HOUSE JUDICIARY STANDING COMMITTEE March 29, 2000 1:20 p.m. MEMBERS PRESENT Representative Joe Green Representative Norman Rokeberg Representative Lisa Murkowski Representative Eric Croft Representative Beth Kerttula MEMBERS ABSENT Representative Pete Kott, Chairman Representative Jeannette James COMMITTEE CALENDAR HOUSE BILL NO. 398 "An Act relating to the Alaska Life and Health Insurance Guaranty Association." - MOVED CSHB 398(JUD) OUT OF COMMITTEE HOUSE BILL NO. 369 "An Act relating to property exemptions under the Alaska Exemptions Act; and providing for an effective date." - MOVED CSHB 369(JUD) OUT OF COMMITTEE HOUSE BILL NO. 392 "An Act relating to continuances for temporary placement hearings that follow emergency custody of a minor; and amending Rule 10, Alaska Child in Need of Aid Rules." - MOVED CSHB 392(HES) OUT OF COMMITTEE HOUSE BILL NO. 292 "An Act adopting the National Crime Prevention and Privacy Compact; making criminal justice information available to interested persons and criminal history record information available to the public; making certain conforming amendments; and providing for an effective date." - MOVED CSHB 292(JUD) OUT OF COMMITTEE HOUSE BILL NO. 294 "An Act relating to violations of an order to submit to deoxyribonucleic acid (DNA) testing, to court orders and conditions of parole to collect samples for DNA testing, to removal of material from the DNA identification registration system; and to the collection and processing of samples from certain burglary perpetrators for the DNA identification registration system; and providing for an effective date." - HEARD AND HELD PREVIOUS ACTION BILL: HB 398 SHORT TITLE: LIFE AND HEALTH INSURANCE GUARANTY ASSN Jrn-Date Jrn-Page Action 2/16/00 2218 (H) READ THE FIRST TIME - REFERRALS 2/16/00 2218 (H) L&C, JUD 3/03/00 (H) L&C AT 3:15 PM CAPITOL 17 3/03/00 (H) Moved CSHB 398(L&C) Out of Committee 3/03/00 (H) MINUTE(L&C) 3/06/00 2420 (H) L&C RPT CS(L&C) 3DP 2NR 3/06/00 2420 (H) DP: HARRIS, CISSNA, ROKEBERG; 3/06/00 2420 (H) NR: HALCRO, MURKOWSKI 3/06/00 2420 (H) ZERO FISCAL NOTE (DCED) 3/17/00 2598 (H) CORRECTED L&C CS 3/22/00 (H) JUD AT 1:00 PM CAPITOL 120 3/22/00 (H) HEARD & HELD 3/22/00 (H) MINUTE(JUD) 3/29/00 (H) JUD AT 1:00 PM CAPITOL 120 BILL: HB 369 SHORT TITLE: PROPERTY EXEMPTIONS Jrn-Date Jrn-Page Action 2/11/00 2183 (H) READ THE FIRST TIME - REFERRALS 2/11/00 2184 (H) L&C, JUD 3/01/00 (H) L&C AT 3:15 PM CAPITOL 17 3/01/00 (H) Moved Out of Committee 3/01/00 (H) MINUTE(L&C) 3/03/00 2389 (H) L&C RPT 2DP 2NR 3/03/00 2389 (H) DP: HARRIS, ROKEBERG; NR: MURKOWSKI, 3/03/00 2389 (H) HALCRO 3/03/00 2389 (H) ZERO FISCAL NOTE (LAW) 3/22/00 (H) JUD AT 1:00 PM CAPITOL 120 3/22/00 (H) Heard & Held 3/22/00 (H) MINUTE(JUD) 3/29/00 (H) JUD AT 1:00 PM CAPITOL 120 BILL: HB 392 SHORT TITLE: CONTINUANCES OF CINA HEARINGS Jrn-Date Jrn-Page Action 2/16/00 2216 (H) READ THE FIRST TIME - REFERRALS 2/16/00 2216 (H) HES, JUD 2/29/00 (H) HES AT 3:00 PM CAPITOL 106 2/29/00 (H) Moved CSHB 392(HES) Out of Committee 2/29/00 (H) MINUTE(HES) 3/01/00 2376 (H) COSPONSOR(S): DYSON 3/03/00 2392 (H) HES RPT CS(HES) NT 4DP 1NR 3/03/00 2392 (H) DP: DYSON, COGHILL, WHITAKER, KEMPLEN; 3/03/00 2392 (H) NR: BRICE 3/03/00 2392 (H) 2 ZERO FISCAL NOTES (LAW, DHSS) 3/29/00 (H) JUD AT 1:00 PM CAPITOL 120 BILL: HB 292 SHORT TITLE: DISCLOSURE OF CRIMINAL HISTORY RECORDS Jrn-Date Jrn-Page Action 1/21/00 1954 (H) READ THE FIRST TIME - REFERRALS 1/21/00 1954 (H) STA, JUD 1/21/00 1955 (H) ZERO FISCAL NOTE (DPS) 1/21/00 1955 (H) GOVERNOR'S TRANSMITTAL LETTER 2/22/00 (H) STA AT 8:00 AM CAPITOL 102 2/22/00 (H) Scheduled But Not Heard 2/29/00 (H) STA AT 8:00 AM CAPITOL 102 2/29/00 (H) Scheduled But Not Heard 3/02/00 (H) STA AT 8:00 AM CAPITOL 102 3/02/00 (H) Scheduled But Not Heard 3/07/00 (H) STA AT 8:00 AM CAPITOL 102 3/07/00 (H) Heard & Held 3/07/00 (H) MINUTE(STA) 3/09/00 (H) STA AT 8:00 AM CAPITOL 102 3/09/00 (H) Heard & Held 3/09/00 (H) MINUTE(STA) 3/16/00 (H) STA AT 8:00 AM CAPITOL 102 3/16/00 (H) Moved Out of Committee 3/16/00 (H) MINUTE(STA) 3/16/00 2566 (H) STA RPT 1DP 4NR 3/16/00 2566 (H) DP: JAMES; NR: SMALLEY, KERTTULA, 3/16/00 2566 (H) HUDSON, WHITAKER 3/16/00 2566 (H) ZERO FISCAL NOTE (DPS) 1/21/00 3/16/00 2566 (H) REFERRED TO JUDICIARY 3/29/00 (H) JUD AT 1:00 PM CAPITOL 120 BILL: HB 294 SHORT TITLE: DNA TESTING & REGISTRATION Jrn-Date Jrn-Page Action 1/21/00 1958 (H) READ THE FIRST TIME - REFERRALS 1/21/00 1958 (H) JUD, FIN 1/21/00 1958 (H) INDETERMINATE FISCAL NOTE (ADM) 1/21/00 1958 (H) ZERO FISCAL NOTE (DPS) 1/21/00 1958 (H) GOVERNOR'S TRANSMITTAL LETTER 1/21/00 1958 (H) REFERRED TO JUDICIARY 3/29/00 (H) JUD AT 1:00 PM CAPITOL 120 WITNESS REGISTER JOHN MANLY, Staff to Representative John Harris Alaska State Legislature Capitol Building, Room 110 Juneau, Alaska 99801 POSITION STATEMENT: Presented HB 398 and HB 369 on behalf of the sponsor. JOHN GEORGE, Lobbyist for American Council of Life Insurers 3328 Fritz Cove Road Juneau, Alaska 99801 POSITION STATEMENT: Testified on HB 398. ROBERT SWEENEY, Representative American Council of Life Insurers (Address not provided) Washington, D.C. POSITION STATEMENT: Testified on HB 398. STAN RIDGEWAY, Deputy Director Division of Insurance Department of Community & Economic Development P.O. Box 110805 Juneau, Alaska 99811-0805 POSITION STATEMENT: Testified on HB 398. CHRIS MILLER, Research & Analysis Central Office Division of Administrative Services Department of Labor & Workforce Development P.O. Box 21149 Juneau, Alaska 99802-1149 POSITION STATEMENT: Testified on HB 369. REPRESENTATIVE JIM WHITAKER Alaska State Legislature Capitol Building, Room 13 Juneau, Alaska 99801 POSITION STATEMENT: Sponsor of HB 392. BLAIR McCUNE, Deputy Director Central Office Public Defender Agency Department of Administration 900 West 5th Avenue, Suite 200 Anchorage, Alaska 99501-2090 POSITION STATEMENT: Testified on HB 392. KENNETH E. BISCHOFF, Director Central Office Division of Administrative Services Department of Public Safety P.O. Box 111200 Juneau, Alaska 99811-1200 POSITION STATEMENT: Presented HB 292. GLADYS LANGDON, Children Services Manager Anchorage Region Family Services Division of Family & Youth Services Department of Health & Social Services 550 West 8th Avenue, Suite 304 Anchorage, Alaska 99501-3553 POSITION STATEMENT: Testified on HB 292. LINDA KESTERSON, Assistant Attorney General Natural Resources Section Civil Division Department of Law 1031 West 4th Avenue, Suite 200 Anchorage, Alaska 99501 POSITION STATEMENT: Testified on HB 292 in relation to the amendment to include the Alcoholic Beverage Control Board. DOUG GRIFFIN, Director Alcoholic Beverage Control Board 550 West 7th Avenue, Suite 540 Anchorage, Alaska 99501 POSITION STATEMENT: Testified on HB 292 in relation to the amendment to include the Alcoholic Beverage Control Board. DEL SMITH, Deputy Commissioner Office of the Commissioner Department of Public Safety P.O. Box 111200 Juneau, Alaska 99811-1200 POSITION STATEMENT: Presented HB 294. LEANE STRICKLAND, Supervisor Scientific Crime Detection Laboratory Department of Public Safety 5500 East Tudor Road Anchorage, Alaska 99507-1221 POSITION STATEMENT: Testified on HB 294. JOHN McKINNON, Officer Anchorage Police Department 4501 South Bragaw Street Anchorage, Alaska 99507 POSITION STATEMENT: Testified on HB 294. JENNIFER RUDINGER, Executive Director Alaska Civil Liberties Union P.O. Box 201844 Anchorage, Alaska 99520-1844 POSITION STATEMENT: Testified in opposition to HB 294. ROBERT BUTTCANE, Juvenile Probation Officer Youth Corrections Division of Family and Youth Services Department of Health & Social Services P.O. Box 110630 Juneau, Alaska 99811 POSITION STATEMENT: Testified in support of HB 294. CANDACE BROWER, Parole Board Officer Parole Board Division of Community Corrections Department of Corrections P.O. Box 112000 Juneau, Alaska 99811-2000 POSITION STATEMENT: Testified on HB 294. ACTION NARRATIVE TAPE 00-41, SIDE A Number 0001 REPRESENTATIVE JOE GREEN called the House Judiciary Standing Committee meeting to order at 1:20 p.m. Members present at the call to order were Representatives Green, Rokeberg, Murkowski, Croft and Kerttula. No further members arrived after the meeting was called to order. HB 398 - LIFE AND HEALTH INSURANCE GUARANTY ASSN REPRESENTATIVE GREEN announced the first order of business would be HOUSE BILL NO. 398, "An Act relating to the Alaska Life and Health Insurance Guaranty Association." Number 0068 JOHN MANLY, Staff to Representative John Harris, Alaska State Legislature, presented the bill on behalf of the sponsor. At the last committee hearing, testimony had indicated that there was confusion on what the bill does, he noted. Mr. Manly referred to a handout titled "Summary of Principal Changes to the NAIC Life and Health Insurance Guaranty Association Model Act" and indicated it should help explain what the bill does. He turned to Mr. John George to help explain the bill further. Number 0150 JOHN GEORGE, Lobbyist for American Council of Life Insurers, came before the committee to testify. He had spoken on the bill last week, he said, and instead of repeating himself he would prefer that the committee hear from an expert, Mr. Robert Sweeney. He noted that there was a proposed amendment, which is very important for technical reasons. He explained that there was a misinterpretation of the bill drafter going from NAIC [National Association of Insurance Commissioners] model language to Alaska statute language. He said Robert Sweeney had worked hard with NAIC in coming up with the model Act, and had worked hard with the bill sponsor in coming up with the bill. Number 0271 ROBERT SWEENEY, Representative, American Council of Life Insurers, testified via teleconference from an off-net site in Washington, D.C. He referred committee members to the handout