HOUSE JUDICIARY STANDING COMMITTEE
February 10, 1997
1:02 p.m.
MEMBERS PRESENT
Representative Joe Green, Chairman
Representative Con Bunde, Vice Chairman
Representative Brian Porter
Representative Norman Rokeberg
Representative Jeannette James
Representative Eric Croft
Representative Ethan Berkowitz
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
*HOUSE BILL NO. 120
"An Act relating to the power of the attorney general to waive
immunity from suit in federal court; and providing for an
effective date."
- HEARD AND HELD
CONFIRMATION HEARING BARBARA BRINK, ALASKA PUBLIC DEFENDER
- CONFIRMATION ADVANCED
HOUSE CONCURRENT RESOLUTION NO. 4
Relating to records generated and maintained by the Department of
Health and Social Services.
- HEARD AND HELD
HOUSE BILL NO. 6
"An Act amending laws relating to the disclosure of information
relating to certain minors."
- SCHEDULED BUT NOT HEARD
HOUSE BILL NO. 3
"An Act relating to disclosures of information about certain
minors."
- SCHEDULED BUT NOT HEARD
(* First public hearing)
PREVIOUS ACTION
BILL: HB 120
SHORT TITLE: STATE IMMUNITY FROM SUIT IN FED COURT
SPONSOR(S): REPRESENTATIVE(S) HUDSON, Green, Ogan, Croft
JRN-DATE JRN-PG ACTION
02/07/97 265 (H) READ THE FIRST TIME - REFERRAL(S)
02/07/97 265 (H) JUDICIARY
02/07/97 276 (H) JUD WAIVED PUBLIC HEARING
NOTICE,RULE23
02/10/97 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HCR 4
SHORT TITLE: SEPARATE RECORDS FOR DELINQUENTS & CINA
SPONSOR(S): REPRESENTATIVE(S) KELLY, Phillips, Dyson, Ryan
JRN-DATE JRN-PG ACTION
01/13/97 21 (H) READ THE FIRST TIME - REFERRAL(S)
01/13/97 21 (H) HES, FINANCE
01/14/97 59 (H) COSPONSOR(S): PHILLIPS
01/15/97 78 (H) COSPONSOR(S): DYSON
01/23/97 (H) HES AT 3:00 PM CAPITOL 106
01/23/97 (H) MINUTE(HES)
01/28/97 (H) HES AT 3:00 PM CAPITOL 106
01/28/97 (H) MINUTE(HES)
01/29/97 174 (H) COSPONSOR(S): RYAN
01/31/97 183 (H) HES RPT 7DP
01/31/97 183 (H) DP: DYSON, GREEN, BUNDE, KEMPLEN,
BRICE
01/31/97 183 (H) PORTER, VEZEY
01/31/97 183 (H) 2 ZERO FNS (ADM, HES)
02/03/97 227 (H) JUD REFERRAL ADDED
02/03/97 227 (H) REMOVED FROM FINANCE
02/03/97 227 (H) REFERRED TO JUDICIARY
02/10/97 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
REPRESENTATIVE BILL HUDSON
Alaska State Legislature
Capitol Building, Room 108
Juneau, Alaska 99811
Telephone: (907) 465-3744
POSITION STATEMENT: Prime Sponsor HB 120.
JOANNE GRACE, Assistant Attorney General
Natural Resources Section
Civil Division
Department of Law
1031 West 4th Avenue, Suite 200
Anchorage, Alaska 99501-1994
Telephone: (907) 269-5100
POSITION STATEMENT: Testified in favor of HB 120.
SUSAN COX, Assistant Attorney General
Special Litigation Section
Civil Division
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
Telephone: (907) 465-3600
POSITION STATEMENT: Provided testimony on HB 120.
BARBARA BRINK, Acting Public Defender
Department of Administration
900 West 5th Avenue, Suite 200
Anchorage, Alaska 99501-2090
Telephone: (907) 264-4400
POSITION STATEMENT: Provided testimony on her confirmation.
JOHNNY GRAVES
525 West 3rd Avenue
Anchorage, Alaska 99501
Telephone: (907) 274-6348
POSITION STATEMENT: Provided testimony on the appointment of the
State Public Defender.
BRUCE CAMPBELL, Legislative Aide
to Representative Pete Kelly
Capitol Building, Room 411
Juneau, Alaska 99811
Telephone: (907) 465-5241
POSITION STATEMENT: Prime sponsor HCR 4.
