Legislature(2003 - 2004)

04/16/2003 08:15 AM House JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
SB 45 - LB&A CRIMES AND COOPERATION                                                                                           
Number 0039                                                                                                                     
CHAIR McGUIRE  announced that  the first  order of business  would                                                              
be  CS FOR  SENATE  BILL  NO. 45(JUD),  "An  Act relating  to  the                                                              
Legislative Budget and Audit Committee."                                                                                        
Number 0044                                                                                                                     
SENATOR  LYDA  GREEN, Alaska  State  Legislature,  sponsor,  noted                                                              
that current  law provides that  the Legislative Budget  and Audit                                                              
Committee  has  the  power  to require  all  state  officials  and                                                              
agencies  of state  government  to give  full  cooperation to  the                                                              
Legislative   Budget  and   Audit  Committee   or  its  staff   in                                                              
assembling and  furnishing requested information.   Unfortunately,                                                              
the current  law is  unenforceable, she  opined, because  it lacks                                                              
penalties  for  those  who  are   uncooperative  or  who  seek  to                                                              
undermine   the  work  of   the  Legislative   Budget  and   Audit                                                              
Committee.    Therefore,  the  purpose  of SB  45  is  to  provide                                                              
prosecutors  with the necessary  tools to  deter and punish  those                                                              
who hinder  the investigative work  of the Legislative  Budget and                                                              
Audit  Committee.   The proposed  legislation  also clarifies  the                                                              
process by  which privilege  is claimed and  the process  by which                                                              
it is determined, she added.                                                                                                    
SENATOR  GREEN  posited  that when  the  legislature  created  the                                                              
Legislative  Budget and Audit  Committee,  it was envisioned  that                                                              
it would  have full access to  all information necessary  to carry                                                              
out its  work.  When legislators  request reports from  or reviews                                                              
of  an agency,  it is  important  for the  Legislative Budget  and                                                              
Audit  Committee to  have all the  cooperation  it needs.   Senate                                                              
Bill 45 will ensure  that this occurs.  She noted  that there is a                                                              
proposed   House   committee   substitute   (HCS)   for   members'                                                              
Number 0176                                                                                                                     
REPRESENTATIVE  SAMUELS moved  to adopt  the proposed  HCS for  SB
45, Version  23-LS0205\U,  Luckhaupt, 4/8/03,  as the work  draft.                                                              
There being no objection, Version U was before the committee.                                                                   
REPRESENTATIVE  GARA surmised that  SB 45  was engendered  by some                                                              
circumstance wherein  "things didn't work  out well in  the past,"                                                              
and noted  that he would like  to hear more about  that situation.                                                              
He said  that he  understands the  sponsor's concern and  applauds                                                              
her for trying to  do something about it.  He  mentioned, however,                                                              
that  he  has  a few  concerns  with  [Version  U],  and  directed                                                              
attention to  the top  of page 2,  which describes what  hindering                                                              
the Legislative  Budget and Audit Committee process  would entail.                                                              
He  surmised that  one  could be  convicted  of  hindering if  one                                                              
either  discouraged or  prevented another  from fully  cooperating                                                              
with the process.   He said he is wondering whether  the following                                                              
example would cause someone to be convicted under SB 45:                                                                        
     Legislative  Budget  and  Audit  [Committee]  comes  to,                                                                   
     well, let's  just say, Representative  Samuels's office.                                                                   
     And Representative  Samuels is  working on 30  different                                                                   
     issues and all  of them are priorities to  him including                                                                   
     the  Legislative  Budget  and  Audit issue,  and  so  he                                                                   
     tells  his staff,  "Well, there  are  these three  other                                                                   
     things  that affect  school kids,  that I  have to  deal                                                                   
     with  right now; put  the Legislative  Budget and  Audit                                                                   
     thing fifth  in line."  And  it takes an extra  week for                                                                   
     him  to get the  information to  Legislative Budget  and                                                                   
     Audit.   Has he  discouraged or  prevented another  from                                                                   
     giving  full  cooperation to  the  legislative  auditor?                                                                   
     It  seems like  full  cooperation would  mean  immediate                                                                   
     cooperation, and  it seems like he would  have committed                                                                   
     a crime.                                                                                                                   
SENATOR  GREEN  noted  that  the   term  "full  cooperation  "  is                                                              
currently in  statute - AS  24.20.201 - regarding  the Legislative                                                              
Budget and  Audit Committee; thus  that term is  merely replicated                                                              
