SENATE JUDICIARY COMMITTEE March 26, 1999 1:42 p.m. MEMBERS PRESENT Senator Robin Taylor, Chairman Senator Rick Halford, Vice-Chairman Senator Dave Donley Senator Johnny Ellis MEMBERS ABSENT Senator John Torgerson COMMITTEE CALENDAR SENATE BILL NO. 96 "An Act relating to access to criminal history records and to revocation of or failure to renew certain licenses based on criminal conduct or alleged criminal conduct; and providing for an effective date." -HEARD AND HELD PREVIOUS SENATE COMMITTEE ACTION SB 96 - See Judiciary Committee minutes dated 3-15-99, 3-17-99 and 3-24-99. WITNESS REGISTER Mr. Jerry Luckhaupt, Legislative Counsel Legislative Legal and Research Services 130 Seward Street, suite 409 Juneau, AK 99801-2105 POSITION STATEMENT: Offered testimony on SB 96 Ms. Jane Demmert, Executive Director Alaska Commission on Aging PO Box 110209 Juneau, AK 99811-0209 POSITION STATEMENT: Commented on SB 96 ACTION NARRATIVE TAPE 99-22, SIDE A Number 001 CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to order at 1:42 and announced CSSB 96 would be the only order of business. CSSB 96-ACCESS TO CRIMINAL HISTORY RECORDS CHAIRMAN TAYLOR explained SB 96 had been heard before and Senator Torgerson had some concerns about the range of crimes that would be covered by the bill. Number 022 MR. JERRY LUCKHAUPT, Legislative Legal Counsel, came forward to explain the changes contained in the work draft before the committee. Section 1 has been changed to accommodate Senator Torgerson's concerns about the crime of mooning, attempted mooning, and solicitation and conspiracy to commit mooning. These crimes are no longer covered in the definition of "serious crimes" used in the bill, though the rest of the work draft is the same as the previous committee substitute. CHAIRMAN TAYLOR asked if the bill still includes charges that do not involve actual convictions. MR. LUCKHAUPT replied he had only changed the definition of serious offenses in the bill, in response to Senator Torgerson's concerns. He explained some sections of the bill still include both past or present charges, as well as indictment or presentment of a crime, and in some cases a judgement of not guilty by reason of insanity. MR. LUCKHAUPT said the statutes the bill refers to are so muddled, "I reached a point where I didn't know what to do . . . because the statutes, specifically in A.S. 47.35 are totally contradictory to each other." The statutes do not specify what convictions prohibit a person from receiving a licence, and MR. LUCKHAUPT remarked, "I just can't see right now, how the Department can actually grant licences or revoke licences, because the statutes are so contradictory . . . any action they take will violate one of the statutes." He recommended the committee determine the intent of AS 47.35, and SENATOR HALFORD said, "Time for a 'repealed and reenacted to read', or 'notwithstanding any other provision in law'." Number 157 MR. LUCKHAUPT said there are five different approaches in the current statutes; he suggested the committee could select one and he could draft the rest to be consistent with it. SENATOR HALFORD suggested the committee look at the elements of crimes they want covered. He stated he would like to see a person allowed to get a licence if they successfully defend themselves against a charge. He understands a temporary suspension for consideration of a charge, but does not think a licence should not be granted or should be revoked for a mere charge, indictment or presentment of a crime. SENATOR HALFORD concluded the standard should be the same for the issuance, renewal, and revocation of a licence. Number 180 CHAIRMAN TAYLOR said he feels a rewrite of the statute is necessary. The Department has had to enact regulations on all these statutes and they must also be conflicting and convoluted. Additionally, the Department has had a policy shift toward placing more children in foster homes and the result of this increased workload can be deadly for kids being placed in inappropriate homes. CHAIRMAN TAYLOR said these social workers are not evil or malicious, but overwhelmed. He expressed appreciation to MR. LUCKHAUPT for identifying these problems. MR. LUCKHAUPT said two of these statutes were enacted only last year and the rest of the statute has been amended within the past three years. He said some of these bills had been "rushed through" Legislative Legal and they have not been able to adequately review the bills they have drafted. CHAIRMAN TAYLOR asked MR. LUCKHAUPT how the committee should proceed. He asked what kind of direction MR. LUCKHAUPT needs to construct a consistent framework with which to shape these statutes. He said the policy questions would be relatively easy to make, the difficulty would be fleshing out the statutes and correcting all the inconsistencies. Number 237 MR. LUCKHAUPT said the most recent legislative statement suggests charges should be included, and judgements of not guilty by reason