REPRESENTATIVE PETE KELLY
Alaska State Legislature
Capitol Building, Room 411
Juneau, Alaska 99811
Telephone: (907) 465-5241
POSITION STATEMENT: Prime sponsor HCR 4.
DIANE WORLEY, Director
Division of Family and Youth Services
Department of Health and Social Services
P.O. Box 110630
Juneau, Alaska 99811-0630
Telephone: (907) 465-3191
POSITION STATEMENT: Provided testimony on HCR 4.
CHRIS CHRISTENSEN, General Counsel
Alaska Court System
820 West 4th Avenue
Anchorage, Alaska 99501-2005
Telephone: (907) 264-8228
POSITION STATEMENT: Provided testimony on HCR 4.
ROBERT BUTTCANE, Juvenile Probation Officer
McLaughlin Youth Center
2600 Providence Drive
Anchorage, Alaska 99508
Telephone: (907) 562-2285
POSITION STATEMENT: Provided testimony on HCR 4.
SCOTT CALDER
P.O. Box 75011
Fairbanks, Alaska 99707
Telephone: (907) 474-0174
POSITION STATEMENT: Provided testimony on HCR 4.
ACTION NARRATIVE
TAPE 97-12, SIDE A
Number 001
The House Judiciary Standing Committee was called to order by
Chairman Joe Green at 1:02 p.m. Members present at the call to
order were Representatives Con Bunde, Brian Porter, Jeannette
James, Ethan Berkowitz, and Chairman Joe Green.
HB 120 - STATE IMMUNITY FROM SUIT IN FED COURT
Number 100
CHAIRMAN JOE GREEN advised members they would first consider HB
120, "An Act relating to the power of the attorney general to
waive immunity from suit in federal court; and providing for an
effective date."
CHAIRMAN GREEN invited Representative Hudson, prime sponsor, to
address the committee.
REPRESENTATIVE BILL HUDSON, Prime Sponsor of HB 120, expressed
that it had just recently come known that legislative action was
necessary in order to protect a broader interest that the state
had.
REPRESENTATIVE HUDSON explained that the Eleventh Amendment of
the U.S. Constitution prohibits suits against states in federal
court for damages brought by citizens of the state. He pointed
out that recent decisions of the United States District Court for
the District of Alaska had prohibited the attorney general from
waiving the state's Eleventh Amendment immunity from suit without
express authority from the legislature. Representative Hudson
stated that although the attorney general had statutory authority
to represent the state in all civil actions in which the state
was a party, there was no specific legislative authority to waive
the Eleventh Amendment immunity where it was in the state's best
interest to do so.
Representative Eric Croft arrived.
REPRESENTATIVE HUDSON advised members that from time to time,
there were cases where it would be procedurally advantageous for
the state to waive that immunity and have a case heard in federal
court. HB 120 addressed one case the state would like to be a
party of, and Representative Hudson stated that a proposed
amendment would include one other case that the state felt it
should become a party to.
REPRESENTATIVE HUDSON advised members that the first case was
addressed in the original language of HB 120. The United States
was being sued by plaintiffs in Alaska to seek judgment that the
United States owns the tidelands in the Tongass National Forest.
Representative Hudson reiterated the need to waive the Eleventh
Amendment immunity clause in order for the state to become party
to that suit to determine the state's title to the lands in
dispute. Representative Hudson explained that the only way the
state could litigate title to those tidelands was by joining as a
defendant in
the case. The Quite Title Act requires that the United States
claim an interest in the disputed property, and in this
particular case, the United States had carefully avoided taking
any formal position as to whether it believes it, or the state,
has title to the tidelands in question. He stated that by
joining as a defendant, the state would secure the opportunity to
establish title to lands the state believes it owns.
Representative Norman Rokeberg arrived.
REPRESENTATIVE HUDSON advised members that the second case
involved tort claims where the state and the federal government
were both, potentially, responsible. Representative Hudson
explained that it would be necessary to waive the state's
Eleventh Amendment immunity in order to pursue that issue in
federal court as well. He pointed out that if the state was
unable to waive the Eleventh Amendment and appear and defend in
federal court, the state would lose its ability to have a fair
allocation of fault among all responsible parties.