in Version U.   With regard to Representative  Gara's example, she                                                              
suggested  that had  it referred  to  a state  agency rather  than                                                              
another   legislator,  it   would   be  more   pertinent  to   the                                                              
discussion.   She  opined that  the  intention is  to ensure  that                                                              
requested  information is  forthcoming, and  noted that a  failure                                                              
to  provide full  cooperation  must  rise to  a  certain level  in                                                              
order  to be  prosecuted.   It can't  be,  "Oh, I  think you  have                                                              
hindered  me,  therefore, ...  I'm  going  to penalize  you,"  she                                                              
assured  members,  adding  that the  requested  information,  once                                                              
received, goes through a process.                                                                                               
REPRESENTATIVE   GARA  remarked   that   almost  all   prosecutors                                                              
prosecute   the   law  blindly;   however,   since,   as  in   all                                                              
professions,  there is  the possibility  of there  being "one  bad                                                              
apple," it  is the legislature's  job to  ensure that there  is no                                                              
room for  abuse in  the legislation  it passes.   The term,  "full                                                              
cooperation", he  opined, could leave  room for a  prosecutor with                                                              
a politically  motivated agenda to  abuse the law by  portraying a                                                              
situation such  as he used in  his example as not  providing "full                                                              
cooperation".   He  pondered whether  changing the  term to  "good                                                              
faith  cooperation",   or  something  similar,  would   allay  his                                                              
concern  and  still achieve  the  sponsor's  goal.   He  said  his                                                              
concern  is   that  "full  cooperation"   says  that   95  percent                                                              
cooperation  or  really-good-but-not-full   cooperation  would  be                                                              
prosecutable under Version U.                                                                                                   
Number 0635                                                                                                                     
PAT  DAVIDSON,   Legislative  Auditor,  Division   of  Legislative                                                              
Audit,  Alaska State  Legislature, explained  that "hindering"  as                                                              
used in  the bill  refers to a  failure to  comply with  a request                                                              
from the  legislative auditor or  the legislative  fiscal analyst.                                                              
The  language doesn't  refer to  either  her staff  or the  fiscal                                                              
analyst's  staff  being  hindered;  if her  or  her  counterpart's                                                              
staff  is  hindered, "they  move  it  up  the chain  of  command."                                                              
Thus,  if  either  the  legislative  auditor  or  the  legislative                                                              
fiscal  analyst has  had to  request information  from an  agency,                                                              
"it  has already  gone through  the  chain of  command, and  we've                                                              
already decided  that this is  critical information  to completing                                                              
an audit"  or analysis.  She  opined that the language  in Version                                                              
U  ensures that  at least  a couple  of  internal processes  would                                                              
have   already  taken   place  before   someone   is  subject   to                                                              
prosecution and penalties.                                                                                                      
REPRESENTATIVE GARA replied:                                                                                                    
     I   completely   understand   that  [the   Division   of                                                                   
     Legislative Audit]  doesn't intend to have  this statute                                                                   
     enforced  abusively, but  if  we allow  the language  to                                                                   
     allow a  future person at  [the Division of  Legislative                                                                   
     Audit]  to have  the  statute enforced  abusively,  then                                                                   
     we've  now created  mischief  in the  statutes.   So,  I                                                                   
     understand  that  you  have circumstances  in  the  past                                                                   
     that you're  trying to address,  and that you  currently                                                                   
     do  your job very  well, and  I think  [the Division  of                                                                   
     Legislative  Audit]  does  a  great job;  ...  I'm  just                                                                   
     concerned  about  passing  a  statute  that  allows  for                                                                   
     mischief in the future.                                                                                                    
REPRESENTATIVE  OGG, turning  to Section  2 of  Version U,  opined                                                              
that  it  reads   awkwardly,  and  suggested  that   it  could  be                                                              
clarified a little bit.                                                                                                         
Number 0819                                                                                                                     
STEPHEN BRANCHFLOWER,  Director, Office of Victims'  Rights (OVR),                                                              
Alaska  State  Legislature,  referred   to  Representative  Gara's                                                              
concern  regarding "full  cooperation",  and said  that given  his                                                              
background  as   a  prosecutor,  he  understands   completely  the                                                              
concern that  someone bent  on mischief  could cause mischief  via                                                              
the  language  currently  being  used.    He  suggested  that  one                                                              
