SENATE JUDICIARY COMMITTEE March 29, 2000 1:54 p.m. MEMBERS PRESENT Senator Robin Taylor, Chairman Senator Dave Donley Senator John Torgerson Senator Johnny Ellis MEMBERS ABSENT Senator Rick Halford, Vice-Chairman COMMITTEE CALENDAR SENATE BILL NO. 294 "An Act relating to the possession of concealed handguns and to concealed handgun permits." -HEARD AND HELD SENATE JOINT RESOLUTION NO. 15 Proposing amendments to the Constitution of the State of Alaska relating to the appointment and confirmation of supreme court justices and superior court judges and to approval or rejection of justices and judges during certain general elections. -HEARD AND HELD SENATE BILL NO. 233 "An Act relating to priorities, claims, and liens for payment for certain medical services provided to medical assistance recipients; and providing for an effective date." -HEARD AND HELD PREVIOUS SENATE COMMITTEE ACTION SB 294 - No previous action to report. SJR 15 - No previous action to report. SB 233 - See HESS minutes dated 2/16/00. WITNESS REGISTER Mr. Jim Pound Staff to Senator Taylor State Capitol Building Juneau, Alaska 99801 POSITION STATEMENT: Presented SB 294 Mr. Victor Gunn 1711 Glacier Highway Juneau, Alaska 99801 POSITION STATEMENT: Supports SB 294 Mr. Mike Pauley Staff to Senator Leman State Capitol Building Juneau, Alaska 99801 POSITION STATEMENT: Testified on SJR 15 Mr. Jon Sherwood Department of Health and Social Services Division of Medical Assistance PO Box 110601 Juneau, Alaska 99811-0601 POSITION STATEMENT: Testified on SB 233 Mr. Tom Boutin Box 35116 Juneau, Alaska 99811 POSITION STATEMENT: Supports on SB 294 Mr. Brian Judy National Rifle Association Address not furnished Sacramento, California POSITION STATEMENT: Supports SB 294 Ms. Janie Wineinger National Rifle Association Address not furnished Wasilla, Alaska POSITION STATEMENT: Supports SB 294 Ms. Lauree Hugonin 130 Seward, Room 209 Juneau, Alaska 99801 POSITION STATEMENT: Opposed to SB 294 Mr. Elzie Isley Address not furnished Ketchikan, Alaska 99901 POSITION STATEMENT: Supports SB 294 Lieutenant David Ray Hudson Department of Public Safety Alaska State Troopers 5700 East Tudor Road Anchorage, Alaska 99501 POSITION STATEMENT: Supports SB 294 Mr. Duane Udland 4501 South Bragaw Anchorage, Alaska 99508 POSITION STATEMENT: Supports SB 294 Mr. Pat Johnson 54540 East End Road Homer, Alaska 99603 POSITION STATEMENT: Supports SB 294 Ms. Stephanie Cole Alaska Court System 303 K Street Anchorage, Alaska 99501 POSITION STATEMENT: Opposes SJR 15 Mr. Bill Cotton Alaska Judicial Council 1029 West 3rd, Suite 201 Anchorage, Alaska 99501 POSITION STATEMENT: Opposes SJR 15 Justice Jay Rabinowitz PO Box 22528 Juneau, Alaska 99802 POSITION STATEMENT: Testified on SJR 15 Mr. Les Gara 1242 West 10th Avenue Anchorage, Alaska 99501 POSITION STATEMENT: Opposes SJR 15 Mr. David Bundy 911 West 8th Avenue Anchorage, Alaska 99501 POSITION STATEMENT: Opposes SJR 15 ACTION NARRATIVE TAPE 00-17, SIDE A Number 001 CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to order at 1:54 p.m. Present were SENATOR TORGERSON, SENATOR HALFORD AND CHAIRMAN TAYLOR. The first order of business to come before the committee was SB 294. SB 294-CONCEALED HANDGUN PERMIT AMENDMENTS MR. JIM POUND, staff to Chairman Taylor, made the following comments: Alaska's concealed carry law has been one of the most successful programs in the United States. That success is based, in part, on the original intent of the legislation to allow only knowledgeable, law-abiding citizens to obtain state permits to carry concealed handguns. Although the program has been successful, there are several recurring problems with the implementation and management of the program. CSSB 294 proposes statutory changes to improve and streamline the process to obtain and renew a concealed handgun permit. Applicants will no longer be required to have a sworn application; permit holders will be allowed to submit their renewal applications 60 days prior to expiration, allowing more time to complete the renewal process before the expiration date; a new photograph will be required every seven years, instead of every five years as required now and additional thumb prints will no longer be required during the renewal process. The bill also makes changes to some of the training and education statutes, streamlining the process and making reciprocity with other states easier. An applicant will be required to provide evidence of completion of a handgun or firearms safety course, but it will eliminate the more subjective requirement by eliminating the specific statutory definition of "competence," which is causing problems with reciprocity in other states. Alaska State Troopers will be authorized by statute to help teach handgun courses, which may generate additional revenue. CSSB 294 makes the statute apply equally to all citizens statewide and clarifies the standards for recognition of permits from other states. SENATOR DONLEY moved to adopt the proposed committee substitute for SB 294, work draft 1-LS1543\G, Luckhaupt, dated 3/24/00. There being no objection, CSSB 294 was adopted as the working draft. MR. VICTOR GUNN, speaking on his own behalf as a retired deputy chief of police, said he endorses all of the changes encompassed in CSSB 294. There is pending federal legislation that will allow law enforcement officers to carry concealed