referenced above, which explains the concepts set forth in a series of amendments to the NAIC Life and Health Insurance Guaranty Association Model Act, he said, an Act that is very technical and somewhat arcane. MR. SWEENEY noted the following changes to the Act: it facilitated the implementation of guaranty association benefits more promptly and efficiently, thereby providing benefits to policyholders more expeditiously and at a lower cost; it clarified a number of provisions which could foster delay by promoting litigation; and it provided additional benefits to policyholders. Mr. Sweeney said that a further amendment clarified the appropriate coverage limits on equity indexed products, which he indicated is a relatively new innovation in the insurance marketplace. Number 0384 REPRESENTATIVE ERIC CROFT asked Mr. Sweeney whether the amendment clarifies a number of provisions that could foster delay by promoting litigation or clarifies a number of provisions which, if not fixed, could foster delay by promoting litigation. MR. SWEENEY replied that the amendment clarifies a number of provisions that would eliminate frivolous and costly litigation in many areas. Number 0428 REPRESENTATIVE CROFT asked Mr. Sweeney to indicate a few of the policy calls in the bill that might be controversial. He conveyed his understanding that most of what is in the bill is for technical and updating purposes. MR. SWEENEY replied he wouldn't say that anything in the bill is controversial. There are issues in this area that are controversial, but due to some unique Alaska code provisions the amendment does not ask Alaska to adopt certain provisions. For example, Alaska does not have a tax offset for assessments paid into the guaranty association. There are some substantive issues in the bill. The amendment shifts the responsible guaranty association for structured settlement annuities - which are given in a payout after a civil litigation - from the state of residence of the owner to the state of residence of the payee, in order to evenly spread the amounts paid by different state guaranty associations. That same shift would apply to unallocated annuity contracts, which are covered under the Alaska guaranty association statute. The amendments also give the Alaska State Life and Health Insurance Guaranty Association the authority to play an active role in determining how assets are distributed in insolvency, which is entirely appropriate given the fact that they are often the largest creditor involved. The amendments also allow for the state guaranty association to propound a solvency plan. Number 0645 REPRESENTATIVE CROFT asked Mr. Sweeney whether he is right in saying that the main challenge to the life and health guaranty association is the transfer to another person, while in comparison the main challenge to property is to "wrap it up." MR. SWEENEY replied that is a fair characterization. The primary distinction between the property and casualty fund, and the life and health guaranty association is the movement of a block of business to a solvent carrier in order to continue payments to beneficiaries and annuitants. Number 0707 REPRESENTATIVE ROKEBERG noted that there was testimony in the House Labor and Commerce Committee indicating some contention about the use of the word "intervene" on page 13, line 20, of CSHB 398(L&C). He asked Mr. George to discuss the process he went about in dealing with the director of the Division of Insurance [Department of Community & Economic Development] to implement this bill. He said it is important that the committee members understand that the bill has been fully reviewed by the director and that the process was a mutual and balanced effort. Number 0800 MR. GEORGE replied that the NAIC model Act is a product of the National Association of Insurance Commissioners, and has been worked on continually and consistently by all of the states and industry members, for years, in order to come up with a plan that will work generically in all states. It is up to the director or commissioner of each state to get the model Act adopted. In Alaska, there were 21 points of discussion with the Division of Insurance in relation to the NAIC model Act. Of those, 20 points were worked out to where there is complete agreement. He said: [There was] one thing that we agreed not to agree on, and that was when going to court, the bill that was proposed said that the guaranty association could appear in those proceedings. We wanted to add the word, "appear or intervene," or "and intervene." That was the amendment in Labor and Commerce, ... to add "intervene" in a couple of places. Other than the word "to intervene," I believe we have 100 percent agreement with the Division of Insurance on the wording in this bill, and it's not because we started out that way; it's because we worked diligently, and I do give a lot of credit to the Division of Insurance and also the ACLI [American Council of Life Insurers] staff for coming together and coming up with those agreements. The last thing I wanted to do is bring a bill in here with 21 talking points with the Division of Insurance and have those discussions in this committee. Number 0920 REPRESENTATIVE ROKEBERG asked Mr. Sweeney whether the amounts covered by the guaranty association have been revised in the bill in any particular area. MR. SWEENEY replied there were no changes made to the amounts. It was determined by the NAIC that it was not necessary at this time. He noted that there were some increases to the amounts several years ago in the last round of amendments. REPRESENTATIVE ROKEBERG asked Mr. Sweeney whether he was part of the negotiating team for Alaska. MR. SWEENEY replied, "Yes." REPRESENTATIVE ROKEBERG asked Mr. Sweeney to describe any changes made from the NAIC model Act to accommodate the director of the Division of Insurance. MR. SWEENEY explained that there were several instances when he was able to talk to the director and agree to a few points that the division felt were very important. He doesn't have the most recent version of the bill before him, he noted, so he cannot speak further to any other changes. He deferred to Mr. George. MR. GEORGE said he isn't sure that he could point out the changes. REPRESENTATIVE ROKEBERG withdrew his question. He said he'd wanted to make the point that there was active bargaining with the director of the Division of Insurance because he has to implement a substantial part of what is in the bill. Number 1064 REPRESENTATIVE KERTTULA said: This may be a question for Mr. Ridgeway [Deputy Director, Division of Insurance, Department of Community & Economic Development], but in looking at the legislation it looks like there's a number of exemptions to ... the coverage. And, I'm looking at page 4 of the bill, and so, again, it may be better to Mr. Ridgeway. But it looks like if a person who normally would be covered has any coverage by an association of another state, they're exempted from coverage here, and I just wondered why it's any coverage and it's not drafted to be the part of the coverage that is provided by the other association. ... I just wondered if there might be circumstances where another association gave half the coverage but not all the coverage. Number 1114 MR. SWEENEY replied that the provision is inserted purely to avoid instances of duplicate coverage, in order to defray the Alaska Life and Health Guaranty Association of potentially paying a covered individual or entity when another state is already covering that individual or entity. Number 1162 REPRESENTATIVE KERTTULA said she can understand that. She specified that she was troubled by the word "any." There seems to be a distinction between those who receive partial coverage, she said. The language reads, "that part of an unallocated annuity contract that is not issued ...." MR. SWEENEY replied that the word "any" is not intended to be misleading; it is meant to get at the very situation he had described earlier. It is not meant to [imply] that a person would not receive coverage in one state. Number 1216 REPRESENTATIVE KERTTULA asked Mr. Sweeney whether the removal of the word "any" would damage the bill. She suggested the word "complete" instead. REPRESENTATIVE GREEN responded: I would have a bit of a problem with that because if, then, you say "coverage," then you add one of ten pieces covered. Would that suffice under here, as opposed to, say, 30 percent or ...? ...I think that's what I'm reading "any" to mean, but that may not be in fact what it is. MR. SWEENEY said he thinks that Representative Green is correct. Number 1272 REPRESENTATIVE KERTTULA asked Representative Green whether he likes the word "any" better than the word "complete." REPRESENTATIVE GREEN replied that he isn't sure. He just doesn't want to remove the word "any." Number 1338 STAN RIDGEWAY, Deputy Director, Division of Insurance, Department of Community & Economic Development, came before the committee to testify. As Mr. George has indicated, there were 21 points of discussion and 20 points were agreed on. The division supports the bill. In response to Representative Kerttula's question, he said he doesn't have an answer; he would do some research and get back to her. It is his understanding, however, that the language was taken directly from the NAIC model Act. He thinks that there is a reason for the word "any" instead of the word "complete." Number 1375 REPRESENTATIVE ROKEBERG stated that there are different types of coverage, and the word "any" is appropriate. He doesn't have a problem with it. REPRESENTATIVE ROKEBERG asked Mr. Ridgeway whether he is aware of the proposed amendment in relation to the determination of the principal place of business. MR. RIDGEWAY affirmed that. REPRESENTATIVE ROKEBERG asked Mr. Ridgeway whether the