solution would  be to change the  culpable mental state  - page 2,                                                              
line  1   -  from  "knowingly"   to  "intentionally",   which,  he                                                              
explained,  requires  a  specific  intent  and is  defined  in  AS                                                              
11.81.900.  He  acknowledged that another solution would  be to do                                                              
as  Representative Gara  suggests,  change  "full cooperation"  to                                                              
"good faith cooperation".                                                                                                       
MR.  BRANCHFLOWER   said  that  SB  45  is  intended   to  address                                                              
situations  in  which  a  supervisor   directs  a  subordinate  to                                                              
disregard  requests   from  the   Legislative  Budget   and  Audit                                                              
Committee or only provide partial compliance.  He elaborated:                                                                   
     I have  seen that  in my career,  am aware of  instances                                                                   
     where that  has occurred,  and, as a  result of  such an                                                                   
     order,   information   was   not  provided.      It   is                                                                   
     particularly  bad  when  the   person  to  whom  such  a                                                                   
     direction is  made is an exempt employee or  a partially                                                                   
     exempt  employee.  And,  of course,  all lawyers  within                                                                   
     the  Department of Law  are partially  exempt, so  those                                                                   
     are the people  who are oftentimes aware  of information                                                                   
     that would  be of great  use to the [Legislative  Budget                                                                   
     and Audit Committee] or the fiscal analyst.                                                                                
MR. BRANCHFLOWER  noted that  the penalty  for noncompliance  is a                                                              
class B  misdemeanor, and  that one of  the consequences  of being                                                              
convicted is that  the person immediately looses  his/her position                                                              
and is not eligible  for rehire.  He opined that  this consequence                                                              
provides a  great disincentive  to violate  the statute,  and puts                                                              
teeth into the current statute.                                                                                                 
MR.  BRANCHFLOWER  then  addressed  Representative  Ogg's  concern                                                              
regarding the language  on page 2, line 17.   He acknowledged that                                                              
the language  is a little cumbersome  and indefinite, and  that it                                                              
could probably  be smoothed out.   He said  that the intent  of SB
45  is a  good  one, and  that  after looking  in  other areas  of                                                              
statute  to  find language  that  would  put  some teeth  into  AS                                                              
24.20.201, he'd realized  that language would have  to be tailored                                                              
to fit  the specific  situation.   In response  to a question,  he                                                              
confirmed  that   he'd  looked   at  the  statute   pertaining  to                                                              
legislative leadership's  subpoena power, but had  found that that                                                              
particular statute alone would not be sufficient.                                                                               
Number 1076                                                                                                                     
MR.  BRANCHFLOWER  said that  to  his knowledge,  the  Legislative                                                              
Budget and  Audit Committee has  never gone to court  to challenge                                                              
someone's   refusal  to   provide   information.     Proposed   AS                                                              
24.20.201(c) will  provide a mechanism by which  to address claims                                                              
of privilege.   He then mentioned  that AS 39.90.140(3),  which he                                                              
called the  "whistleblower statute," is  also being amended  by SB
45, in  that the definition  of, "matter  of public  concern" will                                                              
now include,  "interference or  any failure  to cooperate  with an                                                              
audit  or other  matter  with  the  authority of  the  Legislative                                                              
Budget  and  Audit Committee".    He  suggested that  this  latter                                                              
change will promote  truth telling by employees who  "have to make                                                              
tough decisions when they're told not to cooperate."                                                                            
REPRESENTATIVE GARA  asked what steps, currently,  the Legislative                                                              
Budget  and Audit  Committee can  take  to force  compliance.   He                                                              
suggested that  if it involves a  court process, then  rather than                                                              
adding  a  criminal  statute, perhaps  that  court  process  could                                                              
simply be expedited.  He also reiterated that he would like to                                                                  
know more about the circumstances which have engendered SB 45.                                                                  
MS. DAVIDSON  explained that  for the most  part, the  Division of                                                              
Legislative Audit  does almost  all of its  work in  the executive                                                              
and judicial  branches of government.   An audit  process involves                                                              
interviewing  agency  people and  reviewing  records;  it is  very                                                              
much an investigative process.  She elaborated:                                                                                 
     Typically   what  happens   is,  when   we  are   denied                                                                   
     information that  we know of -- and that's  part of this                                                                   
     problem:   ...  if  we ask  for something  and  somebody                                                                   