handguns out of their jurisdiction, it also allows qualified retired law enforcement officers the opportunity to carry concealed handguns without a permit. Mr. Gunn suggested the committee incorporate some of this language into a conceptual amendment for CSSB 294. Number 423 SENATOR DONLEY said he does not support allowing retired law enforcement officers the opportunity to carry a concealed handgun without a permit, but he does not have a problem with active law enforcement officers carrying concealed handguns. MR. GUNN responded that retired police officers have had a tremendous amount of firearm and classroom experience on the use of deadly force, and while on the job they are required to qualify annually, at a minimum. CHAIRMAN TAYLOR moved the conceptual amendment to allow existing law enforcement officers to carry concealed handguns. There being no objection, the conceptual amendment was adopted. CHAIRMAN TAYLOR also expressed his concern about retired police officers not having background checks before being given a permit. CHAIRMAN TAYLOR announced he would like to adopt the committee substitutes for SJR 15 and SB 233 before committee members had to leave for other meetings, so CSSB 294 was set aside until later in the meeting. SJR 15-CONST. AM: APPOINTMENT OF JUDGES MR. MIKE PAULEY, staff aid to Senator Leman, stated there have been several legislative proposals over the last several years to reform Alaska's judiciary, and while they have varied in the particulars, all of the reform proposals have stemmed from the common premise that the Alaska judicial system is broken. The problem is that there are judges who are not interpreting the law, but actually writing the law. They are examining the laws of the constitution not on the basis of original intent or long standing legal tradition but based on personal bias. Many Alaskans have taken comfort in the fact that erroneous decisions can be overridden through the process of a constitutional amendment. However, that process was significantly undermined in the Bess v Ulmer decision in which the court prevented Alaskans from voting on a constitutional amendment and edited the language of another. MR. PAULEY said the amendment before the committee proposes modest changes to the judicial selection process. It expands the pool of talent from which the governor can make appointments to fill judicial vacancies. It will require legislative confirmation of judicial nominees, and it will provide for more frequent retention elections. MR. PAULEY commented that SJR 15 takes a small step towards restoring a system of checks and balances among the three branches of government. The need for this is reflected in a comment by the twelfth chief justice of the U.S. Supreme Court, Harlan Fiske Stone, who lived from 1872 to 1946. Justice Stone observed, "While unconstitutional exercise of power by the executive or legislative branches of the government is subject to judicial restraint, the only check on our own exercise of power is own sense of self restraint." CHAIRMAN TAYLOR commented that the CS only speaks to retention elections and not an expansion of the pool from which Mr. Pauley is speaking. Number 823 MR. PAULEY clarified he was speaking to the original bill because the committee had not adopted the CS. SENATOR DONLEY moved to adopt CSSJR 15, version 1-LS0596\G, Luckhaupt, dated 3/17/00, having the supreme court subject to retention elections every six years and the superior court subject to retention elections every four years. There being no objection, CSSJR 15am was adopted. SB 233-MEDICAL ASSISTANCE:LIENS & CLAIMS SENATOR TORGERSON moved to adopt CSSB 233(JUD), 1-GS2058\D, Lauterbach, dated 3/28/00. There being no objection, CSSB 233(JUD) was adopted. Number 927 MR. JOHN SHERWOOD, Department of Health and Social Services (DHSS), stated this bill will make two improvements to the medical assistance statute. It will extend the length of time for providers who have claims for services to Medicaid recipients--from six months to one year. The statute will also allow, if a good cause is found, for filing after the deadline to pay the full amount of the claim instead of 50% of the claim. The bill will also improve DHSS's ability to recover against third parties where medical care has been paid for a Medicaid recipient, and then the Medicaid recipient engages in litigation against the insurance company or similar defendant. SB 233 gives DHSS the right to put a lien against these settlements. CHAIRMAN TAYLOR noted that now that the committee substitutes have been adopted and some committee members have left for other meetings, he alone will hear testimony for the three bills before the committee. Number 1066 SB 294-CONCEALED HANDGUN PERMIT AMENDMENTS MR. TOM BOUTIN, speaking for himself, stated that this is an excellent program. Wherever concealed carry has been reviewed, it has been found to lower the crime rate, and Alaska's program has worked at least as well as any other state. Mr. Boutin stated he supports SB 294. Number 1133 MR. BRIAN JUDY, Alaska State Liaison for the National Rifle Association (NRA), stated he is speaking on behalf of the more than 20,000 members of the Alaska NRA. Mr. Judy made the following comments: The NRA agrees with all of the changes in CSSB 294 and likes the fact that more out-of-state permits will be recognized