Department of Community & Economic Development has a problem with the proposed amendment. MR. RIDGEWAY replied, "No." Number 1410 REPRESENTATIVE GREEN, noting that there were no further testifiers, closed the hearing to public testimony. Number 1415 REPRESENTATIVE ROKEBERG made a motion to adopt Amendment 1, version 1-LS1376\I.2, Ford, 3/22/00. There being no objection, Amendment 1 was adopted. It read as follows: Page 3, line 9, following "chapter": Insert ", whichever occurs first" Page 27, line 20, through page 28, line 12: Delete all material and insert: "Sec. 21.79.170. Determination of principal place of business. The principal place of business of a plan sponsor consisting of (1) a single employer or an employee organization is that state in which the plan sponsor exercises the direction, control, and coordination of the operations of the entity, as determined by the association in its reasonable judgment by considering the following factors: (A) the state in which the primary executive and administrative headquarters of the entity are located; (B) the state in which the principal office of the chief executive officer of the entity is located; (C) the state in which the board of directors or a similar governing body of the entity conducts the majority of its meetings; (D) the state in which the executive or management committee of the board of directors or a similar governing body of the entity conducts the majority of its meetings: (E) the state from which the management of the overall operations of the entity is directed; and (F) in the case of a benefit plan sponsored by affiliated companies making up a consolidated corporation, the state in which the holding company or controlling affiliate has its principal place of business as determined using the factors described in (A) - (E) of this paragraph; however, if more than 50 percent of the participants in the benefit plan are employed in a single state, that state is considered to be the principal place of business of a plan sponsor that is a single employer or an employee organization; (2) two or more employers or employee organizations is that state in which the employers or employee organizations have the largest investment in the benefit plan." Number 1436 REPRESENTATIVE ROKEBERG made a motion to move CSHB 398(L&C), version 1-LS1376\I, as amended, out of committee with individual recommendations and attached zero fiscal notes. REPRESENTATIVE GREEN stated: The concern I would have with that, then, is if Mr. Ridgeway comes back with something, even though that is you say the word in the model bill [is], "any". Is there any concern among any of the members of the committee that they would like to know for sure that ... that takes care of our concerns, our mutual concerns? REPRESENTATIVE KERTTULA replied that if the chairman of the House Labor and Commerce Committee [Representative Rokeberg] agrees that there is a problem, then it can be taken care of on the floor of the House of Representatives. REPRESENTATIVE ROKEBERG indicated that he wouldn't object, if there is a problem. REPRESENTATIVE GREEN asked whether there was any objection to moving the bill out of committee. There being none, CSHB 398(JUD), moved from the House Judiciary Standing Committee. HB 369 - PROPERTY EXEMPTIONS REPRESENTATIVE GREEN announced the next order of business would be HOUSE BILL NO. 369, "An Act relating to property exemptions under the Alaska Exemptions Act; and providing for an effective date." Number 1530 JOHN MANLY, Staff to Representative John Harris, Alaska State Legislature, came before the committee on behalf of the sponsor. He informed members that there were two proposed committee substitutes [Version H, 1-LS1266\H, and Version I, 1-LS1266\I]. One version [Version I] retains the indexing for monetary provisions in relation to the Consumer Price Index (CPI). The other version [Version H] completely deletes the indexing provision in relation to the CPI. He noted that Chris Miller of the Department of Labor & Workforce Development was present to speak to the indexing process and why the legislature changes it as much as it does. Number 1583 REPRESENTATIVE ROKEBERG asked Mr. Manly to indicate which proposed committee substitute (CS) was preferred by the sponsor, by Mr. Greer - "father" of the bill - and the Department of Labor & Workforce Development. MR. MANLY replied that Mr. Greer had not expressed a preference in relation to the indexing provision. The provision was inserted into the original bill by the legal drafter [Terry Bannister, Attorney, Legislative Counsel, Legislative Legal and Research Services, Legislative Affairs Agency] because she felt that it needed attention. The sponsor has indicated that he is willing to support what the Department of Labor & Workforce Development prefers. Number 1656 CHRIS MILLER, Research & Analysis, Central Office, Division of Administrative Services, Department of Labor & Workforce Development, came before the committee to testify. He indicated that the department would prefer to get out of the business of indexing. REPRESENTATIVE ROKEBERG responded that he doesn't have a problem with the department getting out of the business of indexing. He would, however, defer to the members of the committee and the legal profession as to whether they want to continue updating the index. He doesn't like indexing himself, he added. Number 1721 REPRESENTATIVE CROFT stated his belief that the indexing provision ought to be deleted. He also thinks that the figure of $250,000 is "close," contrary to those who have indicated that it is high. He would prefer that the legislature periodically update the index in statute rather than to have the Department of Labor & Workforce Development automatically update it. In that way, a person can read the statute and understand the value of the index. Right now, $54,000, the value referred to in statute, doesn't mean $54,000; it means something else that a person has to figure out. REPRESENTATIVE ROKEBERG interjected that a person has to wait until October for the department to compute the value of the index. Number 1770 REPRESENTATIVE CROFT made a motion to adopt as a work draft the proposed CS for HB 369, Version H [1-LS1266\H, Bannister, 3/27/00]. There being no objection, Version H was before the committee. Number 1782 REPRESENTATIVE GREEN asked Mr. Miller how the figure of $250,000 compares with other states. MR. MILLER replied that he doesn't know; he has not done a comparison of other states but has only looked at the figure in relation to the rest of the state. MR. MANLY said that testimony has indicated that a number of states do not have a limit. REPRESENTATIVE GREEN asked Mr. Manly whether it is a reasonable number. MR. MANLY replied that he would classify it as a reasonable number. REPRESENTATIVE ROKEBERG noted, for the record, that the committee has received a couple of letters indicating that a joint exemption equates to a half million dollars for a spousal combination. Number 1830 REPRESENTATIVE ROKEBERG made a motion to move CSHB 369, Version H [1-LS1266\H, Bannister, 3/27/00], out of committee with individual recommendations and attached zero fiscal note. There being no objection, CSHB 369(JUD) moved from the House Judiciary Standing Committee. HB 392 - CONTINUANCES OF CINA HEARINGS REPRESENTATIVE GREEN announced the next order of business would be HOUSE BILL NO. 392, "An Act relating to continuances for temporary placement hearings that follow emergency custody of a minor; and amending Rule 10, Alaska Child in Need of Aid Rules." The committee would be taking up CSHB 392(HES), version 1-LS1224\G. Number 1881 REPRESENTATIVE JIM WHITAKER, Alaska State Legislature, came before the committee as sponsor of the bill. He was joined at the table with staff, Lori Backes. This bill, he said, is relatively simple. The single largest complaint that his office receives is from parents or guardians in relation to the lack of time to understand the circumstances surrounding the 48-hour hearing, which determines whether a child is a "child in need of aid" (CINA). Yet there is a provision in statute for judges to explain the circumstances to those involved, but it has not worked as well as hoped. This bill, therefore, makes it very clear that a judge must explain to parents and/or guardians that they have the right to request a continuance. This is in no way an attempt to circumvent the efforts of the Division of Family and Youth Services [Department of Health & Social Services]. This is merely an assertion of the rights of parents and guardians to understand their rights, to give them time to think, and to get their act together. Number 1950 REPRESENTATIVE CROFT noted that the emergency custody provision remains intact. In that way, a parent or guardian would not get a child back during this period of time. REPRESENTATIVE WHITAKER affirmed that. Number 1961 REPRESENTATIVE ROKEBERG stated that the bill mandates that the hearing officer grant a continuance, but there don't seem to be any limitations placed on a continuance. How would that be handled? REPRESENTATIVE WHITAKER replied that the seven-day stipulation was removed in the House Health, Education and Social Services Committee because there is a need for leeway on the part of the hearing officer or judge. In that way, a hearing officer or judge could grant a limited continuance or a series of continuances. REPRESENTATIVE ROKEBERG asked Representative Whitaker whether these types of hearings typically take place in a court or before a hearing officer. REPRESENTATIVE WHITAKER replied, according to his understanding, that a hearing officer is used in most cases. Number 2030 REPRESENTATIVE ROKEBERG asked Representative Whitaker whether it is correct to say that a hearing officer "becomes the