why the Administration has no position on this now. Number 1062 REPRESENTATIVE JAMES stated her understanding that it is not the entity but the ratepayer/customer that receives the advantage. Therefore, she doesn't find it discriminatory among ratepayers. She asked what types of private entities exist, surmising that some exist because there is no municipal entity to serve people. She also asked whether the DEC's regulations would allow the opportunity for smaller communities to be co-sponsored, as a guaranty, by a group such as a regional Native corporation. MR. EASTON answered that the latter is certainly a possibility. Currently, the DEC encourages those sorts of arrangements, which would provide greater certainty of loan repayment. REPRESENTATIVE JAMES recalled Mr. Easton's mention of setting aside a certain amount of money for private entities and a certain amount for municipalities. She asked how Mr. Easton envisions that would work. Would the DEC establish separate pots of money? Would it be a percentage? Would it be a percentage of the applicants? Would the DEC measure the applicants on the basis of need and the health and safety of the ratepayers? MR. EASTON said that is the question: If the pie is to be divided, how and where will it be divided? The DEC believes it might be wise to ensure that the department has the ability to explore the possibilities, but they don't have an answer regarding how they would divide things up. In further response to Representative James, Mr. Easton indicated all of the things that she had mentioned would be considered in making the determination on that issue. Number 1212 REPRESENTATIVE CROFT commented that he continues to hold his belief, expressed at the previous hearing, that this is a government subsidy to a business entity, which is inappropriate here. Alluding to the Fairbanks utility that apparently had generated this legislation, he said this is particularly troublesome because [that utility] was purchased from a public entity, from the public, under certain conditions that were known at the time. REPRESENTATIVE JAMES objected to Representative Croft's comments, saying she is thinking of rural communities. REPRESENTATIVE CROFT pointed out that this covers Fairbanks and others in rural Alaska and elsewhere. The Fairbanks entity is the one he knows about, because they testified before the committee; it was purchased from the Fairbanks North Star Borough and the people of Fairbanks eventually, at a set price, with the idea that it would have to obtain conventional loans. If this is changed after the fact to a subsidized loan, in effect Fairbanks should have received more for the utility back then. He believes it goes to the profit of that private utility. The loans create an asset base, which creates the rate base; the larger the rate base can be made, the larger the rate base is for the profit. Although it doesn't go directly to that, as testified to at the previous hearing, it does creates the potential for cheaper loans. He surmised that the discussion now was aimed at Amendment 2. CHAIRMAN KOTT stated his understanding that no amendment was officially before the committee. REPRESENTATIVE CROFT asked Mr. Easton if it would be easier for the department to set up the program under the constraints identified, and then the legislature could, in separate legislation, make proposals to change the program. At that point, the DEC would know more about how the loan and bonding work, and what room there is to bring in more entities. He expressed concern that the DEC would be doing a whole new project and a whole new addition to it at the same time. [REPRESENTATIVE WILLIAMS joined the committee at the table. He did not speak during the meeting. However, committee packets for HB 304 contained a letter to him as chairman of the DEC Finance Subcommittee, dated 2/23/00, from Kurt Fredriksson of the DEC.] Number 1408 MR. EASTON answered that the more time the DEC can have to work and to design this, the easier it would be for the department. Number 1452 REPRESENTATIVE MURKOWSKI told members she shares the concern expressed by Representative Green that there is only one "pie," for which they are considering bringing in private entities as well. She asked how the "pie" is divided up currently. MR. EASTON explained that it is a competitive process. At about this time every year, the DEC sends out applications to all municipalities, which then submit the applications. The DEC scores those applications using the criteria, which are weighted fairly heavily toward public health but also measure other things such as whether the loan would result in affordable water systems and whether it would help the systems comply with the Safe Drinking Water Act. It is a competitive, ranked-application process. REPRESENTATIVE MURKOWSKI asked, if these amendments passed, whether the competitive application process likely would continue but just include private entities as well, competing for that same limited pool and possibly leaving out municipalities. MR. EASTON said that is correct. REPRESENTATIVE GREEN recalled Mr. Easton's testimony from a prior hearing indicating that the DEC, in its review of applications for loans, makes the