in Alaska. A permit holder from another state who is 21 years of age and legally able to own a handgun and who has passed a finger print based background check and who has completed a handgun or firearm safety course will qualify. The NRA believes the municipal opt-out provision is unconstitutional and should be deleted. CHAIRMAN TAYLOR asked if he is suggesting the committee add language to the bill in the form of an amendment. MR. JUDY responded no, the language in the current CS takes away from municipalities the ability to put on the ballot and opt-out of the concealed weapon permit law, which is consistent with the state constitution. This is a provision that was virtually unused--only one community has attempted to opt-out. MR. JUDY noted that the NRA supports deleting the competency requirement. Number 1420 SENATOR DONLEY asked how long the CCW permits are good for now. MR. JUDY responded they are good for five years under existing law. MS. JANIE WINEIGER, field representative for the NRA, commented she is an instructor for the NRA and has had many calls concerning some of the needed changes. Alaska residents want to know what the law is and how it applies and they want to know what agreement Alaska has with other states. As an instructor she needs clear, concise information to pass on to permit holders in state and out of state. States that grant reciprocity need to be listed, and the permits and licensing department needs to update the web site accordingly. The demonstration of competency with caliber and action types is not needed--live fire is always part of the course curriculum. The issuance of permits has been critically slow and the process needs to be streamlined so people can receive their permits in a timely manner. Ms. Wineiger supports CSSB 294. Number 1570 MS. LAUREE HUGONIN, Director of the Alaska Network on Domestic Violence and Sexual Assault, stated she is glad she does not often have to come before the committee in opposition to a bill. The Network is opposed to the changes in CSSB 294, especially the seven year time limit for the photo--a persons appearance can change within a matter of months, let alone seven years. The Network does not want the demonstration of competency with specific action type and caliber removed from the permit process, and they feel it is important to give communities the opportunity to opt-out--people should be able to decide how they want their community to be. Number 1681 MR. ELZIE ISLEY, representing himself, stated he thinks SB 294 is a wonderful bill. Number 1709 LIEUTENANT DAVID HUDSON, Department of Public Safety (DPS), stated DPS appreciates what the committee has done to help benefit the program. Lieutenant Hudson suggests that "at least as strict" should be removed completely from the statute. Language can be added that says a person holding a valid permit to carry a concealed handgun from another state and with a signed statement from an authorized representative of that state saying they will accept an Alaska concealed handgun permit, that Alaska will reciprocate by taking that state's permit. LIEUTENANT HUDSON said that rather than change the competency requirement and a couple of issues concerning misdemeanors, if the reciprocal agreement is signed at the level of permit managers, Alaskan's could be allowed to carry firearms with their concealed handgun permit in other states. Lieutenant Hudson said he supports changing the renewal process allowing applicants to file for a permit renewal up to 60 days after the expiration of their permit. He also thinks that eliminating the thumbprint on the renewal is an excellent idea. LIEUTENANT HUDSON stated he is confused about the photograph issue. The CS indicates that if a person has had a permit for five years, when applying for a renewal they can provide a photograph that was taken two years before they applied for their initial permit. The whole idea of a photograph is to allow for the change in a persons appearance. LIEUTENANT HUDSON said that changing the law from perjury to unsworn falsification fits in with the Title 28 vehicle laws. Not needing a notarized signature will save people money and make the process more convenient. Number 1982 CHAIRMAN TAYLOR asked what is required now for a drivers license photograph. LIEUTENANT HUDSON responded a photograph is good for a maximum of ten years by allowing a sticker to put on the back of the license in lieu of updating the photograph. MR. DUANE UDLAND, representing the Alaska Association of Chiefs of Police, said the Association has a problem with some of the language in the bill. On page 4, section 6, it appears that a permit can no longer be revoked for false information, and the Association feels that losing a permit should be an option. Another problem is on page 7, section 12(a)(2), "crimes against a person" is the only misdemeanor that counts--burglaries and thefts should be considered for screening with the possible outcome of a denied permit. CHAIRMAN TAYLOR noted that some of Mr. Udlands concerns have been addressed in CSSB 294. MR. PAT JOHNSON, a member of the NRA and a concealed carry instructor in Homer, said, overall, he thinks CSSB 294 is a good bill. He likes Lieutenant Hudson's suggestion for reciprocity as it is a continuing problem. He said that 95% of his students do not need competency testing because students