court" by way of statutory construction of the bill. REPRESENTATIVE WHITAKER replied that he doesn't believe that it changes the statute in that regard. He pointed out that the bill does not require a continuance. It simply requires that the hearing officer and/or judge inform the parent or guardian of the right to request a continuance. Upon a request, the hearing officer or judge then makes a determination as to whether it is a valid request. REPRESENTATIVE ROKEBERG asked Representative Whitaker whether a judge would have the discretion to set a follow-up hearing, for example. REPRESENTATIVE WHITAKER replied the hearing officer and/or judge would make a determination on whether or not to grant a continuance. REPRESENTATIVE ROKEBERG asked Representative Whitaker what happens after the granting of a continuance. REPRESENTATIVE WHITAKER replied that a time stipulation is placed on a continuance at the time it is granted. The bill is not an attempt to endlessly draw out the process. Judicial discretion is maintained. REPRESENTATIVE ROKEBERG commented that he is concerned about the practical implications of the bill in relation to the judicial process. Number 2108 REPRESENTATIVE GREEN asked Representative Whitaker whether the removal of the seven-day continuance was to allow for whatever might need to be done. He posed a scenario: "I'm a bad guy. I've been bad to my kids and I can't correct that in seven days, but, maybe, I can go to some sort of a head-knock session, and in 14 days I'll be clean." REPRESENTATIVE WHITAKER replied no, that was not the intent. The single largest complaint that he hears from individuals in these circumstances is that 48 hours isn't enough time to get over the confusion, anger and panic of what to do when the state takes action to protect the safety of a child. Generally speaking, these individuals are not in the most comfortable of situations, and this is a very rude awakening. The bill allows for these individuals to go to court and ask for a little time to get their act together. The bill requires that the court advise the parent or guardian of the right to request a continuance. In most cases, he noted, the individuals are not aware of the specific charges until the hearing. He also noted that these are individuals who are somewhat disenchanted with the so-called system to begin with, so this is a chance to extend an open hand to give them time to think. Number 2216 REPRESENTATIVE GREEN asked Representative Whitaker whether there is an upper limit for an extension. REPRESENTATIVE WHITAKER replied that it is fair to say that judicial discretion will rule the day. REPRESENTATIVE GREEN opened the meeting to public testimony. Number 2248 BLAIR McCUNE, Deputy Director, Central Office, Public Defender Agency, Department of Administration, testified via teleconference from Anchorage. The agency supports the bill, he told members. A lot of what is set out in the bill is "kind of" done in practice now in the Anchorage courts and in most other areas throughout the state. A parent will come in, he explained, and want to have an attorney appointed to help the parent through the 48-hour temporary custody hearing. That is what allows the agency to get involved with the case. MR. McCUNE noted that in actuality continuances are for a few days, and are used to look at medical records, for example. Generally, a continuance is granted for about a day or at the most two days. In CINA cases, he explained, there is the initial 48-hour hearing and then an adjudication hearing, which is about 120 days later. It is important, therefore, for parents to understand where they are going and what needs to be done. He commented that this issue was discussed in detail in the House Health, Education and Social Services Committee, at which time it was decided not to put strict time limits on a continuance in order to allow for a lot of judicial discretion. Number 2354 REPRESENTATIVE GREEN asked Mr. McCune whether he was saying that removing the seven-day limit is really just an extension of a few days rather than an opened-ended limit. MR. McCUNE affirmed that. He said it is extremely rare to get as much as a seven-day continuance. Leeway is important because some cases might involve medical testimony, which requires checking the medical records and consulting with the family doctor. Those types of cases are rare, but they might require a ten-day continuance rather than a seven-day continuance, for example. It just didn't seem right, he said, to include a strict time limit. Normally, after reviewing the case, it is often decided that a family should stipulate temporary custody, especially in the case of serious abuse. The time is then spent trying to fix the problems. Number 2417 REPRESENTATIVE ROKEBERG pointed out that there isn't a fiscal note from the Public Defender Agency. He asked Mr. McCune whether it is typical for a public defender to be available at a 48-hour hearing or if one has to be contacted by the parents or guardians for counseling. MR. McCUNE said that is a good question. There is a bill, which recently passed the House of Representatives and is now in the Senate, that lets the Public Defender Agency get involved earlier in the process without an official appointment by the court. As it stands now, a parent or guardian goes through a financial screening before a court issues an order to appoint a public defender to the case. Mr. McCune further stated that there is a zero fiscal note from the Public Defender Agency because the language reads "may" be represented by the Public Defender Agency, which allows for some leeway. He reiterated that the bill codifies current practices, particularly in Anchorage, where about a half of the CINA cases are located. In most other areas of the state, the practice is to have a shortened continuance in order to talk to the parent or guardian to determine whether further investigation is needed. The agency doesn't expect much fiscal impact as a result of the bill. TAPE 00-41, SIDE B Number 0001 REPRESENTATIVE GREEN indicated that he is willing to take Mr. McCune's verbal input in relation to the zero fiscal note, but that it might help to submit one. He asked Mr. McCune whether a continuance would help to present a better case and more thorough review in the arena of fairness. MR. McCUNE affirmed that, adding that it would allow for the parent or guardian to consult with a lawyer, and it would expedite the process in a way. For example, the department wouldn't have to "put out" proof if probable cause is stipulated, which could save the court time and resources. REPRESENTATIVE GREEN, noting that there were no further testifiers, closed the meeting to public testimony. Number 0085 REPRESENTATIVE KERTTULA made a motion to move CSHB 392(HES), version 1-LS1224\G, out of committee with individual recommendations and attached fiscal notes. There being no objection, CSHB 392(HES) moved from the House Judiciary Standing Committee. HB 292 - DISCLOSURE OF CRIMINAL HISTORY RECORDS REPRESENTATIVE GREEN announced the next order of business would be HOUSE BILL NO. 292, "An Act adopting the National Crime Prevention and Privacy Compact; making criminal justice information available to interested persons and criminal history record information available to the public; making certain conforming amendments; and providing for an effective date." Number 0101 KENNETH E. BISCHOFF, Director, Central Office, Division of Administrative Services, Department of Public Safety (DPS), came before the committee to present the bill. The primary purpose of the bill is to adopt a national compact [the National Crime Prevention and Privacy Compact], which deals with criminal history record background checks. Over the years, the legislature has passed a number of statutes mandating background checks for employment and licensing purposes. He cited teachers, school bus drivers, and assisted living homes as examples. MR. BISCHOFF said that every state in the nation deals with the same issue when it comes to doing a national criminal history background check for these types of occupations. The presumption is that once it is important enough for the legislature to pass a law, the DPS should use the best information available. A national compact would allow the department to have access to more timely and complete criminal history records of other states. In order to do that, every state needs to agree to a common set of rules by which to exchange information. The adoption of this compact would do just that. Mr. Bischoff encouraged the committee members to support the bill. He noted that the department had submitted an amendment [Amendment 1] that would allow the Alcoholic Beverage Control Board to do a national background check on their licensed applicants. REPRESENTATIVE GREEN asked Mr. Bischoff what the compact will provide. MR. BISCHOFF replied there will be a national pointer system established as each state comes online at the FBI [Federal Bureau of Investigation] for civil purposes. The pointer system will establish a unique federal identification number that will indicate which states have information on a particular individual. It will allow the department to electronically query the system and go directly to each state to get background information. Number 0231 REPRESENTATIVE GREEN asked Mr. Bischoff how this can be done with a zero fiscal note. MR. BISCHOFF replied that as the system develops, there will be an additional workload, but the trade-off is that for every arrest, each state is required to send a duplicate set of fingerprints to the FBI. Under this system, a first-time arrest card will be sent only once. And once a federal identification number has been established, the department will not have to send any future cards because they