Number 439
REPRESENTATIVE HUDSON concluded pointing out that the purpose of
HB 120 was to ask the state legislature to allow the attorney
general to give the state's consent to appear in federal court as
a defendant in a case that involves the state's title to
submerged lands. The proposed amendment would further enable the
attorney general to waive the Eleventh Amendment immunity, and
litigate in federal court, in cases where the state seeks to
allocate fault to the federal government, or a federal employee
under AS 09.17.080.
Number 586
CHAIRMAN GREEN asked if the proposed legislation would create the
potential for opening the state up to civil litigation, other
than the two intended cases, during the time period the Eleventh
Amendment immunity is granted.
JOANNE GRACE, Assistant Attorney General, Natural Resources
Section, Civil Division, Department of Law, testified via
teleconference from Anchorage. In response to Chairman Green's
question, Ms. Grace felt the legislature would be granting the
attorney general the authority to consider entering in on a case
by case basis, but only in a couple of narrow circumstances. She
pointed out that the authority provided would only be in effect
until the sunset clause went into effect. Ms. Grace went on to
say that she did not think it would induce plaintiffs to sue the
state in federal court that they otherwise would not have,
because the circumstances were so unusual.
Number 860
REPRESENTATIVE ETHAN BERKOWITZ asked if there was a reason for
not specifying the names of the two individual cases in the
proposed legislation. He felt that would appear to be the most
limited way to address the issue.
MS. GRACE could not respond directly to that question; however,
did not feel it would make a difference because the intent was
for those two specific cases. If Representative Berkowitz would
be more comfortable with language that would specifically name
the two cases at issue, Ms. Grace did not feel the Attorney
General's Office would have a problem with doing that. The
submerged lands case was Peratrovich v. United States, A92-734 CV
(HRH).
REPRESENTATIVE ERIC CROFT stated that it was his understanding
that it involved a jurisdictional issue, and the legislature
would not be changing the law that would be applied, but simply
waiving the state's right to object to appearing in a particular
forum.
MS. GRACE stated that was exactly correct. She went on to
explain that the federal court did not have jurisdiction to hear
a case brought by a citizen against the state unless the state
waives its Eleventh Amendment immunity.
REPRESENTATIVE CROFT expressed that the state would be applying
the same substantive legal principles, whether federal or state,
or a combination, to the case after immunity is waived than they
would have before.
MS. GRACE stated that it was simply a procedural issue, but if
the Eleventh Amendment immunity were not waived, there would not
be a case.
REPRESENTATIVE CROFT stated that with that in mind, he would not
share the concern expressed by Representative Berkowitz because
it appeared to be a tactical concern that the attorney general
was perfectly able to handle, as to whether he wants to appear in
one court or another.
Number 1095
REPRESENTATIVE BRIAN PORTER referenced lines 8 and 9, "The time
limitation on the attorney general's power to waive the state's
immunity under this subsection does not affect such a waiver
given before January 1, 1999." He noted that through research,
it was his understanding that what was being proposed was that
the waiver, on the two specific cases at issue, would remain in
effect if litigation exceeded the date of January 1, 1999.
MS. GRACE advised members that would be correct.
REPRESENTATIVE PORTER asked Ms. Grace if there was any reason why
that language could not be amended to read more clearly. Ms.
Grace stated that any language the committee felt would make the
statement more clear would be fine with the Attorney General's
Office.
REPRESENTATIVE CON BUNDE asked if the Peratrovich case related in
any way to the Dinkum Sands case.
MS. GRACE advised members that the Peratrovich case would involve
some of the very same issues involved in the Dinkum Sands case,
as well as the PL-082 case. She explained that those were
ongoing disputes between the State of Alaska and the United
States as to whether particular reservations that the federal
government created before statehood defeated the state's equal
footing doctrine interests in those submerged lands.
MS. GRACE stated that in the Dinkum Sands case the pre-statehood
reservations were the National Petroleum Reserve in Alaska
(NPRA), and the Alaska National Wildlife Refuge (ANWR), whereas
the Peratrovich case involved the Tongass National Forest. The
PL-082 case, a reservation in Northern Alaska, was also in
dispute with the United States relating to pre-statehood
reservations. Ms. Grace stated that between those cases, there
were general legal issues that were common, so that anytime the
state litigates one of those cases it would set a precedent for
the other cases that are unresolved.
CHAIRMAN GREEN stated that it was his understanding that there
was not a problem between the state and the federal government
regarding Dinkum Sands; that it was whether or not it existed as
an island from which to draw a three-mile arc which could create
an enclave.