entity's ability to repay a big consideration. MR. EASTON answered in the affirmative. Number 1607 REPRESENTATIVE JAMES asked whether Mr. Easton knows how many private water systems there are in the state. She commented that most of the small private water systems that she is thinking of exist because there is no municipal water system there. She feels that those folks would be in jeopardy, if their rates are high, to provide the safety that could be provided in a municipality. She asked: If the entity could meet the repayment test so that it doesn't affect statewide bonding, and if there is a health reason why this money should be loaned, then, according to law, would it not be true that the beneficiaries of this low-interest loan must be the ratepayers? MR. EASTON deferred to the RCA for an explanation of what it means to be RCA-regulated. Generally, he said, he knows that it is part of the RCA's responsibility to review and regulate the profits and how the savings are distributed with public utilities. REPRESENTATIVE JAMES restated her belief that these low-interest loans must benefit the ratepayers, not the municipalities or the private owners of water systems. It is from that position that she is arguing that point, she added. MR. EASTON said that is his understanding as well. However, he doesn't know the extent to which RCA regulations protect the consumers and require that profits be passed on to them. In discussions with people over the last few days, he has found some divergence in opinion on that point. Again, he recommended that the answer come directly from the RCA. Number 1791 REPRESENTATIVE MURKOWSKI asked if Mr. Easton knows how many of the smaller utilities are regulated by the RCA. MR. EASTON related his understanding that the RCA currently regulates every water and sewage utility that has ten or more service connections and provides that service for compensation. He estimated that there are 600-700 drinking water systems in the state. Using round numbers, if there are 250 communities, one could assume that the balance is largely private utilities. CHAIRMAN KOTT announced that the committee could take up the amendments. He stated his understanding that Amendment 3 had been withdrawn earlier. Number 1893 REPRESENTATIVE ROKEBERG made a motion that the committee adopt Amendment 2 [1-GH2031\A.2, Cook, 2/18/00], which read: Page 1, line 2, following "projects,": Insert "to the Alaska clean water fund," Page 7, following line 13: Insert a new bill section to read: "* Sec. 18. AS 46.03.032(p)(1) is amended to read: (1) "other qualified entity" means an entity that is not a municipality with a project that is eligible for assistance under [INTERMUNICIPAL OR INTERSTATE AGENCY AS THOSE TERMS ARE USED IN] 33 U.S.C. 1383 [, AND MAY INCLUDE AN AUTHORITY, CORPORATION, INSTRUMENTALITY, ENTERPRISE, OR OTHER ENTITY FORMED THROUGH AN AGREEMENT BETWEEN A MUNICIPALITY AND ONE OR MORE OTHER GOVERNMENTAL ENTITIES UNDER AS 29.35.010(13) OR UNDER ART. X, SEC. 13, CONSTITUTION OF THE STATE OF ALASKA, OR BETWEEN A MUNICIPALITY AND A REGIONAL HOUSING AUTHORITY UNDER AS 18.55.996(b)];" Renumber the following bill sections accordingly. Page 11, line 30: Delete "22" Insert "23" Page 11, line 31: Delete "Section 24" Insert "Section 25" CHAIRMAN KOTT noted that there was an objection to Amendment 2. REPRESENTATIVE ROKEBERG explained that Amendment 2 would add the definition of "other qualified entity," which would allow the inclusion of private entities under this bill. REPRESENTATIVE CROFT said he had the same philosophical objections stated earlier under general discussion. He pointed out that there had been testimony at an earlier hearing from the Anchorage Water & Wastewater Utility (AWWU) and the equivalent water utility in Juneau. The AWWU representative basically had said it had not raised its rates in eight years because of access to these low-cost loans. Already the demand exceeds the supply, and if many more people are added to the line, depending upon how they compete, the rates may have to be raised because of the lack of the 4 and 5 percent loans. Therefore, he pointed out, that would have a direct impact on consumers in his district. REPRESENTATIVE CROFT reiterated his belief that this would subsidize a private business and the profits of a private business that was purchased from the people for a set price, which did not include those subsidized loans. With subsidized loans, an entity can increase its asset base that provides the rate base that provides the allowable profit. For him, the fundamental question is a financial one, especially for his constituents in Anchorage and Representative Kerttula's constituents in Juneau. He believes this discussion and these amendments would best be heard in the House Finance Committee. REPRESENTATIVE ROKEBERG commented that this is not a new program. Furthermore, he lives where Representative Croft lives, and there is a private water system; those are Representative Croft's constituents as well. He turned to the situation in Fairbanks and the AWWU testimony, saying that over the course of the last eight years when there were no rate increases in Anchorage, Fairbanks was in the competition and had only dropped out