     says, "We  don't have  it," if they're  lying to  us, we                                                                   
     may find  it in other ways,  but then again we  may not.                                                                   
     And  whether that piece  of information  is critical  to                                                                   
     the audit  objective, it  depends upon what  it is.   So                                                                   
     you'll interview  people.  If people don't  want to talk                                                                   
     to you  or they don't want  to give you  the information                                                                   
     -  [for example]  they're claiming  it's confidential  -                                                                   
     ...  we move  it up  the chain  of command.   There's  a                                                                   
     discussion;  we would  involve  the  Department of  Law,                                                                   
     saying   ...,   "Statute    requires   cooperation   and                                                                   
     Legislative   Audit  has  access   to  records   whether                                                                   
     they're  confidential or  not."   And sometimes  they'll                                                                   
     listen  to the  Department  of Law,  and sometimes  they                                                                   
     continue to be stubborn.                                                                                                   
Number 1263                                                                                                                     
     The  Legislative  Budget and  Audit  Committee  actually                                                                   
     does have subpoena  powers; however, if you're  going to                                                                   
     go to a  subpoena, you have to know what  you're looking                                                                   
     for.   And in an audit  process, you can't,  oftentimes,                                                                   
     specifically  identify what  it is  that you're  looking                                                                   
     for,  because  you  want  to   know,  "Has  'this'  ever                                                                   
     happened  or has 'that'  ever happened."   So trying  to                                                                   
     audit  by  subpoena  would be  an  enormously  difficult                                                                   
     process.   And that all  has to do  with whether  or not                                                                   
     you know that you're being denied.                                                                                         
     I  think  that  ...  this  bill  does  ...  two  things.                                                                   
     Number   one,  ...   through  ...   adding  ...   [that]                                                                   
     cooperating  with  Legislative  Audit  is  part  of  the                                                                   
     whistleblower   [statute],  it   provides  comfort   for                                                                   
     employees to  talk to us -  talk to us truthfully.   The                                                                   
     second  thing  that  it  does  is,  it  would  create  a                                                                   
     penalty  for anybody  or  their supervisor's  trying  to                                                                   
     hinder  that cooperation.   And  so what  it does, as  I                                                                   
     look at  the audit process,  is it  is going to  make it                                                                   
     more   efficient,   it's   going   to   make   it   more                                                                   
     streamlined,  and  I  think Mr.  Branchflower  used  the                                                                   
     [term]  "sentinel effect."   It's like,  "Yes, it's  out                                                                   
     there;  yes, you're  going to cooperate;  ... let's  get                                                                   
     through it."                                                                                                               
SENATOR GREEN,  with regard to  the circumstances  that engendered                                                              
SB 45,  said that  a friend  of hers,  whose agency  was asked  to                                                              
supply   information  to   the   Legislative   Budget  and   Audit                                                              
Committee,  was  specifically  told   by  his  supervisor  to  not                                                              
cooperate.   Because this  friend was an  exempt employee  and was                                                              
putting  his credentials  on the  line for lying,  he looked  into                                                              
the  current statute  to see  what  sort of  protections would  be                                                              
available  to him  for  disobeying  that order  and  what sort  of                                                              
penalties  his  supervisor would  be  subject  to for  giving  the                                                              
order.  What he  discovered was that he had no  protection and his                                                              
supervisor would not be subject to any penalties.                                                                               
Number 1384                                                                                                                     
SENATOR  GREEN  said that  the  purpose of  SB  45  is to  address                                                              
situations  in which somebody,  for whatever  reason, has  decided                                                              
not to cooperate  with the legislative auditor  or the legislative                                                              
fiscal  analyst.    She  offered  that  if  information  is  being                                                              
requested,  there  has  already  been  a  considerable  amount  of                                                              
discussion  to   determine  that,  indeed,  that   information  is                                                              
critical  to a  particular investigation.   She  noted that  there                                                              
have been  recent audits  involving Medicaid  and the  Division of                                                              
Agriculture,  and   that  entities  with  sunset   dates  are  all                                                              
audited.   These  audits  provide  valuable information  that  can                                                              
influence  policy  decisions  and   offer  insight  pertaining  to                                                              
whether an entity's sunset date should be extended.                                                                             
SENATOR GREEN,  in conclusion, said  that because  the legislature                                                              
