MINUTES SENATE FINANCE COMMITTEE March 10, 1997 9:05 A.M. TAPES SFC-97, # 51, Sides 1 & 2 (000-589, 589-587) CALL TO ORDER Senator Bert Sharp, Cochair, Senate Finance Committee, convened the meeting at approximately 9:05 A.M. PRESENT In addition to COCHAIR SHARP, SENATORS DONLEY, PHILLIPS, TORGERSON and ADAMS were present when the meeting was convened. SENATOR PARNELL and COCHAIR PEARCE arrived as the meeting was in progress. Also Attending: BOYD BROWNFIELD, Deputy Commissioner, Department of Transportation and Public Facilities; RON OTTE, Commissioner, Department of Public Safety; CRAIG JOHNSON, Legislative Aide to Senator Ward; ROBERT COLE, Director, Administrative Services, Department of Corrections; MIKE GREANY, Director, Legislative Finance Division; and aides to committee members. SUMMARY INFORMATION EO 98 TRANSFER HIGHWAY FUNCTIONS TO DOT&PF Boyd Brownfield testified in support. Senator Adams MOVED EO 98 from committee with individual recommendations. Without objection, EO 98 was REPORTED OUT. EO 99 TRANSFER DMV TO DOA Commissioner Otte testified in support. Senator Adams MOVED EO 99 from committee with individual recommendations. Without objection, EO 99 was REPORTED OUT. SJR 3 PRISONER RIGHTS LIMITED TO FEDERAL RIGHTS Senator Donley testified on behalf of the resolution. Bob Cole was available for questions. Senator Phillips MOVED that CSSJR 3(JUD) be reported out with individual recommendations and a previous zero fiscal note. Without objection, CSSJR 3(JUD) was REPORTED OUT of committee with a zero fiscal note from the Department of Administration. Craig Johnson testified on behalf of the resolution. Discussion was had concerning additional descriptive language. Cochair Sharp HELD SJR 15 for the purpose of drafting a CS. SUPPLEMENTAL BUDGET REQUESTS Cochair Pearce announced scheduling plans. There was brief discussion of Department of Corrections requests. Executive Order No. 98 - Transfer Highway Functions to DOT&PF Executive Order No. 99 - Transfer DMV to DOA COCHAIR SHARP announced that EO 98 and EO 99 were on the table for comments. SENATOR PHILLIPS asked representatives from the Department of Transportation and Public Facilities and the Department of Public Safety whether anyone had contacted the departments in opposition to EO 98 or EO 99. BOYD BROWNFIELD, Deputy Commissioner, Department of Transportation and Public Facilities, stated that to his knowledge there had been no negative contacts on Executive Order No. 98. RON OTTE, Commissioner, Department of Public Safety, responded that he had not received any negative comments either within or without the department concerning Executive Order No. 99. SENATOR ADAMS MOVED EO 98 from committee with individual recommendations. Without objection, EO 98 was REPORTED OUT. SENATOR ADAMS MOVED EO 99 from committee with individual recommendations. Without objection, EO 99 was REPORTED OUT. The presence of Senator Pearce was noted. SENATE JOINT RESOLUTION NO. 3 Proposing an amendment to the Constitution of the State of Alaska limiting the rights of prisoners to those required under the Constitution of the United States. SENATOR DONLEY, Sponsor, explained that SJR 3 proposed an amendment to the Alaska Constitution that would limit the rights of convicted prisoners in the state to those rights they are entitled to under the constitution of the United States, thus creating a single constitutional standard for determining the rights of prisoners in the state. The standard would be the U. S. Constitution. Currently, because Alaska has a modern constitution, it has a lot of individual personal liberties and safeguards that are not present in the U. S. Constitution, nor are they present in many other state constitutions. They are wonderful things when applied to the general public, but when extended into the prison system can cause significant problems with the administration of prisons. The resolution would establish a single base line for the rights of prisoners in Alaska. He gave some examples of specific areas where the state constitution has been interpreted to give rights they would not be entitled to under the federal constitution. One was the requirement that all prisons in Alaska be furnished with a law library. The federal constitution requires that prisoners be allowed access to law information, but doesn't require a law library in every facility. Many other states provide that information in other ways. There are substantial due process protections extended to Alaska prisoners regarding disciplinary procedures that have not been required in other states or in the federal system. It is difficult to predict what additional rights Alaska courts would determine for prisoners that don't currently exist in the federal constitution since the law is always evolving because there are many prisoner lawsuits. It would make the review of such lawsuits in the future a much simpler process since there would be a single constitutional standard with over two hundred years of case law to aid in determining rights. In Alaska, being a new state, many questions require extensive work to determine and make a legal guess as to the unique provisions of the state's constitution. The presence of Senator Parnell was noted. SENATOR DONLEY added that he had studied the Cleary agreement for several years to figure out how to modify or overturn some of its elements. The agreement has at least four places where the state has agreed not to reopen or renegotiate. It would take a very significant change for the state to renegotiate. Many people think the state should do that and the legislature passed a resolution several years ago, but it has not been pursued by the department because they didn't feel that there was any significant change to justify a Cleary revisit. The resolution may not, in itself, allow sufficient