Legislature(2009 - 2010)BUTROVICH 205

04/15/2010 08:30 AM JUDICIARY


Download Mp3. <- Right click and save file as

* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+= HB 36 INITIATIVES: CONTRIBUTIONS/ PROCEDURES TELECONFERENCED
Scheduled But Not Heard
+= HB 324 FAILURE TO APPEAR; RELEASE PROCEDURES TELECONFERENCED
Moved SCS CSHB 324(JUD) Out of Committee
+ HB 348 PERSONNEL BOARD MEMBERSHIP TELECONFERENCED
Moved CSHB 348(JUD) Out of Committee
+ HB 381 SELF DEFENSE TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
                    ALASKA STATE LEGISLATURE                                                                                  
              SENATE JUDICIARY STANDING COMMITTEE                                                                             
                         April 15, 2010                                                                                         
                           8:52 a.m.                                                                                            
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Senator Hollis French, Chair                                                                                                    
Senator Bill Wielechowski, Vice Chair                                                                                           
Senator John Coghill                                                                                                            
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
Senator Dennis Egan                                                                                                             
Senator Lesil McGuire                                                                                                           
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
COMMITTEE SUBSTITUTE FOR HOUSE BILL NO. 348(JUD)                                                                                
"An  Act  relating  to  the membership  of  the  state  personnel                                                               
board."                                                                                                                         
                                                                                                                                
     - MOVED CSHB 348(JUD) OUT OF COMMITTEE                                                                                     
                                                                                                                                
COMMITTEE SUBSTITUTE FOR HOUSE BILL NO. 381(JUD)                                                                                
"An Act relating to self defense  in any place where a person has                                                               
a right to be."                                                                                                                 
                                                                                                                                
     - HEARD AND HELD                                                                                                           
                                                                                                                                
COMMITTEE SUBSTITUTE FOR HOUSE BILL NO. 324(FIN)                                                                                
"An Act relating  to the crime of failure to  appear; relating to                                                               
arrest for  violating certain conditions of  release; relating to                                                               
release  before  trial,  before  sentence,  and  pending  appeal;                                                               
relating to  material witnesses;  relating to  temporary release;                                                               
relating to release  on a petition to  revoke probation; relating                                                               
to the first  appearance before a judicial  officer after arrest;                                                               
relating to  service of process for  domestic violence protective                                                               
orders; making  conforming amendments;  amending Rules 5  and 41,                                                               
Alaska  Rules  of Criminal  Procedure,  and  Rules 206  and  603,                                                               
Alaska  Rules  of  Appellate  Procedure;  and  providing  for  an                                                               
effective date."                                                                                                                
                                                                                                                                
     - MOVED SCS CSHB 324(JUD) OUT OF COMMITTEE                                                                                 
                                                                                                                                
CS FOR SS FOR HOUSE BILL NO. 36(FIN) AM                                                                                         
"An Act  relating to ballot initiative  proposal applications, to                                                               
ballot  initiatives and  to those  who file  or organize  for the                                                               
purpose of filing  a ballot initiative proposal,  and to election                                                               
pamphlet information relating to certain propositions."                                                                         
                                                                                                                                
     - SCHEDULED BUT NOT HEARD                                                                                                  
                                                                                                                                
PREVIOUS COMMITTEE ACTION                                                                                                     
                                                                                                                                
BILL: HB 348                                                                                                                  
SHORT TITLE: PERSONNEL BOARD MEMBERSHIP                                                                                         
SPONSOR(s): LYNN                                                                                                                
                                                                                                                                