must rely on good,  truthful information, the goal of  SB 45 is to                                                              
ensure  that  people  will  tell  the truth,  that  they  will  be                                                              
forthcoming,  and  that  they  won't  prevent  someone  else  from                                                              
providing information.                                                                                                          
REPRESENTATIVE  GRUENBERG, after  mentioning  that he  has had  to                                                              
use the  threat of  subpoena to  get information  from someone  in                                                              
the  administration and  that perhaps  the legislature's  subpoena                                                              
policy should  be scrutinized during  the interim, agreed  that it                                                              
is   essential   for   the   legislature   to   have   everybody's                                                              
The committee took an at-ease from 8:44 a.m. to 8:47 a.m.                                                                       
CHAIR McGUIRE closed public testimony on SB 45.                                                                                 
Number 1640                                                                                                                     
REPRESENTATIVE  OGG made  a motion to  adopt Conceptual  Amendment                                                              
1:    delete  from  page  2,  lines  17-18,  the  words,  "if  the                                                              
information  is requested from  a department  or agency,".   There                                                              
being no objection, Conceptual Amendment 1 was adopted.                                                                         
REPRESENTATIVE  OGG  asked  whether  the  Legislative  Budget  and                                                              
Audit Committee has the ability to grant immunity.                                                                              
MR. BRANCHFLOWER  replied that AS  24.25.070 addresses  that issue                                                              
and says  that the  legislature can grant  immunity.   However, if                                                              
the matter goes  to court on the basis of reviewing  the assertion                                                              
of the  privilege, then  the rules  governing the judicial  branch                                                              
of  government would  apply.   He opined  that at  that point,  it                                                              
might be  problematic to grant immunity  and thus it  would become                                                              
a question for the Department of Law to address.                                                                                
REPRESENTATIVE  GARA, on  the  issue of  subpoenas,  said that  he                                                              
disagrees with the  assertion that a subpoena has  to specifically                                                              
ask for  a specific document.   Historically, subpoenas  have been                                                              
used very effectively  to ferret out  the truth.  One  can ask for                                                              
categories  of documents,  documents  relevant to  a subject;  one                                                              
does  not have  to point  out a  particular document.   He  opined                                                              
that the  existing subpoena  provision would  be a very  effective                                                              
tool if it is used right.                                                                                                       
REPRESENTATIVE GARA then  turned attention to page 2,  line 4.  He                                                              
indicated that  in addition  to the  changes suggested  by himself                                                              
and Mr.  Branchflower,  there is  another issue  to consider.   He                                                              
     We need  to make sure  that legislative audits  are also                                                                   
     done  properly, and  historically they  have been -  and                                                                   
     I've  actually  been very  impressed  with the  work  of                                                                   
     legislative  auditors in the  past -  but right now  you                                                                   
     will  commit  a crime  if  you don't  furnish  requested                                                                   
     information  to  the  committee  or staff.    I  suppose                                                                   
     requested  information  could be  completely  irrelevant                                                                   
     information  if  we had  a  bad legislative  auditor  or                                                                   
     legislative staff member working on a project.                                                                             
     I suppose  we could  be investigating,  for example,  an                                                                   
     issue  of   overspending  by  Representative   Samuels's                                                                   
     office,   and  the  requested   information  could   be,                                                                   
     "Representative  Samuels, please  give me every  contact                                                                   
     you've  ever  had with  a  voter  over you're  last  ...                                                                   
     twenty  years in  office."   And Representative  Samuels                                                                   
     would say,  "Well gosh, what  does that request  have to                                                                   
     do with your audit?"                                                                                                       
     And so, I think  we probably also have to  make sure the                                                                   
     requests  are proper.   And you  could probably do  that                                                                   
     ... by  changing "furnishing  requested information"  to                                                                   
     "furnishing  relevant requested  information".  I  think                                                                   
     we  really have  to sit down  and make  sure that  we're                                                                   
     doing  what we  intend  here,  so if  we  changed it  to                                                                   
     "furnishing relevant  requested information",  then that                                                                   
     would  protect the  person  [the information  is]  being                                                                   
     requested from. ...                                                                                                        
Number 1957                                                                                                                     