a few months ago. The issue here is fairness, the ability of all citizens in Alaska to access it based on the criteria for public health established by the department. REPRESENTATIVE GREEN asked what other sorts of loans lending institutions are giving now. For example, would the Alaska Industrial Development and Export Authority (AIDEA) or some other state lending institution be able to satisfy the need private entities have for lower-rate loans? MR. EASTON said he did not know. REPRESENTATIVE GREEN agreed with Representative Croft that this has moved into a financial discussion. TAPE 00-21, SIDE A REPRESENTATIVE JAMES explained why she supports Amendment 2. She sees this as a policy issue having nothing to do with the fiscal note. This is a safe water issue. Every citizen of Alaska who has a water system, whether privately or municipally owned, and who would meet the qualifications in this bill, should be entitled to this low-rate loan. She believes the DEC will prioritize the applications for this fund. She also believes that for the committee to think of any specific group of people or [company] is misleading. CHAIRMAN KOTT acknowledged that some people view this as private- sector people competing for public dollars. Number 0243 REPRESENTATIVE CROFT clarified that he wasn't implying that this is out of order in this committee. He believes that adding 600 new people who want part of this "pie" will affect the consumers that have been using it in the Anchorage area principally. To his understanding, loans to a diverse group of people will be very different from the experience with loans to municipalities, which have been stable and good at repaying. The loans to such municipalities have resulted in competitive rates. Under this, it would be an entirely new situation. He reiterated his concern with the fiscal issues that would be best discussed in the House Finance Committee. However, he stated that at this stage he doesn't want to hold up this bill for those facts. Upon a roll call vote, Representatives Rokeberg, James and Kott voted in favor of the adoption of Amendment 2, and Representatives Murkowski, Croft and Green voted against it. Therefore, Amendment 2 failed to be adopted by a vote of 3-3. REPRESENTATIVE ROKEBERG [referring to the interrelationship of the amendments] commented that if one amendment fails, then they all fail. Number 0443 REPRESENTATIVE JAMES made a motion that HB 304 be held to the next meeting in order to receive additional information that has been requested by those who object to the amendment. She restated that this is a fairness issue. CHAIRMAN KOTT said that could be a possibility; however, the bill has a House Finance Committee referral, and it has a number of hurdles before reaching the Senate, where it would also receive scrutiny. Chairman Kott directed the committee's attention to the letter dated February 23, 2000 [addressed to Representative Williams, chair of the DEC budget subcommittee]. Chairman Kott noted that he and Representative Croft sit on that subcommittee. He explained that in response to his own inquiry as to what HB 304 could potentially save in general fund dollars, that letter says HB 304 could save up to $600,000; Chairman Kott noted that he would like a portion of that savings to be put towards food and sanitation inspections. Therefore, his only concern is that he doesn't want to see this bill belabored to the extent that the state loses out on some savings. However, he would follow the will of the committee. Number 0614 REPRESENTATIVE MURKOWSKI commented that HB 304 has been debated adequately, and nothing would prevent movement of the amendment in the House Finance Committee, where additional information could be obtained. She pointed out that she also had heard HB 304 in the House Community & Regional Affairs Committee, where she liked it, and she wants to see it move forward. As one who voted against the amendment, she doesn't know whether any additional information would change her mind in the next week or so. REPRESENTATIVE GREEN agreed that bringing up the amendments in the House Finance Committee would be appropriate. REPRESENTATIVE CROFT concurred, pointing out that the House Finance Committee is co-chaired by a member from Fairbanks. He said he doesn't want to hold HB 304 any longer. REPRESENTATIVE JAMES reiterated her objection to this being considered a Fairbanks issue, saying it is a statewide issue of fairness. Number 0797 REPRESENTATIVE ROKEBERG made a motion to report HB 304 out of committee with individual recommendations and attached fiscal notes. REPRESENTATIVES JAMES and ROKEBERG objected. REPRESENTATIVE ROKEBERG commented that the bill should be amended, and those in Spenard who have private water systems should be able to compete for low-interest loans. Upon a roll call vote, Representatives Croft, Green, Murkowski and Kott voted in favor of reporting HB 304 out of committee and Representatives Rokeberg and James voted against reporting HB 304 out of committee. Therefore, HB 304 was reported out of the House Judiciary Standing Committee by a vote of 4-2. CHAIRMAN KOTT requested that he be allowed to submit the letter of February 23, 2000, to the House Finance Committee