MS. GRACE expressed that she may have used Dinkum Sands somewhat
loosely, pointing out that that case was actually United States
v. State of Alaska, that involved four separate issues, of which
one was the Dinkum Sands issue.
CHAIRMAN GREEN referenced the language Representative Porter felt
could be clarified and asked Ms. Grace if she could provide
language for the committee's consideration.
MS. GRACE advised members she would give it some thought, adding
that the intent was to preclude the United States from arguing
that the attorney general would lose his authority of the waiver
in those particular cases once he exercised his authority.
REPRESENTATIVE JEANNETTE JAMES moved to adopt Amendment 1, HB
120, page 1, line 6, following the word "lands," insert, or in
any case in which the state seeks to allocate fault to the
federal government or a federal employee under AS 09.17.080,.
There being no objection, Amendment 1 was adopted unanimously.
REPRESENTATIVE CROFT noted that the amendment had nothing to do
with the Peratrovich case, and asked if there was a time limit
involved with the other cases as referenced in the amendment.
SUSAN COX, Assistant Attorney General, Special Litigation
Section, Civil Division, Department of Law, advised members that
the posture of the Smith case mentioned in the backup
documentation for the amendment, was such that a motion to add
federal defendants was being filed this date, 02/11/97, in State
Superior Court in Bethel. She advised members that they
expected, once the motion is served, that the federal defendants
and a federal contractor would seek to have the case removed to
federal court where the state would then be faced with the
Peratrovich case. Ms. Cox stated that the department anticipated
that within several weeks to a month they would be looking at a
situation in which the federal court would be wondering whether
it has jurisdiction over the claims against the state.
CHAIRMAN GREEN advised members HB 120 would be considered the
following day at noon in order to clarify the language on lines 8
and 9 of the original bill.
REPRESENTATIVE NORMAN ROKEBERG pointed out that the legislature
waived its rules in order to consider HB 120 in an expedited
manner and felt the Attorney General's Office should be aware of
that.
CHAIRMAN GREEN advised members they would next consider the
appointment of Barbara Brink as the state's public defender.
REPRESENTATIVE BERKOWITZ declared a possible conflict of interest
because he has been a friend of Ms. Brink's for some time.
CONFIRMATION HEARING BARBARA BRINK, ALASKA PUBLIC DEFENDER
Number 1740
BARBARA BRINK, Acting Public Defender, Department of
Administration, advised members she was seeking confirmation of
that position. Ms. Brink expressed that she had the experience,
the desire and the skills to do a good job for the citizens of
Alaska.
MS. BRINK advised members that she had been an assistant public
defender since the early 1980s, and was appointed Deputy Director
of the Public Defender Agency by the State Public Defender at
that time, John Salemi, in 1988.
MS. BRINK informed members that the agency would be submitting a
capital project request for the purchase of legal research tools;
CD Rom, Brief Banks, Motion Banks, computer hardware and software
to allow communication with lawyers throughout the state and
country.
CHAIRMAN GREEN noted that Ms. Brink would be making a transition
from actual trial work to administrative work and asked how that
transition might affect her.
Number 2020
MS. BRINK stated that over the past eight years she had had the
opportunity to be involved in both case-work and administrative
responsibilities. She did not know if she would be able to
continue to represent clients; however, she felt that was a
valuable tool to keep abreast of what was occurring in the
trenches, and to have an understanding of what the courts, the
clients and her staff were doing.
REPRESENTATIVE JAMES asked Ms. Brink how much money the agency
would be requesting in capital funds, and how those funds would
be expended.
MS. BRINK's response was that they would be requesting
approximately $200,000 for purchase of computer hardware for the
purpose of networking the agency's rural offices and the next
largest offices which range in size from four to six lawyers.
Ms. Brink stated that the agency would also like to have Internet
capabilities in the Anchorage office. She stated that the four
single lawyer offices would be networked to the entire system.
Ms. Brink noted that the Department of Administration supported
the capital fund request and were considering having a local
network person, from the department, assist in the planning
stages and implementation of the project.
REPRESENTATIVE BUNDE addressed the rate of recidivism among the
clients represented by the public defenders office and asked Ms.
Brink if she had any suggestion on how to reduce that rate. He
also noted the concern of victim's rights not being held on an
equal level with criminal rights, and if Ms. Brink might respond
to that.