will be able to make an identification locally and update the record accordingly. He noted that it costs about $30,000 for criminal arrest cards a year. Number 0278 REPRESENTATIVE GREEN asked Mr. Bischoff whether the department gets a lot of "hits" now from other states for information. MR. BISCHOFF replied that about two years ago the legislature appropriated money to the DPS to upgrade their fingerprinting system, which allowed them to combine their system with those of six other western states. After the first year of operation and searching the database, approximately 75 percent of the identifications were made using other states' records. Number 0314 REPRESENTATIVE GREEN noted that earlier in the session it was suggested that Alaska might become a member of an interstate parole-type compact, but the idea fell on deaf ears. He asked Mr. Bischoff how this compact is different. MR. BISCHOFF replied that even though this is a national compact, all 50 states had participated in drafting the language, getting it through the President's office and submitting it to Congress for adoption. Furthermore, the mechanics of this system already exist for law enforcement purposes, and it is being used by all 50 states now. The compact puts in place the rules to allow it to be used uniformly for civil purposes. Number 0401 REPRESENTATIVE KERTTULA asked Mr. Bischoff to expand on what type of information an agency or employer would get with the inclusion of arrest information without court dispositions and information beyond the ten-year unconditional discharge date. MR. BISCHOFF explained that several years back, with the help of the legislature, the department completely updated AS 12.62 by including model language from national groups. The term "unconditional discharge date" is a fairly common term, but in Alaska it is a very difficult date to calculate. He noted that the Department of Corrections manually calculates the date and is moving towards automating the calculation with their new computer system. The reason for the change is because the state conducts 20,000 fingerprint-based applicant checks a year for employment and licensing purposes, and the department would have to submit a major fiscal note - and the process would slow down - if they couldn't just give the regulatory agencies or authorized employers the complete record. Number 0465 REPRESENTATIVE KERTTULA asked Mr. Bischoff to explain what "unconditional discharge" would indicate to someone requesting this type of information. MR. BISCHOFF replied that unconditional discharge means that a person has served his incarceration time, is released on probation or parole, and is being monitored. It would indicate the date that the person no longer has to report to a probation officer. He reiterated that calculating the date is not a straightforward process. Number 0501 REPRESENTATIVE KERTTULA stated concern that it might mean that after a period of time the record is gone, similar to a suspended imposition. She asked Mr. Bischoff to explain the kinds of arrest information. MR. BISCHOFF replied that Section 3 of the bill updates the list of what is considered a serious offense. REPRESENTATIVE KERTTULA asked Mr. Bischoff whether a description about an arrest is included, such as information on a mistaken arrest. MR. BISCHOFF replied that the criminal history report would include the arrest card, the arresting agency, and the results of the fingerprint search. The system currently does not include information from the prosecutor, so it usually requires a court disposition to update the record indicating innocence or guilt. The nature of information that a regulatory or employer needs varies. When it comes to dealing with children, for example, a person may have four or five arrests but no convictions, which is information that may be very helpful to the Division of Family & Youth Services; setting a filter that denies them that type of information is not good public policy. The department would prefer to put the burden on the regulatory agency to decide what is relevant information because it is truly their decision. Moreover, he doesn't think that it is appropriate for his staff to make policy decisions for regulatory agencies. Number 0627 REPRESENTATIVE KERTTULA asked Ms. Langdon what type of arrest information the Division of Family & Youth Services gets. Number 0651 GLADYS LANGDON, Children Services Manager, Anchorage Region, Family Services, Division of Family & Youth Services, Department of Health & Social Services, came before the committee to answer Representative Kerttula's question. The division gets an arrest record and can get a criminal history. It is very important that they have access to the complete record, even beyond the ten-year period. She also noted that federal funding is dependent upon the division having access to these types of records. Number 0670 REPRESENTATIVE KERTTULA stated, then, that it is the division's job to figure out if the arrests indicate anything or not. She asked Ms. Langdon whether she has seen circumstances where it was just an arrest that kept a person from being able to get a license. MS. LANGDON replied no. Number 0691 REPRESENTATIVE GREEN asked Mr. Bischoff how the department knows who needs a record check. Is it just for the employer who wants to know about a particular person? MR. BISCHOFF replied that the legislature has established which regulatory agencies need a background check. The department lets the regulatory agencies drive the request process, which equates to 20,000 [requests] a year. The department first searches their records, and any qualifying offense is communicated to the regulatory agency. If they don't get an identification, they then ship the request to the FBI via the mail. When the system is updated, he noted, the request will be sent via an electronic transfer, which will allow for a quicker turnaround time. REPRESENTATIVE GREEN asked Mr. Bischoff whether there is a charge. MR. BISCHOFF replied yes, there is a $35 in-state charge, and the FBI charges $24 for a national check. REPRESENTATIVE GREEN commented that it is self-funding. Number 0778 REPRESENTATIVE ROKEBERG asked Mr. Bischoff whether this is the system that state employees had accessed a couple of years ago, which had created some controversy. MR. BISCHOFF replied that there was controversy surrounding the use of the Alaska Public Safety Information Network, which is interfaced to the national system. The bill, he noted, deals with the national system. REPRESENTATIVE ROKEBERG asked Mr. Bischoff whether there is a separation between the two. MR. BISCHOFF replied, "Yes." REPRESENTATIVE ROKEBERG asked Mr. Bischoff whether he can assure the committee members the abuses that may have taken place before will not take place again. MR. BISCHOFF replied that his staff, as a result of the controversy, has implemented a whole host of edits, to notify security if certain records are run against certain public officials. An audit function has also been implemented. There is no way, however, that he can guarantee 100 percent that this will never occur again. But there are better tools to work with and a keener sensitivity of the issue now. Number 0837 REPRESENTATIVE ROKEBERG asked Mr. Bischoff whether any of the agencies can get into that information. MR. BISCHOFF replied that the only way a person can query the compact for information is if there is a set of fingerprints, and the applicant has to agree to a set of fingerprints. The only authorized agency in the state to run a check is the Criminal Investigations Unit [DPS] in Anchorage. In other words, there won't be 22,000 users querying the system for this type of information. REPRESENTATIVE ROKEBERG surmised that it is [Mr. Bischoff's] staff that does the work for these agencies that have justified their request. MR. BISCHOFF affirmed that. REPRESENTATIVE GREEN indicated that, in itself, should make a major difference. REPRESENTATIVE ROKEBERG asked Mr. Bischoff how this system will interface with the court's computer system. It is his understanding that the court system has an antiquated computer system, he added. MR. BISCHOFF replied that the DPS speaks in favor of the capital request from the court system to update their computer system. Currently, he explained, that the DPS receives court dispositions in the mail and manually enters the information. Once the court system is automated the information will be transferred electronically. He further explained that when an individual is booked by the Department of Corrections and fingerprinted using a live scan machine, the information is sent to the DPS, at which time staff processes the information through the Western Identification Network to verify the person's identity. Upon identification, staff updates the person's criminal history record in the Alaska Public Safety Information Network, and if it is a criteria offense, staff updates the national FBI system. REPRESENTATIVE ROKEBERG stated that the courts are not hooked up electronically. MR. BISCHOFF concurred. Number 0971 REPRESENTATIVE LISA MURKOWSKI commented that according to her understanding there are only a few states that have signed on to the compact. She asked Mr. Bischoff what would happen if the other states do not sign on to the idea. As she understands, it is just an exchange of information between those states who have access to the compact, she added. MR. BISCHOFF replied that the information from the 50 states that the FBI has converted would be available through the system. The states that do not adopt the compact would continue to send cards to the FBI, and that information would be available through the system. But, as more and more states join in the compact, Alaska would have access to records that are not forwarded