CHAIR McGUIRE surmised,  then, that are three possible  changes to                                                              
discuss:  Page  2, line 1, change "knowingly"  to "intentionally";                                                              
page  2,  line  3,  change  "full   cooperation"  to  "good  faith                                                              
cooperation";  page  2,  line  4,   change  "furnishing  requested                                                              
information" to "furnishing relevant requested information".                                                                    
REPRESENTATIVE  HOLM  remarked  that "relevant"  is  a  subjective                                                              
MS. DAVIDSON  indicated that she  had concerns regarding  the term                                                              
"relevant".    Most of  the  debate  the Division  of  Legislative                                                              
Audit gets  into with  agencies involves  the question  of whether                                                              
the information  requested is really  needed.  Auditing  standards                                                              
require that auditors  be in control of the auditing  process, and                                                              
that  means  that  if  auditors  believe  certain  information  is                                                              
needed,  then they  have to  be free to  ask for  it.   Therefore,                                                              
having an  agency tell an  auditor that the requested  information                                                              
is not  relevant is  contrary to  auditing standards.   She  noted                                                              
that  the  legislative auditor  is  required  to  be a  CPA;  thus                                                              
audits  will  be performed  in  accordance  with standards.    She                                                              
opined  that   adding  the  term   "relevant"  will   create  more                                                              
MR. BRANCHFLOWER  remarked that  the term "good  faith" is  also a                                                              
subjective   term,  and   counseled   against   adding  the   term                                                              
Number 2127                                                                                                                     
REPRESENTATIVE GARA  made a motion  to adopt Amendment 2,  on page                                                              
2, line  1, change  "knowingly" to  "intentionally".   There being                                                              
no objection, Amendment 2 was adopted.                                                                                          
Number 2137                                                                                                                     
REPRESENTATIVE GARA  made a motion  to adopt Amendment 3,  on page                                                              
2, line 3, change "full" to "good faith".                                                                                       
Number 2150                                                                                                                     
CHAIR McGUIRE  objected.  She  said that although  she understands                                                              
Representative Gara's  concerns, she believes that  in addition to                                                              
mirroring  what is  currently  in AS  24.20.201,  the term  "full"                                                              
more adequately describes what is being sought.                                                                                 
REPRESENTATIVE  GARA  pointed out  that  although  the term  "full                                                              
cooperation"  is used  elsewhere, it  is not  yet a  crime to  not                                                              
engage in  it.  The  language in  SB 45 would  make it a  crime if                                                              
the cooperation  is not as full  and as prompt as  the legislative                                                              
auditor wants.   "Full"  is full;  "full" is  100 percent,  not 95                                                              
percent;  "full"   is  immediate;  and  "full"  is   sometimes  an                                                              
unreasonable  objective,   he  remarked.    "Good   faith"  has  a                                                              
historical  definition; it  is a term  that is  often used  and is                                                              
well defined  in the  courts, and  it is the  courts that  will be                                                              
imposing criminal sanctions for noncompliance.                                                                                  
CHAIR  McGUIRE   opined  that  changing  the  mental   state  from                                                              
"knowingly"   to  "intentionally"   is  sufficient   to  do   what                                                              
Representative  Gara is  striving  for, which  is  to ensure  that                                                              
someone doesn't have the deck stacked against him/her.                                                                          
MR. BRANCHFLOWER  agreed that  there is  a connection  between the                                                              
culpable  mental  state  and the  conduct.    He  said that  as  a                                                              
prosecutor, he  would first  have to be  satisfied that  there was                                                              
an  intent,  a  conscious  objective,  to do  any  of  the  things                                                              
thereafter  described, with the  goal of  obstructing the  work of                                                              
the  Legislative Budget  and Audit  Committee.   Inherent in  that                                                              
analysis,   he  remarked,   would  be  a   consideration   of  the                                                              
defendant's good  faith and so there  is a place for a  good faith                                                              
analysis.   He  also said  to  keep in  mind  that if  there is  a                                                              
crime, it  will be  prosecuted by  an experienced prosecutor  from                                                              
the  Department of  Law's Criminal  Division, and  he/she will  be                                                              
able to  identify and distinguish  between good faith  efforts and                                                              
bad faith efforts.                                                                                                              
Number 2289                                                                                                                     
MR. BRANCHFLOWER  added, "Ultimately, in  terms of the  jury, that                                                              
will be a defense;  it may not be a legal defense,  but it will be                                                              
a de facto  defense in terms  of allowing the defense  attorney to                                                              