basis to reopen Cleary, it would be a significant change and go a long way toward accumulating sufficient basis for the state to seek to reopen the Cleary agreement and renegotiate some of the standards. If approved by the legislature and voters of the state, there would be a single standard for prisoners' rights and it would be simpler to determine what is required. SENATOR ADAMS asked to see a table or chart showing the difference between the state and federal constitutions. He then asked if the resolution does or does not reopen the Cleary case. His final question was whether the resolution would make it easier for the death penalty. SENATOR DONLEY replied that a chart was difficult to construct because courts have not separated decisions between constitutions. They have made rulings that are different than federal rulings but they did not say they were specifically because of the state constitution. Some cases will say they ruled a certain way under the basis of both constitutions, but they don't separate why they did it. The courts typically will not identify the differences because they don't have to. Senator Donley offered to provide research that indicates places where they have done things that other states haven't required in the area of due process and internal disciplinary procedures. Responding to Senator Adams' second question, SENATOR DONLEY said SJR 3 would not automatically reopen Cleary because it was a settlement. It can only be reopened if either of the parties seek to reopen it, then it is based on an existing situation and the reasons for reopening it. The settlement has strong anti-reopening clauses that would require substantial changes to be in effect. It was his belief that SJR 3 would be a substantial and significant enough change that the state could petition the court to reopen Cleary. There is a question whether SJR 3 would be significant enough for a court to rule a reopening. The court would look to the total circumstances involved. SJR 3 would be a step forward and may be sufficient justification for a party to ask Cleary to be reexamined. SENATOR DONLEY spoke to the third question regarding the death penalty. He said there had been no testimony that the language in CSSJR 15(JUD) would have any direct impact on the death penalty. It was different than the specific references to "cruel and unusual punishment" that were originally addressed in the Judiciary Committee. SENATOR DONLEY acknowledged that "it might" [make it easier for the death penalty]. SENATOR ADAMS inquired whether there was a legal opinion on whether SJR 3 would reopen Cleary, or if it was an assumption. SENATOR DONLEY responded that the Department of Law testified in the Judiciary Committee that the resolution alone would unlikely allow them to reopen the case, but that it would be a factor in building a case to reopen it. SENATOR DONLEY gave additional examples of Alaska rulings. One was that prisoners have a right to a photocopier. Another was the right to access rehabilitation programs, which federal law and other state laws don't establish as a right. He noted that the penal administration in Alaska has the programs, but prisoners would no longer have a constitutional right to access them. SENATOR ADAMS asked what the impact would be on prisoner rehabilitation without the right to access. SENATOR DONLEY answered that under the existing provisions of the constitution, the department would provide rehabilitation programs. Programs are currently limited based on budgetary restraints. He expected that would continue. The resolution would say the prisoners didn't have a right to access programs. So, it would continue that people who run the prisons would pick and choose prisoners who had the best chance by limiting access to those most likely to benefit. It would limit access to a limited resource and some of the programs are very expensive to provide. If prisoners have a constitutional right to all of them, even those in for sixty years, it will get expensive. SENATOR ADAMS asked the difference and reasoning between the original resolution and the Judiciary CS. SENATOR DONLEY explained that under federal law all constitutional rights stem from the prohibition against cruel and unusual punishment. The original resolution paralleled that, but with further examination, it was believed the Alaska courts would not follow the same rule and would look to other areas of the Alaska Constitution to interpret the rights of prisoners, including due process and equal protection clauses. The decision was made to rewrite it so that it didn't refer specifically to the prohibition against cruel and unusual punishment but to generally refer the Alaska Constitution rights that would extend to prisoners. It was redrafted as a separate section of the constitution so that it couldn't be later interpreted by a court that it only applied to the prohibition on cruel and unusual punishment but other areas of the constitution that the court may at a later time determine extended into the prison system. He believed it was a wise drafting choice. An additional change made it clear that this limitation only applied to convicted prisoners, so it could not be argued that it applied to those awaiting trial. SENATOR PHILLIPS inquired if there was public testimony. COCHAIR SHARP noted that Robert Cole was present to respond to questions and there were none. SENATOR PARNELL stated that the revisions made in the Judiciary Committee dramatically improved the resolution because "when you amend the constitution you better get it right." SENATOR DONLEY added that there were four hearings on the resolution in the Judiciary Committee and significant progress was made in the drafting from suggestions by the Department of Law and legislative drafters. COCHAIR SHARP stated it was easier