to the FBI. He cited that as much as 40 percent of the criminal history records for the state of Oregon are not indexed with the FBI, so when they sign up for the compact Alaska would have access to those records. Oregon, he noted, is part of the Western Identification Network, a consortium of seven western states and a reason why Alaska gets a 75-percent hit rate on out-of-state records. He also said many drunk driving offenses in California are fingerprinted but not forwarded to the FBI, so when they sign up for the compact, Alaska would have access to those records. He noted that four states have adopted the compact, six states are going through the process of adopting the compact, and many states are considering going through the process next year. He hopes that in about five to six years a majority of the states would be onboard. Number 1110 REPRESENTATIVE MURKOWSKI asked Mr. Bischoff whether Alaska would still have access to certain information from a state that does not sign on to the compact. In that way, there is still a networking system that does not go away. MR. BISCHOFF answered, "Correct." Number 1129 REPRESENTATIVE GREEN asked Mr. Bischoff whether the states that sign on to the compact would go directly to Alaska for information, while the rest of the states that do not sign on to the compact would go through the FBI. MR. BISCHOFF affirmed that. Number 1145 REPRESENTATIVE MURKOWSKI asked Mr. Bischoff whether there is any financial incentive for the states to sign on to the compact. MR. BISCHOFF replied that there is a trade-off to signing on to the compact. The department has submitted a zero fiscal note because even though there would be additional work, the system would reduce the number of fingerprint cards that would have to be forwarded to the FBI. The department believes that it would be a "wash." Number 1200 LINDA KESTERSON, Assistant Attorney General, Natural Resources Section, Civil Division, Department of Law, testified via teleconference from Anchorage in relation to the amendment to include the Alcoholic Beverage Control Board. The compact, she said, recognizes that there are non-criminal reasons for a criminal background check, and that there are a number of governmental entities that have the ability in statute to collect that type of information, as Mr. Bischoff has indicated. The federal law specifically requires that there is a state statute authorizing these types of national background check. The amendment, therefore, would change Title 4 to give the Alcoholic Beverage Control Board the authority to require an applicant to submit a fingerprint, which would then be submitted to the DPS for a criminal background check. Without that, she said, the board can only conduct an Alaska criminal background check, which eliminates a lot of useful information to the board in determining whether or not an applicant is a proper applicant for a liquor license. Number 1319 DOUG GRIFFIN, Director, Alcoholic Beverage Control Board, testified via teleconference from Anchorage in support of the amendment to include the Alcoholic Beverage Control Board. This is a very high priority for the board. It is deemed as a good step in preventing a problem of somebody holding a liquor license who has a criminal background. The board may not be aware of someone's criminal background given the present system. It makes sense for an efficient government, for it's a lot more expensive to try and remediate a problem with a licensee with a criminal background who shows irresponsibility in running his business than it is to prevent a problem. The board hopes that the amendment is adopted and that the bill moves forward. Number 1380 REPRESENTATIVE KERTTULA asked what kind of authority the board has now before issuing a liquor license. Can the board look at arrests? How does the board screen out information that the board doesn't have authority to review? MR. GRIFFIN replied this is for non-criminal purpose. The issuance of a liquor license. The board has some authority to use the database when dealing with a criminal investigation, which is not all that often. For non-criminal purposes, the board has been submitting fingerprint cards to the DPS who then reviews them for any criminal conviction within the state. That information is forwarded to the board for consideration, and the applicant is given an opportunity to discuss the information with the board in an executive session. The information is treated as confidential. Number 1490 REPRESENTATIVE KERTTULA stated that it seems that the language in the amendment is giving the board broad authority. It reads, "The board shall use the information obtained under this section in its determination of the suitability for licensure of the person filing or executing the application." MS. KESTERSON said the statute entitles the board to gather background information in determining whether it is appropriate for a person to hold a liquor license. Specifically, AS 04.11.260 indicates that [an applicant must include] any other information required for the board. And AS 04.11.300 indicates that the state troopers shall assist the director in the investigation of applicants for new licenses and applicants for the transfer of existing licenses before the applications are considered by the board. The policy has always been to conduct background checks on applicants. However, the way the law is written now, in order to get any criminal background records from any state other than Alaska there has to be specific authority in statute, which is what the amendment is meant to do. She further asserted that the Alcoholic Beverage Control Board is the type of entity that should be entitled to criminal background information in order to determine whether or not a person should hold a liquor license. REPRESENTATIVE GREEN, noting that there were no further testifiers, closed the meeting to public testimony. Number 1670 REPRESENTATIVE ROKEBERG made a motion to adopt Amendment 1. There being no objection, Amendment 1 was adopted. It read as follows: Page 1, line 3, following "public;" Insert "providing for the use of criminal justice information and records by the Alcoholic Beverage Control Board;" Page 1, following line 5: Insert a new bill section to read: "*Section 1. AS 04.06 is amended by adding a new section to read: Sec. 04.06.095. Criminal justice information and records. (a) The board shall require a person filing or executing an application for the issuance, renewal, or transfer of a license under this title to be fingerprinted. The board shall submit the fingerprints to the Department of Public Safety to obtain a report of criminal justice information under AS 12.62 and a national criminal history record check. The Department of Public Safety is authorized to submit the fingerprints to the Federal Bureau of Investigation for a national criminal history record check. The board shall use the information obtained under this section in its determination of the suitability for licensure of the person filing or executing the application. (b) In this section, "criminal justice information" has the meaning given in AS 12.62.900." Renumber the following bill sections accordingly. Page 16. Following line 20: Insert new bill sections to read: "*Sec. 9. TRANSITION: PENDING APPLICATIONS UNDER AS 04. Notwithstanding AS 04.06.095, enacted by sec. 1 of this Act, the Alcoholic Beverage Control Board may process an application for a license under AS 04 without a national criminal history record check from the Federal Bureau of Investigation if that application was pending with the board on the effective date of sec. 1 of this Act. "Sec. 10. Sections 1 and 9 of this Act take effect immediately under AS 01.10.070(c)." Renumber the following bill section accordingly. Page 16, line 21: Delete "This" Insert "Except as provided in sec. 10 of this Act, this" Number 1690 REPRESENTATIVE KERTTULA made a motion to move HB 292, version 1-GH2014.A, as amended, out of committee with individual recommendations and attached fiscal notes. There being no objection, CSHB 292(JUD) moved from the House Judiciary Standing Committee. HB 294 - DNA TESTING & REGISTRATION REPRESENTATIVE GREEN announced the next order of business would be HOUSE BILL NO. 294, "An Act relating to violations of an order to submit to deoxyribonucleic acid (DNA) testing, to court orders and conditions of parole to collect samples for DNA testing, to removal of material from the DNA identification registration system; and to the collection and processing of samples from certain burglary perpetrators for the DNA identification registration system; and providing for an effective date." Number 1765 DEL SMITH, Deputy Commissioner, Office of the Commissioner, Department of Public Safety (DPS), presented the bill via teleconference from Anchorage. He explained that HB 294 expands a bill passed by the legislature in 1995 that created the DNA [deoxyribonucleic acid] identification registration system. That bill only addressed DNA samples from those convicted of violent crimes against a person and minors 16 years of age, or older adjudicated delinquents for similar crimes. The bill also added methods by which to collect DNA samples. MR. SMITH noted that the DPS has been collecting samples since 1995 and storing them at the crime lab [Scientific Crime Detection Laboratory, DPS] in Anchorage. The department is working hard at storing the information in a database, and has become part of CODIS [Combined DNA Index System]. House Bill 294 expands the collect of DNA samples to include convictions for burglaries. He stressed that the key word is "conviction" because according to research nationwide 52 percent of those convicted of person crimes have been convicted previously, which indicates a crime of