and to recommend that the fiscal parameters be scrutinized with the notion that perhaps additional funds could be placed in the food inspection area; there were no objections to the request. [HB 304 was moved out of the committee.] HB 368 - RELEASE OF CRIMINAL DEFENDANT CHAIRMAN KOTT announced that the final order of business before the committee is HOUSE BILL NO. 368, "An Act relating to release of persons before trial and before sentencing or service of sentence; relating to custodians of persons released, to security posted on behalf of persons released, and to the offense of violation of conditions of release; amending Rule 41(f), Alaska Rules of Criminal Procedure; and providing for an effective date." Number 0917 ANNE CARPENETI, Assistant Attorney General, Criminal Division, Legal Services Section-Juneau, Department of Law, explained that HB 368 would allow the courts more creative means with regard to having people released after being charged with a crime pending trial, pending sentencing, or pending service of sentencing. At the same time, the public and the victim would be protected. Furthermore, the bill would ensure that the defendant will be present for court trials or other court appearances. MS. CARPENETI informed members that HB 368 accomplishes this in four ways. First, it specifically allows for a court to impose a performance bond on a person charged with a crime. A performance bond requires a person to pay an amount of money into the court. Furthermore, the judge orders the defendant to abide by conditions such as not drinking, not contacting the victim, not violating laws, and other specific conditions as apply to the particular case. If the defendant does not abide by the conditions, the bond can be forfeited. This is a monetary way to encourage defendants to abide by the conditions of their release. Ms. Carpeneti noted that judges in the First Judicial District have been using performance bonds for years. On February 18, she noted, the Court of Appeals found that Alaska's statutory language in Title 12, Chapter 30, does not in fact allow judges to use performance bonds. MS. CARPENETI explained that another way to allow people to be released pending trial is to appoint a third-party custodian who agrees to be responsible for the defendant. The custodian is required to report to the judge or the police if the defendant has violated a condition of release. Although most custodians take their responsibility seriously, some do not. She pointed out that HB 368 provides that a third-party custodian must be warned that failure to immediately report violations of the defendant's conditions can place [the third party] in contempt of court. MS. CARPENETI advised members that HB 368 also encourages the defendant to abide by the conditions of release because it adopts a class A misdemeanor offense for violation of conditions if the defendant has been charged with a felony offense. For defendants charged with a misdemeanor offense who have violated the conditions of release, HB 368 imposes a class B misdemeanor; the Municipality of Anchorage has a similar ordinance, which the prosecutor has indicated is a very effective tool. Ms. Carpeneti explained that often when the court sentences a person for a crime, the sentence is set for a later date, which can be for the convenience of the defendant or the corrections system. Therefore, HB 368 clarifies that the court has the authority to do what it is already doing. MS. CARPENETI returned to the issue of performance bonds. She reported that when a person violates the conditions of release in connection with a prohibition against contacting the victim, HB 368 provides for forfeiture of the security posted. It also allows the court to forfeit the security if the defendant violates other conditions not necessarily related to contacting a victim or witness; the legislation clarifies the court rule in this regard. Ms. Carpeneti concluded that HB 368 allows people to be released while at the same time protecting the public. Number 1229 CHAIRMAN KOTT asked if there is ever a situation in which a defendant is released to a third party who is his or her spouse. MS. CARPENETI replied yes. However, that would not be preferred in a lot of domestic violence (DV) cases. She recognized that it can be a problem because it is a difficult responsibility, and it is difficult to turn in a family member. CHAIRMAN KOTT inquired as to the reasoning behind the 10 percent allowed to be charged as a performance bond, found on page 4, lines 13-16. MS. CARPENETI pointed out that the same language appears on page 4, lines 7-10, regarding an appearance bond. She believes that historically the 10 percent posting was to allow people to be released without having a bail bondsman. Ms. Carpeneti said she had thought of suggesting that the language in paragraph (6) be deleted in order to allow the court to impose a certain amount rather than 10 percent. She indicated it is rare that a person who posts 10 percent violates the conditions and then comes up with the remainder of the bond; therefore, it is probably more practical to allow the court to set a certain amount. She proposed deleting the following language on page 4, paragraph (6): "in cash or other security" and "of a sum not to exceed 10 percent of the amount of the bond; the deposit". MS. CARPENETI informed the committee of the following suggestion by Mr. Wooliver of the Alaska Court System. Usually, immediate effective dates are avoided when dealing with court rule changes. Therefore, removing the immediate effective date is suggested because it is difficult for the court system to adopt rules when there is an immediate effective date. CHAIRMAN KOTT related his understanding that if a third party paid the performance bond, it would be 10 percent under the bill, or the defendant could also pay the 10 percent. Although he supports that percentage regarding a third party, he also supports raising the threshold for the defendant up to 20-25 percent. The two would be different because there are different obligations for the defendant and the third party. Number 1490 MS. CARPENETI responded that it is probably best to set a smaller amount and to have whoever is paying the security pay the entire amount. She said this is an incentive. REPRESENTATIVE GREEN expressed concern and asked whether this stringent approach would make it more difficult to obtain bonds. He indicated that if he owned a bonding agency, he would be a little apprehensive about whom the agency allows bonds for. MS. CARPENETI agreed that increased difficulty is possible. However, there is still the possibility of an appearance bail bond, which could be separate from a performance bond. She restated that the performance bond would be based on performing the conditions of release, while the bail bond would be based on the appearance. REPRESENTATIVE GREEN recognized that the bill would add the performance bond. He posed the situation in which the defendant would [feel freer to] violate a condition of release, such as drinking alcohol, because someone else would have posted the bond. MS. CARPENETI said that is always the case in a custodial relationship, and that is why sometimes the custodian calls the court and requests that the defendant be taken back. Number 1621 REPRESENTATIVE GREEN asked Ms. Carpeneti's opinion of inserting the word "reasonable" before "date" on page 5, line 24. MS. CARPENETI agreed that the court would probably feel that any date that it would give would be a reasonable date. She restated that the purpose of having a person begin service on another date would be to accommodate the defendant, generally. However, sometimes that accommodation is for the correctional system, which at times likes to organize people's reporting to them in order to avoid having too few beds, for example. The courts also try to accommodate a defendant who requests accommodations for work. Number 1750 LAUREE HUGONIN, Director, Alaska Network on Domestic Violence and Sexual Assault (ANDVSA), informed the committee that the ANDVSA supports HB 368 because the third party-custodian has a serious responsibility. Often in misdemeanor domestic violence cases, people are released to a third-party custodian. The ANDVSA particularly appreciates Section 4, which requires the courts to inform the custodians about their responsibilities and possible consequences for neglecting those. However, Ms. Hugonin expressed concern that "inform" may merely mean in writing, on a form that the custodian has filled out in agreement of this. She believes the court should have to verbally explain the responsibilities to the potential third-party custodian. MS. HUGONIN indicated the need to better define other consequences that the third-party custodian would face for failure to notify the court of violations. The ANDVSA would also be interested in prohibiting an individual from being a third-party custodian again if that person has been held in contempt of court for failure to notify the court [of a violation of the conditions of release]. MS. HUGONIN pointed out the need to have some limit on the eligibility for a third-party custodian. Furthermore, she recommended prohibiting a third-party custodian from being a custodian for more than one person at a time. In the rural areas, she noted, there have been instances in which an individual has agreed to be a third-party custodian for two or three persons at once; that would seem to be problematic. In conclusion, Ms. Hugonin noted that ANDVSA particularly likes the forfeiture section regarding the contact of the victim, which seems to be a further protection. Number 1936 BLAIR McCUNE, Deputy Director, Alaska Public Defender Agency, testified via teleconference from Anchorage. He related his experience that commercial bonding corporations do not write commercial bonds for performance-type bonds, although they will write bonds for failure to appear. Therefore, this [HB 368] speaks to bonds that will be executed by the defendant or the defendant's family. In most cases, the defendant will not have the resources to post the bond and thus would depend on the his/her family to do so. MR. McCune referred to the 10 percent provision on page 4, paragraph (6). He related his experience that 10 percent is a set figure in court rules and statutes. The court can adjust the total amount of the bond to be greater in order to obtain a greater amount from the 