MS. BRINK felt that a lot of the proposals she had heard among
different committees sounded very promising. She stated that the
idea of having more localized community effort and input, not
only regarding punishment, but dispute resolutions was an idea
whose time had definitely come. Ms. Brink pointed out that that
concept had proven to be workable in the Anchorage and Mat-Su
youth courts.
MS. BRINK, with respect to victim's rights, expressed that the
state had made strides in having victims feel and be more a part
of the adjudication process. She felt that as the trial court
judge is given the ability to waive those competing concerns and
assess which interest must take priority at a given moment, that
they would continue to have a fair system.
TAPE 97-12, SIDE B
Number 000
REPRESENTATIVE ROKEBERG referenced a document submitted in the
backup from John Holmes, Esquire and asked if Ms. Brink would
provide comments on Mr. Holmes opposition to her appointment as
State Public Defender.
MS. BRINK advised members that John Holmes was a former assistant
public defender who worked in the Ketchikan and Kotzebue office.
She felt the letter reflected a deep philosophy of his, of which
the two of them had had long conversations about. Ms. Brink
pointed out that Mr. Holmes felt that the best way to represent a
defendant in the criminal justice system was to take the
anarchist approach. She explained that he would concede nothing;
file every motion under the sun, and be oppositional at every
turn. Ms. Brink noted that Mr. Holmes felt that that was the
best method of serving his clients. Ms. Brink agreed that that
was one approach; however, not one she had adopted.
REPRESENTATIVE ROKEBERG referenced a letter of recommendation
from what appeared to be a colleague of Ms. Brink's and asked if
she felt it was appropriate to write that letter on the agency's
letterhead.
MS. BRINK felt it was not appropriate to use public defender
stationery for the purpose of expressing a personal opinion.
REPRESENTATIVE CROFT pointed out that Mr. Holmes appeared to
oppose all candidates for the position of State Public Defender.
MS. BRINK felt Mr. Holmes' concerns came from the heart, adding
that he was a dedicated public defender and he felt his way was
the best way to deal with a system he viewed as unfair.
Number 465
JOHNNY GRAVES advised members that he believed there was a gender
bias against males in the court system, and law enforcement,
generally. He also felt the public defenders office and the
district attorneys office had too close a relationship, noting
that in some cases it appeared they were actually working
together against a defendant. Mr. Graves requested the newly
appointed public defender to check into those concerns.
REPRESENTATIVE PORTER advised members that to him, the
appointment of Ms. Brink as the State Public Defender was
extremely appropriate, and it was his hope Ms. Brink would
maintain her point of view and strong commitment to the charge
and function of the public defender's office.
REPRESENTATIVE PORTER moved that the Governor's appointment of
Barbara Brink as the State Public Defender be moved out of
committee and on to the Joint Floor Session for confirmation
purposes.
HCR 4 - SEPARATE RECORDS FOR DELINQUENTS & CINA
BRUCE CAMPBELL, Legislative Aide to Representative Pete Kelly,
addressed the committee on HCR 4, Relating to records generated
and maintained by the Department of Health and Social Services.
MR. CAMPBELL advised members that HCR 4 was a companion bill to
HB 6 and was a resolution that enables the Department of Health
and Social Services (DHSS) to separate the staff who handle child
abuse cases from the staff who manage criminal records within the
Youth Corrections division.
MR. CAMPBELL explained that the separation of staff and personnel
would protect the agency from the loss of most of the federal
funds received for out-of-home placement. He noted that
currently, over $7 million in federal funds was spent each year
for out-of-home placement for abused children, and the separation
would protect funds used for children in need of aid cases. Mr.
Campbell explained that the separation would not protect funds
used for foster placement of delinquent children.
MR. CAMPBELL advised members that removing children from
dysfunctional homes was an important option for breaking the
cycle of violence for children who commit criminal acts.
MR. CAMPBELL pointed out that through discussions with the
department, he would be offering a technical amendment for the
committee's consideration. Mr. Campbell stated that the issue
was not so much the separation of records, but the task necessary
so delinquency records could be disclosed with a minimal loss of
federal funds. He noted that the primary task the department
would be taking on was the restructuring of individuals who
handle those types of records; personnel dealing with Children in
Need of Aid (CINA) records would fall under one section of the
department, and personnel dealing with delinquency records would
fall under a separate section within the department.
MR. CAMPBELL pointed out the restructuring costs and process was
explained in detail in the department's fiscal note.