opportunity or a continuance of burglar activity. Mr. Smith thinks that it would be good to capture a DNA sample early on for convictions of burglary in the hopes of preventing person crimes later one. The reverse of that is the ability to determine who is not involved in a crime. He noted that Ms. Leane Strickland of the crime lab is present to answer any questions regarding DNA; and that officer John McKinnon of the Anchorage Police Department is also present to answer questions regarding the collection of DNA. MR. SMITH continued. He commented that technology has evolved to the point that a blood sample is not needed for a sample, Instead, a swab of saliva can be taken as a sample. In that way, most anybody can take a sample without any problems involving the proper chain of custody. The bill also expands who could take a sample to include juvenile and adult correctional, probation and parole officers, and peace officers. An increase of who can take a sample would help solve some of the problems over the past five year of obtaining a sample from all who are obligated to under the law. Number 2071 REPRESENTATIVE GREEN asked Mr. Smith whether an officer could take a swab sample. MR. SMITH replied, "Yes." REPRESENTATIVE GREEN asked Mr. Smith whether a swab sample is subject to distortion based on whatever is in a person's mouth. MR. SMITH deferred the question to Ms. Leane Strickland. Number 2109 LEANE STRICKLAND, Supervisor, Scientific Crime Detection Laboratory, Department of Public Safety (DPS), testified via teleconference from Anchorage. Yes, she said, there are some substances that may cause inhibitions when a sample is taken orally. However, the lab has worked over the past three to four years with hundreds and hundreds of oral samples, and there has only been one sample that they were not able to get a DNA profile out of. She said, "Again, any type of sampling that would be inhibited, we would not be getting an incorrect DNA profile, we would just not be getting a DNA profile from the sample." Number 2167 REPRESENTATIVE MURKOWSKI said she is assuming that an oral sample is as simple as taking a Q-tip swab to the saliva and putting it on a test strip. In that way, the results can be taken and processed right there. MS. STRICKLAND replied that a Q-tip swab is used as well as an oral scraper, which is a compacted cotton with serrated edges. Testing, however, is not performed immediately upon receipt of a sample. Testing is performed upon conviction. Number 2224 REPRESENTATIVE MURKOWSKI asked Ms. Strickland whether there could be a problem with the chain of custody, whereby a sample has been taken and a period of time has elapsed so that it's not a correct test. Is an old sample such that it won't register? MS. STRICKLAND replied that the lab is able to get a DNA profile from an old sample. Samples that are hundreds of years old, she said, can show a DNA profile when stored in a dry environment. Samples are stored at the lab in such a way that over extended periods of time they are able to get profiles. Number 2325 MR. SMITH pointed out that a person is obligated by law to give a sample. A sample could therefore be taken again if it is found to be distorted or unreadable. On the same token, a sample that indicated somebody else's profile could be taken again. He said, We're talking about a convicted offender database here. And people that are obligated by law to do it. If you take a sample and the individual said that wasn't me that the officer did then all he or she would have to do is give a DNA sample. We can compare and say something's a foul here and the officer claimed it was somebody else. I mean, there's a number of safeguards here in the DNA process itself. So, if the committee members were concerned about that at all, I just wanted to point that out. Number 2407 REPRESENTATIVE CROFT asked Mr. Smith to explain Section 6 of the bill. [Mr. Smith asked Ms. Strickland about it, and the short reply was cut off by the tape change.] TAPE 00-42, SIDE A Number 0001 JOHN McKINNON, Officer, Anchorage Police Department, testified via teleconference from Anchorage. Section 6, he said, addresses an administrative aspect of the bill in that there isn't a clear mechanism to remove a person's DNA from the registry. Section 6 indicates that a person would have to pursue a court order in order to remove his DNA from the registry. In that way, the Department of Public Safety would not have to continuously determine which person, which sample and which conviction date to manage the information between the court system and the department. This should also prevent the removal of a DNA sample from the registry that was not authorized to be removed, so that if in the future a person committed another crime his sample still remained on the registry. Number 0157 REPRESENTATIVE CROFT said he understands AS 44.41.035(i) and why it is in the bill, but the changes shift the burden from the department to the person who was just declared innocent of a crime. He said: Not only do you have to go through all of the determination to get "not guilty," now, you've got to -you, instead of the government - [have] to take the effort to get your DNA out of the database. And it does seem to me that if we're the person that's falsely accused somebody, we ought to probably have the burden of cleaning up our database on it. Number 0220 MR. SMITH responded that he sees the language in Section 6 as a safeguard. A person found "not guilty" in court can present that information to the crime lab and have his or her DNA removed from the system. He is concerned that a court order not pursued vigorously by a defendant might be inadvertently left in the database. The new language in Section 6 creates a clearer path to get rid of a DNA sample, if it is suppose to be removed from the database. He sees it as an opportunity to ensure that it happens rather than as a creation of more difficulties for a former defendant. Number 0299 OFFICER McKINNON added that when Section 6 was drafted, the idea was to provide a clear path for not only the DPS to carry out their mission but for a person who has a court order to request the removal of his DNA from the registry. It also helps the crime lab feel more comfortable in their procedures. Number 0350 REPRESENTATIVE CROFT said it is a more clear path, but it is at the request of a person. In other words, a request could have come from a lot of sources. For example, the attorney general could ask for a declaratory order to remove the DNA samples at the end of the year for all those who had a conviction reversed. He isn't sure that the changes in Section 6 would allow that to happen now. The language reads, "... upon receipt of a court order issued at the request of a person whose DNA has been collected ...." He asked: Why tie the state to only those types of requests when a court order could come at somebody else's request or even sua sponte? Number 0434 MR. SMITH replied that he understands what Representative Croft is saying, but he's not prepared to deliver an answer. He reiterated that the language is trying to clear a path to ensure that a person's DNA is removed from the registry who has a court order. There may be some inadvertent burden, but that is unintentional. Number 0479 REPRESENTATIVE GREEN suggested the following language: "The Department of Public Safety shall upon the receipt of a court order destroy the material in the system ...." He asked Mr. Smith whether the above suggestion is too big of a cut. MR. SMITH replied that the suggestion sounds reasonable. Number 0485 REPRESENTATIVE KERTTULA pointed out that the original language in statute doesn't require a court order; it puts the requirement on the DPS. She knows what Mr. Smith is saying, but there could be a problem with a lot of people not knowing that they should do this. She asked Mr. Smith whether he would be willing to amend the language as long as the Department of Law agreed to the change. MR. SMITH replied, "Yes." Number 0553 REPRESENTATIVE GREEN said he is concerned that without a court order the DPS may destroy a DNA sample that shouldn't be destroyed. He agrees with Representative Croft in that it puts the burden on the individual. He wondered whether the language "court order" would be a safeguard or whether it would be unnecessary. He said, "At least you've got a court order saying you did it because you had a court order." Number 0607 MS. STRICKLAND said she is concerned about a person who had a conviction overturned at the beginning of the year; and if there is an extended period of time before the crime lab gets a list. In that way, a person's profile would have been searched nationally for that extended period of time. A person's profile could be removed quicker if he has the opportunity to get involved as the bill indicates. REPRESENTATIVE GREEN suggested the following language: "The Department of Public Safety shall upon receipt of a court order or the request of the person whose DNA .... " He explained that the foregoing suggestion does not place a burden on the person, but creates an option for the person to have his sample removed at an earlier time. REPRESENTATIVE CROFT pointed out that the language he had suggested allows for anybody to come to the crime lab and request the removal of his DNA sample. Number 0698 JENNIFER RUDINGER, Executive Director, Alaska Civil Liberties Union [AkCLU], testified via teleconference from Anchorage in opposition to HB 294. She said she was there on behalf of the membership of the AkCLU, which has 850 to 1000 [members] statewide. She was also there on behalf of the committee member's constituents who bombard her office week after week expressing concern of the government's ever increasing control over personal information, such as social