of insanity should equate to a conviction. Additionally, it does not treat a Suspended Imposition of Sentence (SIS) as a conviction. SENATOR HALFORD insisted that a SIS is, in fact, a conviction. MR. LUCKHAUPT clarified for this purpose a conviction requires both a judgement and a sentence and there could be a case made against a SIS as a conviction. He said the state has won cases like this in court, "but, you never know what is going to happen when those cases go up higher through the court system." MR. LUCKHAUPT asked the committee to cooperate with the Department of Health and Social Services, look at the offenses listed in AS 47.35.047 and choose those they would like retain. Number 272 SENATOR HALFORD said he agreed with everything MR. LUCKHAUPT had said. He mentioned the right affected by this bill is the right to take children into foster care for the state. This is not a constitutional right and does not have to be protected in the same manner, nor to the same degree. Generally, he would say a right or a privilege should never be taken away without a conviction, but in this case he wondered if sometimes charges should be considered since certain charges are difficult to prove. A prosecutor may not be able to reach the reasonable doubt conviction standard in cases where something is clearly wrong. The Department should have some discretion in this area. CHAIRMAN TAYLOR agreed, saying this is a significant privilege. He added that even known pedophiles are usually not convicted until they have been charged several times, and sometimes they are only convicted in a civil trial using the preponderance of the evidence standard. He concluded, "There has to be a way to provide at least some discretionary opportunity to the person granting the licence to look at those things . . . " MR. LUCKHAUPT provided examples of people who have not been convicted of crimes and yet are not fit parents for children. He believes the current statute is broadly worded for just that reason, and allows the Department some measure of discretion. Number 353 SENATOR ELLIS asked if the chairman wanted to untangle this issue this legislative session. CHAIRMAN TAYLOR replied initially, he wanted to give the Department some guidance in relation to background checks. He said now he would like to refer SB 96 to a subcommittee and, with the help of the Department, see if they couldn't get it across the floor this session. SENATOR ELLIS reminded everyone the bill deals with the care of vulnerable adults as well as children. MR. LUCKHAUPT mentioned he had only changed the bill as it related to an old reference to crime, he had not made other changes. MR. LUCKHAUPT said he does not usually draft legislation in this field. CHAIRMAN TAYLOR confirmed, "We'd like you to stay with this one." MR. LUCKHAUPT said it is an issue that is important enough to be dealt with this session. He worries about what might happen if a suit is brought against the state regarding the issuance, revocation or failure to revoke a licence. He suggested the Legislature and the Department choose the approach they would like to take and put it on paper. CHAIRMAN TAYLOR replied his staff would be available to MR. LUCKHAUPT anytime, and he invited other members and their staff to work on the issue also. MS. JANE DEMMERT, Executive Director of the Alaska Commission on Aging, expressed concern about sections 5 and 6 of the bill. She believes these sections will mandate that her agency review background checks. Currently, grantees or sponsors, as a condition of receiving a grant, are required to review the information obtained through the background check and report it to the Commission. MS. DEMMERT would prefer the grantees continue to do the review. Number 420 CHAIRMAN TAYLOR asked MR. LUCKHAUPT if he could incorporate this change into the legislation and MR. LUCKHAUPT replied, "That's a problem." He explained it is his understanding that national records obtained for licencing or review can only be released to the Department of Public Safety (DPS). MS. DEMMERT thought that any check that returns no result can be routed through to the Commission, and only those returning information need to be directed to DPS. MR. LUCKHAUPT believed that approach might work, and noted it does not violate section 5 or 6 of the bill. He said this process is similar to what other agencies currently do, but he emphasized if any type of record is returned, it must go directly to DPS. CHAIRMAN TAYLOR asked MR. LUCKHAUPT to double check on the acceptability of this process. Number 476 CHAIRMAN TAYLOR commented that we now have a technologically advanced Insta-check system for gun purchases, but no way to check on people who want to house foster children in their home. CHAIRMAN TAYLOR asked if there were other witnesses wishing to testify on SB 96. Hearing none, and having no further business to come before the committee, CHAIRMAN TAYLOR adjourned the meeting at 2:19 p.m.