do a lot of dry firing during a course, and he will not sign off on a certificate if he does not like someone's attitude or if they do not have the ability to fire a gun safely. SJR 15-CONST. AM: APPOINTMENT OF JUDGES MS. STEPHANIE COLE, Administrative Director for the Alaska Court System, said the retention system that is currently in place in Alaska is often cited as a national model--a model that balances judicial accountability against judicial independence preserving a judge's ability to make decisions impartially against the public's very important right to hold judges accountable. Judicial accountability is a concern to the legislature and also to the court. When talking about judicial accountability there are three types of accountability--political, decisional and behavioral. Political accountability is what is accomplished through a retention election, where the public can either approve or remove a judge. Decisional accountability is related to the issue of whether a judge, in a particular case, is correct or incorrect-- this type of accountability usually comes through the appellate process. Behavioral accountability is involved when dealing with judicial misconduct--primarily this is accomplished through the judicial discipline system. Shortening the retention period, that is proposed in the CS, creates a situation where the line between political accountability and decisional accountability start to blur, much to the detriment of the justice system. The period between judicial retention elections in Alaska is very middle of the road, they are in the middle of where most merit selections are. If the retention periods are shortened there will be a situation where judges are under increased pressure to rule in accord with the current political or public atmosphere. The whole system of government is set up to avoid this from happening. An important obligation of a judge is to preserve and protect the rights of the minority against which the will of the majority should never be able to prevail. By shortening retention periods, it is more likely that political campaigns will be waged against individual judges because of an unpopular decision. Tape 00-17, Side B MS. COLE said that deciding high profile cases is a difficult thing for judges to do at any time but it is especially difficult when a judge is facing an eminent retention election. The court feels it would be a backward step to increase the frequency of retention elections. More frequent campaigns against judges up for election is a predictable effect, and as campaigns are mounted against judges it can be expected that judges can and will mount counter campaigns. Judicial fund raising and campaigning is becoming a national issue in this country and it brings in the issue of a judges neutrality. Only a few cases become controversial, and judges need to be evaluated at regular paced intervals on how they are handling all of their cases not just the highly visible cases. MS. COLE commented that aside from judicial independence concerns, shortening the period between retention elections will have the effect of de-qualifying the qualified applicants seeking judicial positions. It will be harder to hold onto qualified people because their job security is less certain with more frequent retention elections. Ms. Cole read a quote by Edward Madiera, Chairman for the ABA's Commission on Separation of Powers and Judicial Independence: "Judicial independence is not for the protection of judges, but for the protection of the public." The judicial system feels that protecting the structural integrity of the system is paramount, and this resolution should not move forward. Number 2242 MR. BILL COTTON, Director for the Judicial Council, stated that the Judicial Council is an independent agency in the judicial branch of government. They participate in the selection of a judge and the evaluation of a judge who is up for retention. After this process, they make their recommendations and information known to the public. The Judicial Council's job is to try to assure as much excellence in the judicial branch and the judiciary as specifically as it can. This involves balancing judicial accountability and judicial independence. The Alaska Judicial Council does a more thorough evaluation of judges and makes more information public than any other state in the country. Alaska is a model for other states. The Judicial Council conducts surveys of police officers, attorneys, jurists, child protection workers, etc. This oversight tends to keep judges more responsive to the electorate. One of the basic principles this country was founded on is judicial independence--citizens constitutional rights need to be protected even if the powers that be would like a constitutional amendment forgotten. The Council opposes shortening the retention term because it believes the balance of judicial accountability will be upset. It will be harder to get applicants, and it is critical to get quality applicants. By decreasing the stability of the job, there will be less incentive for quality private practitioners to apply for these positions. Costs will be increased in terms of the state budget, and putting more judges on the ballot will decrease the focus that the council and the electorate will bring against individual judges. Superior court judges are up once