security numbers, census information, background checks, and DNA and genetic types of information. The concerns cross ideological and party lines, she said, and many feel that the government has not justified their demand for that type of information. Many also express concern that the government cannot be trusted to keep that type of information confidential or limit its use for the initial purpose for which it was collected. The ACLU agrees with their expressed concerns, for they have seen evidence of this around the country. She read the following: The Alaska Civil Liberties Union opposes HB 294 and respectfully urges the committee to put an end to the progressive expansion of DNA collection by the government. DNA collected from one person not only reveals personal information about that person, much of which has nothing to do with serving the needs of law enforcement, but it also reveals very personal information about everyone related to that person by blood. Unlike fingerprinting, which only reveals information that can be used for identification purposes, DNA gives the government control over a great deal of personal, private information about anyone related to the sample source. Therefore, expansion of the government's power to collect DNA from its citizens - even people convicted of crimes - should not be taken lightly. [House Bill] 294 proposes to invade the privacy of innocent family members, and the government's only justification is that burglars might later commit violent crimes in which they leave DNA evidence at the scene. Initially, DNA storehouses were created to house information about convicted sex offenders exclusively. The argument was that sex offenders were especially prone to recidivism. They typically left DNA evidence at the crime scene, and therefore, were important to identify. Whether or not that argument was sufficient, we were assured at the time that only convicted sex offenders would be tested and the information gleaned from these test would be used by law enforcement officials strictly for identification purposes. But, as often the case, that information initially collected for one, limited purpose is before long used for other purposes. In less than a decade, law enforcement official across the country have gone from advocating collection of DNA from only convicted sex offenders, and then to all violent offenders, and then to all burglars, and in some states to anyone convicted of any crime and even juvenile offenders. And finally we have recently seen proposals from as far up as Janet Reno to collect DNA from people who are merely arrested before they are even convicted regardless of whether they're guilty of any wrong doing whatsoever. And Rudy Giuliani has not only voiced his support for this proposal but he's gone so far as to say that he would support the collection of DNA samples from all babies born at birth giving the city a genetic database of all of its citizens. I wish that I were exaggerating here. The collection of DNA does have some good uses. The ACLU does not oppose any specific form of technology but rather the government should have a very tight method between the means and the ends. Unlike sex offenders or violent criminals who do leave DNA at the crime scene, just to say that burglars might someday commit a violent crime when they have never before committed a violent crime is not a tight enough nexus between means and ends, and simply does not justify collecting DNA, which as I said before gives very personal information about anyone related to the sample source. I've given you a lot of information in a position paper that I know you'll soon have a chance to review about nationwide what we have seen in terms of DNA collection and other types of information collection. Three more points I just want to make. One is that again, unlike fingerprinting, you know DNA has been touted as some sort of high-tech fingerprinting, but in fact it provides a lot of information about a person's ethnicity, their family relationships, their family history and the likelihood of getting some 4,000 genetically conditioned diseases. The folks that call my office and write to my office every week about these kinds of concerns say that this information belongs to the individual; it's owned by the individual; it should not be owned by the government again without some compelling justification. The second point I want to make is that, to wrap up, is that we've seen a long history in this country of "function creep." Function creep is a term that we've created to describe where you're told that information you surrendered to the government will only be used for one function but ... that function kind of expands and creeps and the argument by proponents is that, "Hey we've already got the information, it's kind of related, what's the harm." For example, social security numbers were initially intended only for use as an aid for tracking social security payments, but are now universal identifiers. Another example, census records, a hot topic today. Census records created for general, statistical purposes were actually used in 1942 to round up Japanese-Americans and place them in internment camps during World War II. And finally, there's something not in my position paper. This bill just popped up on my radar screen recently and there's another point that I would like to make that's not in my paper. But we do object to Section 8's retroactivity. The basis for our objection to making this bill retroactive is that if somebody has done their time and they now they've got their life together and they have not been a recidivate of any crime and certainly not a violent crime to have the government now to go to them and ask for a DNA sample as though well we know you've got your act together but we're still suspicious. Someday you might just commit a violent crime. We don't think the government can justify going to that person. I appreciate again the opportunity to testify, and I need to look into one point a little further. I could find no requirement either in this bill or the Alaska Statutes that the DNA sample from which the genetic information is taken must be destroyed. If there is no such requirement there certainly should be. And I may have heard today that samples of this are sitting around since 1995. I don't know. I'd like to look into that a little bit further, but I'm certainly open to any questions the committee might have. I thank you for your time. Number 1232 ROBERT BUTTCANE, Juvenile Probation Officer, Youth Corrections, Division of Family and Youth Services, Department of Health & Social Services, came before the committee to testify in favor of HB 294. He said he appreciates the concerns raised by the ACLU in relation to an intrusion of the government, but this bill affects those who are convicted of burglaries or an adjudicated delinquent of burglary offenses. These are very serious felony offenses. He noted that Burglary I is a class B felony. It is not a small matter when somebody enters another person's home and commits a crime. Statistically, there is a correlation between the commission of burglary and other serious acts against persons. The Administration is putting this bill forward in order to get "bad guys" off the street. MR. BUTTCANE noted that in FY [fiscal year] '99 there were approximately 50 delinquents adjudicated of burglary offenses out of 7,484 referrals. Even though 50 is not a big number, they caused considerable havoc to neighborhoods and communities, and they typically have a long history of offenses. If the state can identify them in future criminal activities through DNA sampling, communities can feel safer and offenders can be held accountable to conduct that a civilized community should expect. The bill is really narrow in its focus of trying to identify those who pose a serious concern to the safety of the public. He encouraged the committee members to consider the bill favorably. The concerns Representative Croft expressed in relation to Section 6, of the bill, can be worked out. He suggested working with the Department of Law in looking at how to balance the burden of removing DNA evidence after a conviction is either overturned or a person is found "not guilty." Number 1401 REPRESENTATIVE GREEN expressed his appreciation of Mr. Buttcane's suggestion in looking at the issue surrounding Section 6. He agreed that there should be something in the bill indicating that after a certain time or use, a DNA sample should be destroyed. Number 1445 CANDACE BROWER, Parole Board Officer, Parole Board, Division of Community Corrections, Department of Corrections, came before the committee to testify. She pointed out that the changes in the bill allow for non-medical personnel to collect samples from convicted felons. This is a particular important part of the bill for the Department of Corrections because in times of fiscal scarcity it has become incumbent upon the department to collect the samples. Generally, she explained, when someone has been convicted of a crime they are in a correctional institution, therefore, the medical staff of the Department of Corrections has been the ones who predominately collect the samples, yet the medical staff is becoming scarcer and scarcer. She believes that with the simplicity of gathering saliva samples and with appropriate training from medical personnel staff anyone could collect a sample without problems. She asked that the committee members consider that part of the bill. Number 1515 REPRESENTATIVE GREEN said he certainly concurs with the statements made by Ms. Brower. He announced that HB 294 would be held over. ADJOURNMENT Number 1519 There being no further business before the committee, the House Judiciary Standing Committee meeting was adjourned at 3:18 p.m.