to understand and analyze a new section than modified existing ones. SENATOR PHILLIPS MOVED that CSSJR 3(JUD) be reported out with individual recommendations and a previous zero fiscal note. Without objection, CSSJR 3(JUD) was REPORTED OUT of committee with a zero fiscal note from the Department of Administration. SENATE JOINT RESOLUTION NO. 15 Relating to reauthorization of the federal Intermodal Surface Transportation Efficiency Act of 1991. CRAIG JOHNSON, Legislative Aide to Senator Ward, testified that the resolution calls for the federal government to reauthorize ISTEA, a federal program that shares federal gasoline tax revenues with the states which is due to expire on September 30. Alaska has received over $1 billion in federal funds to build highways, ferries and airports since 1991. The funds represent approximately one-third of the state's transportation budget. SJR 15 calls on the federal government to renew the program and give states more flexibility in the way it uses funds to fill their individual needs. It sends a strong message to the Alaska delegation in Washington to support reauthorization of ISTEA. SENATOR DONLEY noted several committee meetings regarding this subject and efforts of states to delete the major investment study requirement of ISTEA. He asked if Senator Ward would be open to adding that issue to the resolution. MR. JOHNSON responded that Senator Ward would be receptive to amendments proposed by this committee. COCHAIR PEARCE commended Senator Ward for introducing the resolution, indicating that she has asked him to do so as Chair of the Transportation Committee because she shared similar concerns as Senator Donley. There are a number of things in ISTEA that the legislature has found frustrating. Since Congressman Young is the second ranking Republican on the committee that will have jurisdiction in writing the new ISTEA, she thought it important that the legislature decide first what they would like to see in ISTEA as it relates to Alaska, and then send the resolution to the congressional delegation so they understand the state's concerns. She suggested both Senator Torgerson and Cochair Sharp would probably come up with other specific areas of interest. One of hers was asking that the state be allowed to do some of the major maintenance with federal funds that it is not now allowed. Instead, the state waits for roads to fall apart and then pay the cost to rebuild them and bring them up to whatever the new standards happen to be. She stated that "we're building to New Jersey standards in rural Alaska sometimes and wasting, in my eyes, an enormous amount of money." She was appreciative of Senator Ward's willingness to have the committee make some specific comments in the resolution. COCHAIR SHARP added that the committee consider adding more descriptive language. He suggested on page 3, line 2, adding language to read "to authorize greater use of ISTEA funds for rehabilitation, major maintenance and repair of existing roads caused by extreme arctic weather and soil conditions" which was the root of most of the problems that cause the roads to deteriorate faster than those in the lower '48. He suggested that would give them something to hang their hat on as to why "things go to hell up here" faster than they do anywhere else. It is not because of lack of attention, it is the severe weather and soil conditions. SENATOR PHILLIPS added that subarctic be included in addition to arctic because it is a huge state. SENATOR TORGERSON stated he prepared an amendment that takes part of the enhancement funds, such as ten percent for bike trails, and asks Congress to give a percent of the ten percent to maintain what the state is building. He thought that was an important piece. COCHAIR SHARP proposed holding the resolution to add more descriptive language as discussed. He encouraged members to offer additions. His intent was to bring the resolution back later in the week as a CS incorporating the language. He added that he would coordinate that through his office. SENATOR TORGERSON brought up the fact that there were twelve subsections to ISTEA of which the state had exemptions for eight. He stated a need to focus on the eight and continue to ask for exemptions so that there was not a mandate to spend money on eight other programs that don't affect the state. He had previously requested a list of those exemptions from the commissioner of DOT&PF. COCHAIR SHARP agreed that the exemptions should be reinforced. COCHAIR PEARCE thought winter trails were nice and supported using the trail money to mark them in rural areas, but she saw so many road maintenance needs on major highways. She wished ISTEA wouldn't set aside dollars the state is not able to spend to build trails when there aren't safe places to drive cars. SENATOR TORGERSON thought the state didn't have a choice, that they would set aside the enhancement money. His amendment would at least ask for the authority to spend enhancement money to maintain what the state is building. COCHAIR PEARCE stated it was worth letting the congressman know if they feel strongly about anything because they have proven their ability to amend laws for Alaska in previous times. COCHAIR SHARP suggested requesting utilization of those funds for improvement of pioneer access roads, historic trails and recreational trails. He then asked members to coordinate with his staff. SJR 15 was HELD in committee. COCHAIR PEARCE brought up supplemental requests and asked budget subcommittee chairs to bring their suggestions to her within the next two days because it was her hope to have a draft version of the supplemental by the end of the week. There followed general discussion regarding priority projects in the Department of Corrections. ADJOURNMENT The meeting was adjourned at approximately 9:55 A.M.