Number 1014
Representative Pete Kelly arrived.
REPRESENTATIVE BERKOWITZ stated that it was his understanding
that presently the judge would receive a packet of information in
a delinquency proceeding, and CINA records would be included in
that file.
REPRESENTATIVE PETE KELLY stated that depending on the case, that
would be correct.
REPRESENTATIVE ROKEBERG asked Representative Kelly to explain how
HB 6 and HCR 4 were interrelated.
REPRESENTATIVE KELLY advised members that achieving disclosure
was a multi-step process. He stated that prior to effective
disclosure it would be necessary to reorganize within the
division so that a sizeable amount of federal funds would not be
jeopardized. Representative Kelly felt HB 6 and HCR 4 would be
mutually inclusive and felt HB 6 would not be achievable with out
the results of HCR 4.
CHAIRMAN GREEN added that he viewed HCR 4 as enabling legislation
for HB 6, which the committee would consider the following
Wednesday.
DIANE WORLEY, Director, Division of Family and Youth Services
(DFYS), Department of Health and Social Services, explained that
the issue of restructuring the DFYS was a direct result of HB 6,
which would allow the department to disclose information on
juveniles involved with the system. She explained that both
family services and youth services were administered within the
same division of the department.
MS. WORLEY advised members that part of the department's function
was related to the ability to collect federal 4(e) dollars, which
was related directly to children who are in out-of-home
placement. She explained that the state receives approximately
$7 million in 4(e) funds from the federal government. One of the
requirements, in order to access those funds, was to have strict
confidentiality regulations regarding clients within the
division's care.
MS. WORLEY explained that in order to continue receiving those
federal funds it would be necessary for the department to
restructure the youth and family services division. She advised
members that the state currently collects approximately $7
million in federal 4(e) dollars, of which approximately $700,000
were for the juvenile population.
MS. WORLEY stated that even with the restructuring, the
department would still lose federal 4(e) dollars attached to the
juvenile population. The state would not lose the $6 million
plus, currently claimed on the CINA families.
Number 1520
REPRESENTATIVE BUNDE asked if this was an idle threat from the
federal government, and questioned whether other states which had
failed to comply with the federal requirements had ultimately
lost those federal funds.
MS. WORLEY stated that the majority of states who were disclosing
information on juveniles were not set up with both family
services and youth services administered within the same
division, so it was not an issue for those states. Those states
who had systems similar to Alaska's were considering similar
restructure changes. Ms. Worley noted that the federal
government was very clear on the issue of confidentiality, and
that was one of the primary criteria for receiving those federal
funds.
REPRESENTATIVE JAMES expressed that it would be possible for a
child in need of aid to become a delinquent and asked how the
department would accommodate that situation.
MS. WORLEY did not feel that would be an issue as long as the
department kept their files and accounting explicitly separate
between the two segments, which would be the case after
restructuring.
REPRESENTATIVE JAMES presented a hypothetical situation of a
delinquent child becoming a CINA child, at some point in time,
and questioned whether that child would be able to go over to the
CINA side of the structure after first falling under the division
of youth services.
MS. WORLEY felt that was an excellent question, and one she had
not thoroughly considered. She stated that it was her
understanding that if a disclosure occurred in the juvenile
section and later became a CINA case, the department would not
disclose any further information relating to the juvenile case.
Ms. Worley noted that she would research that further and advise
the committee if she had any misunderstanding of the process.
TAPE 97-13, SIDE 1
Number 000
CHRIS CHRISTENSEN, General Counsel, Alaska Court System, advised
members he had worked with Ms. Worley the previous year on the
proposed legislation, as well as having several conversations
with officials of the Children's Bureau in Washington, D.C. and
Region 10 in Seattle the year before that.
REPRESENTATIVE PORTER asked why the courts could not release
their records and avoid DFYS problems with release.
MR. CHRISTENSEN advised members that he was told that any
information the court system received from the DFYS could not be
re-released without DFYS losing funds. He stated that unlike
adult cases where the arresting officer brings the name of the
offender to the court's attention, with children's cases the
arresting officer does not actually file the charge with the
court; the charge would always come from the DFYS. The court
system is not allowed to release the name of the child, adding
that if one could not release the name of a child it would not
make sense to release any other information even if internally
generated.
REPRESENTATIVE PORTER expressed his dissatisfaction with the
federal government's philosophy on that issue.