every six years and the judicial council does a preliminary evaluation two years before that. There is also an attorney and peace officer survey done twice every six years. Number 2062 JUSTICE JAY RABINOWITZ commented that what the constitutional framers of the Alaska constitution intended has been identified and highlighted by his two colleagues. In his view, the Alaska constitution is a brilliant compromise between the federal system, the elected system and the merit system, and the system is not broken. Alaska's judicial system has been corruption free in terms of the judges performance of his or her judicial duty, this is a tribute to the Judicial Council's screening and in the care they take in the selection process. Now that the CS is in place, Judge Stewart feels many of his remarks may be redundant, but he does feel the system has worked well. JUSTICE RABINOWITZ commented that talented lawyers without political power and old family connections have been attracted to Alaska's judicial system. This is a philosophy of the west, if a person has talent they can apply for and obtain a judicial position--an individual can control their destiny to a large extent. This is the brilliance of Alaska's founding fathers, a compromise between an elected system and merit retention. The electoral electorate gets more information from the performance of judges than any other political entity in the country. An educated electorate is what is wanted and that is what Alaska is getting. JUSTICE RABINOWITZ noted there is a movement to truncate the retention period but initially a person in a judicial position has to run within three years, causing a speedy evaluation and analysis of the judicial officers performance. The stress on judges is warranted because it is a trade off between merit selection and accountability. He congratulated the committee on adopting the CS and encouraged the legislature to keep the system as it is. Number 1739 MR. LES GARA, an attorney in private practice in Anchorage, commented that he echoes what Judge Rabinowitz had to say, and before the legislature decides to disrupt the compromise that the constitutional convention made, he urges the committee to look at what the drafters of the Alaska constitution debated and why they decided to adopt the system they did. Mr. Gara quoted Mr. Ed Davis who was a delegate of the constitutional convention in 1955, "All of us here want an independent judiciary, a judiciary that will not be swayed by public will at any particular moment. A judiciary that will not be subject to any political pressure. We've taken the best means devised yet, to appoint and select qualified judges and to keep judges free from outside political pressures and to get rid of judges who are not able to properly do their job." The constitutional convention looked at all of the competing proposals of the time and they reached a compromise that has worked very well. Mr. Gara is happy the committee decided to drop the other provisions of SJR 15, but the remaining provisions also increase the amount of public pressure on the judiciary beyond what the delegates in 1955 agreed to and thought was appropriate. Mr. Gara addressed the statement made by Mr. Pauley of Senator Lemans office that, "what we have here is a system that is broken, that has judges bringing in their political biases and their personal biases--deciding cases on their personal biases." This is not what happens. One of decisions that spurred the bill prior to SJR 15 was a decision by Judge Michalski in Anchorage that lent some support to the idea that maybe homosexual marriage was legal under Alaska law. Judge Michalski decided the case based upon what he believed the law was, he did not decide the case based on his personal biases, he based the case on what he thought the law required. MR. GARA said when a political issue is being debated, there should be a politically biased decision--the legislature debates politics. In court a case should not be decided by a judge who bases the case on how the decision will look in the newspaper the next day. Judges need to consider the law and all of the facts, but by increasing the number of retention elections judges will be encouraged to issue sound bite decisions. Number 1477 MR. DAVID BUNDY, attorney and member of the Board of Governors for the Alaska Bar Association, stated the legislature should adopt the resolution that is currently proposed. There is no reason to shorten retention terms for members of the judiciary. The system has worked well and the impetus to change it is "wrongly headed." It is the nature of the advisory process that there will always be unhappy litigants and members of the public who object to decisions. This does not say that judges are not doing their job, it says that judges are doing their job because they are deciding difficult issues on which people have strong feelings. It is the duty of the judicial department to say what the law is. Subjecting judges to elections in which they will have to engage in fund raising is undesirable in the extreme because the only people who will contribute money to judicial candidates are lawyers. Judges need to be independent of organized interest groups and organized political groups. There being no further business to come before the committee, CHAIRMAN TAYLOR adjourned the meeting at 3:11 p.m.