10 percent; the court receives that 10 percent, under the current law, if the individual fails to appear, and can seek the rest of the money. MR. McCUNE expressed his belief that HB 368 would hold more people in jail. He also voiced concern that the courts would overuse this. He noted that the third-party release inserted in statute quite a few years ago has become more of the rule rather than the exception. The agency believes that performance bonds will be issued in every case. Furthermore, this will be a hardship on the defendant as well as his/her family. Mr. McCune pointed out that defendants asking for bail are not in good bargaining positions because they are in jail. MR. McCUNE addressed technical points. He directed attention to page 6 and pointed out that the direct court rule amendment with regard to forfeiture says that the defendant shall forfeit the security if the defendant violates a condition of release by knowingly or intentionally contacting a victim or witness. However, he guessed that [forfeiture] of the performance bond could happen due to any [violation] of a condition of release. Therefore, there could be a situation in which a performance bond is written for not consuming alcohol, yet the forfeiture would be restricted to the contact of the victim or witness. He said that would make sense to some degree, in that one would not want to forfeit a performance bond for the more minor infractions of the conditions of release. MR. McCUNE turned attention to the remission portion. He referred to page 5 and indicated concern that if someone who had put up a performance bond were ten minutes late for a curfew, the judge could put that person in jail and then not take all of the bond, for example. In contrast, the remission section on page 7 still has the old "failure to appear" language on lines 7-9. MR. McCUNE referred to page 4, lines 26-29, and commented that the language had caught him by surprise. He thought that if a person failed to appear for a felony, that person would be charged with felony. However, this seems to say that if someone who is charged with a misdemeanor fails to appear for sentencing or violates an appeal bond, the individual would be found guilty of a felony when the [original] charge is a misdemeanor. Number 2235 MR. McCUNE turned to page 3 and the new crime under the "Violation of condition of release." Currently, if someone violates a substantial condition of release, the person is returned to jail and the bail is increased. However, this makes a separate crime for doing that and takes the authority from the judge; the prosecution would now have the authority to charge the person with a crime for being ten minutes late. He indicated he expects that the prosecution would show some prosecutorial discretion on these matters. He said the agency believes the current system deals with these situations adequately. REPRESENTATIVE GREEN asked about the location of the language to which Mr. McCune referred on page 4. He said he reads the language to say that a violation [for failure to appear] would be punishable as a misdemeanor. MR. McCUNE referred to page 4, line 26, "or while awaiting sentence". He said he interprets that to refer to while awaiting any sentence, whether for a felony or a misdemeanor. REPRESENTATIVE GREEN suggested that refers to a charge of a felony, while paragraph (2) speaks to a charge of a misdemeanor that would be considered as such. MR. McCUNE noted that a judge from Fairbanks had brought this up; the judge had felt that because "before sentence" on page 4, line 26, didn't specify a felony sentence, it would apply to a sentence for both felonies and misdemeanors. He believes that the judge reasoned that a court would view failure to appear for sentencing as more serious than failure to appear for a trial or a hearing. Perhaps this could be clarified by deleting the language after "or" through to "offense," Mr. McCune suggested. Number 2389 REPRESENTATIVE CROFT requested clarification. MS. CARPENETI pointed out that this statute has been in effect since 1966, and this merely makes amendments to cross-reference the forfeiture of security on line 24, page 4. The language has always been interpreted to mean that failure to appear in connection with a felony would mean that person would be charged with a felony, which would be the case with failure to appear with a misdemeanor as well. MS. CARPENETI referred to page 5, "Forfeiture of security." On line 11 of page 5, it provides that the court has discretion to forfeit any security if there is a violation of other conditions. If the court forfeits all or part of a security, then subsection (c), line 15, page 5, takes effect. It is not a mandatory forfeiture, except if the defendant violates a condition about contact; even then, the defendant can ask for a hearing and show that the contact was not knowing or intentional, in which case the court has the authority to remit the forfeiture. CHAIRMAN KOTT asked if there were further questions. There being none, HB 368 was held for further consideration. ADJOURNMENT Number 2478 There being no further business before the committee, the House Judiciary Standing Committee meeting was adjourned at 3:45 p.m.