argue  that  there  was  substantial  compliance  and  good  faith                                                              
conduct on  the part  of the [defendant]".   He  said that  he did                                                              
not  see  the  term  "full  cooperation"   as  being  problematic,                                                              
adding, "We  have to  defer to  the exercise  of good judgment  on                                                              
the part  of the  people who  we put in  these positions,  whether                                                              
they  be  someone in  Pat  Davidson's  office  or someone  in  the                                                              
Criminal  Division, to  observe  good faith  conduct and  exercise                                                              
discretion not  to prosecute.   He predicted  that there  won't be                                                              
many prosecutions  resulting from  this language; essentially,  it                                                              
is a deterrent more than anything else.                                                                                         
CHAIR McGUIRE agreed.                                                                                                           
REPRESENTATIVE SAMUELS said that he too objected to Amendment 3.                                                                
REPRESENTATIVE  GARA said he  is not  satisfied that changing  the                                                              
mental state  to "intentionally" takes  care of his concerns.   He                                                              
     If we adopt  the bill ... without [Amendment  3], it's a                                                                   
     crime to  intentionally withhold full cooperation.   So,                                                                   
     you've  been asked for  5,000 documents,  you're on  the                                                                   
     verge of  going on a  family vacation, you're  trying to                                                                   
     leave  town;  to fully  cooperate,  you should  stay  in                                                                   
     town and produce  those 5,000 documents.   Now, it would                                                                   
     be good faith  for you to say ..., "I'll get  to it when                                                                   
     I get  back," but it  will be a crime  for you to  go on                                                                   
     vacation,  under this statute  the way we  read it.   If                                                                   
     we sat  here for five  hours we could  come up  with 500                                                                   
     more examples  of where  we're criminalizing  reasonable                                                                   
     conduct.    So,  without  the   term  "good  faith",  my                                                                   
     concern is not satisfied.                                                                                                  
TAPE 03-40, SIDE B                                                                                                            
Number 2388                                                                                                                     
CHAIR McGUIRE pointed  out that there are multiple  steps prior to                                                              
a situation  ever reaching  the point where  the provisions  of SB
45 would apply.                                                                                                                 
REPRESENTATIVE  GRUENBERG  indicated that  he  preferred the  term                                                              
"full  cooperation".   He  asked Mr.  Branchflower  whether he  is                                                              
aware  of any criminal  statute  that uses the  standard of  "good                                                              
MR. BRANCHFLOWER  said he  is not aware  of any criminal  statutes                                                              
that have "good  faith" as an element of the offense.   He offered                                                              
that perhaps  this is because  it is just  not definable  for that                                                              
REPRESENTATIVE  GRUENBERG  surmised  that  because  it is  such  a                                                              
subjective  term, it would  be a  difficult to prosecute  somebody                                                              
if "good faith" were used as a criminal standard.                                                                               
Number 2256                                                                                                                     
A  roll call  vote was  taken.   Representative  Anderson was  not                                                              
present  for the  vote.   Representative  Gara voted  in favor  of                                                              
Amendment 3.   Representatives Ogg, Holm, Samuels,  Gruenberg, and                                                              
McGuire  voted against  it.  Therefore,  Amendment  3 failed  by a                                                              
vote of 1-5.                                                                                                                    
Number 2241                                                                                                                     
REPRESENTATIVE GARA  made a motion  to adopt Amendment 4,  on page                                                              
2, line 4, after "furnishing" insert "relevant".                                                                                
Number 2239                                                                                                                     
CHAIR McGUIRE objected.                                                                                                         
Number 2215                                                                                                                     
A roll  call vote was taken.   Representatives Gara  and Gruenberg                                                              
voted in  favor of  Amendment 4.   Representatives Holm,  Samuels,                                                              
Ogg,  and  McGuire  voted  against it.    Therefore,  Amendment  4                                                              
failed by a vote of 2-4.                                                                                                        
Number 2205                                                                                                                     
REPRESENTATIVE  SAMUELS moved to  report the  proposed HCS  for SB
45, Version  23-LS0205\U,  Luckhaupt, 4/8/03,  as amended,  out of                                                              
committee  with individual  recommendations  and the  accompanying                                                              
zero fiscal  notes.   There being no  objection, HCS  CSSB 45(JUD)                                                              
was reported from the House Judiciary Standing Committee.                                                                       
REPRESENTATIVE OGG complimented Senator Green on her efforts.                                                                   

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