Number 103
REPRESENTATIVE BERKOWITZ asked what the juvenile records looked
like, who they were generated by and who had access to them.
MS. WORLEY advised members that the juvenile record would include
the arrest record and any additional information that had been
discovered since that point. It would include information
regarding discussions with the probation officers, information
relating to discussions with the parents and discussions as to
the possible outcome of the case; i.e., petition the court or
adjust the case. Ms. Worley noted that the file could also
include other information relating to psychological evaluations
or other testing that might have been done.
ROBERT BUTTCANE, Juvenile Probation Officer, pointed out that
other documents that might be included in the juvenile file would
be a risk needs assessment which involved a formal evaluation of
what the individual's needs are, as well as what levels of risk
they could present to the community. Medical records could also
be found in the file that might indicate special issues that the
department would need to be aware of when determining placement
or treatment intervention programs, and financial issues relating
to parent income. Mr. Buttcane pointed out that a great deal of
information relating to victims would be contained in the
juvenile file, along with negotiations that had taken place with
them; restitution agreements, assignment of restitution levels
between multiple co-defendants, and occasionally extensive school
records, especially if the youth were deemed a special education
student.
REPRESENTATIVE BERKOWITZ felt that some of the information
contained in the juvenile record could be considered privileged
or confidential, and asked if that would present a problem within
the proposed resolution.
MS. WORLEY stated that in the Governor's proposed disclosure of
juvenile records there was a distinction as to what could, and
what could not be released, such as medical records, psychologic
evaluations and information relating to personal family history
would not be open to the public. She thought those types of
exclusions were included in Representative Kelly's resolution
also.
REPRESENTATIVE JAMES expressed that she was having a difficult
time trying to figure out why the state was attempting to protect
personal records for the purpose of not losing federal funds,
when what they really want to know are the names of the juveniles
who were committing crimes.
MS. WORLEY agreed with the statement made by Representative
James; however, stated that people also wanted to know how the
situation was handled after the juvenile was suspected of
committing a crime.
REPRESENTATIVE KELLY explained that the juvenile records
Representative Berkowitz was referring to are provided to the
court system, but HB 6, that would be addressed by the committee
at a later date, does not address those records. The context of
that proposal was the release of the names of the juveniles and
the parents.
REPRESENTATIVE ROKEBERG pointed out that the committee was, or
would be considering HB 3, HB 6 and HCR 4 as a package,
basically, because they were all interrelated. He noted,
however, that the Governor had introduced legislation and asked
what the department's position was on that.
MS. WORLEY advised members that the current position of the
Department of Health and Social Services was that they did
support the Governor's bill that was developed as a result of the
Governor's Conference on Youth and Justice. She also expressed
that the department was working closely with Representative Kelly
on HB 6, and continue working towards some compromise in that
bill. Ms. Worley advised members the department did not support
HB 3 because they did not agree with the time of disclosure.
Number 1378
REPRESENTATIVE BUNDE moved to adopt Amendment 1 as follows; page
1, line 8, after the word "disclosure;" delete the word [and],
delete lines 9 and 10 in total; on line 13 delete [existing CINA
and delinquency records are], and insert delinquency information
can be disclosed with minimal loss of federal funds., and delete
lines 14 and 15 entirely. There being no objection, Amendment 1,
HCR 4 was adopted unanimously.
REPRESENTATIVE PORTER advised members that the Governor's bill
was a result of the recommendation of the Juvenile Justice
Commission and that he and Representative Kelly served on that
commission. He explained that the original organization of the
commission had been broken down into three groups.
Representative Porter stated that he served on the group that
dealt with the issue of the release of juvenile records. The
recommendation Representative Porter's group arrived at was
somewhat stronger that what was contained in the Governor's bill,
and more typical of Representative Kelly's bill.
SCOTT CALDER, Fairbanks resident, advised members that one of the
primary problems with access to records was the ability of
parents to obtain records on their own children. He felt that
would be one of the initial problems to resolve, adding that he
had not heard any discussion taking place on that issue at all.
CHAIRMAN GREEN appreciated the comments of Mr. Calder; however,
explained that HB 6 would be considered by the committee the
following Wednesday and invited Mr. Calder to provide comments
during that hearing.
ADJOURNMENT
Number 1664
CHAIRMAN GREEN adjourned the House Judiciary Standing Committee
meeting at 3:03 p.m.