02/17/10       (H)       READ THE FIRST TIME - REFERRALS                                                                        
02/17/10       (H)       STA, JUD                                                                                               
03/11/10       (H)       STA AT 8:00 AM CAPITOL 106                                                                             
03/11/10       (H)       Heard & Held                                                                                           
03/11/10       (H)       MINUTE(STA)                                                                                            
03/16/10       (H)       STA AT 8:00 AM CAPITOL 106                                                                             
03/16/10       (H)       Moved CSHB 348(STA) Out of Committee                                                                   
03/16/10       (H)       MINUTE(STA)                                                                                            
03/17/10       (H)       STA RPT CS(STA) 3DP 1NR 2AM                                                                            
03/17/10       (H)       DP: PETERSEN, SEATON, LYNN                                                                             
03/17/10       (H)       NR: GATTO                                                                                              
03/17/10       (H)       AM: GRUENBERG, P.WILSON                                                                                
03/29/10       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
03/29/10       (H)       Moved CSHB 348(JUD) Out of Committee                                                                   
03/29/10       (H)       MINUTE(JUD)                                                                                            
03/31/10       (H)       JUD RPT CS(JUD) 4DP 2NR                                                                                
03/31/10       (H)       DP: LYNN, GRUENBERG, GATTO, HOLMES                                                                     
03/31/10       (H)       NR: HERRON, RAMRAS                                                                                     
04/07/10       (H)       TRANSMITTED TO (S)                                                                                     
04/07/10       (H)       VERSION: CSHB 348(JUD)                                                                                 
04/08/10       (S)       READ THE FIRST TIME - REFERRALS                                                                        
04/08/10       (S)       STA, JUD                                                                                               
04/14/10       (S)       STA RPT   4NR                                                                                          
04/14/10       (S)       NR: MENARD, FRENCH, MEYER, KOOKESH                                                                     
04/14/10       (S)       STA AT 9:00 AM BELTZ 105 (TSBldg)                                                                      
04/14/10       (S)       Moved CSHB 348(JUD) Out of Committee                                                                   
04/14/10       (S)       MINUTE(STA)                                                                                            
04/15/10       (S)       JUD AT 8:30 AM BUTROVICH 205                                                                           
                                                                                                                                
BILL: HB 381                                                                                                                  
SHORT TITLE: SELF DEFENSE                                                                                                       
SPONSOR(s): NEUMAN                                                                                                              
                                                                                                                                
02/23/10       (H)       READ THE FIRST TIME - REFERRALS                                                                        
02/23/10       (H)       JUD, FIN                                                                                               
03/15/10       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
03/15/10       (H)       Heard & Held                                                                                           
03/15/10       (H)       MINUTE(JUD)                                                                                            
03/29/10       (H)       JUD RPT CS(JUD) NT 3DP 1DNP 2NR                                                                        
03/29/10       (H)       DP: LYNN, GATTO, RAMRAS                                                                                
03/29/10       (H)       DNP: HOLMES                                                                                            
03/29/10       (H)       NR: GRUENBERG, HERRON                                                                                  
03/29/10       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
03/29/10       (H)       Moved CSHB 381(JUD) Out of Committee                                                                   
03/29/10       (H)       MINUTE(JUD)                                                                                            
04/08/10       (H)       FIN AT 9:00 AM HOUSE FINANCE 519                                                                       
04/08/10       (H)       Moved CSHB 381(JUD) Out of Committee                                                                   
04/08/10       (H)       MINUTE(FIN)                                                                                            
04/09/10       (H)       FIN RPT CS(JUD) NT 6DP 1DNP 2NR                                                                        
04/09/10       (H)       DP: THOMAS, N.FOSTER, KELLY, SALMON,                                                                   
                        STOLTZE, HAWKER                                                                                         
04/09/10       (H)       DNP: DOOGAN                                                                                            
04/09/10       (H)       NR: GARA, JOULE                                                                                        
04/12/10       (H)       TRANSMITTED TO (S)                                                                                     
04/12/10       (H)       VERSION: CSHB 381(JUD)                                                                                 
04/13/10       (S)       READ THE FIRST TIME - REFERRALS                                                                        
04/13/10       (S)       JUD, FIN                                                                                               
04/15/10       (S)       JUD AT 8:30 AM BUTROVICH 205                                                                           
                                                                                                                                
BILL: HB 324                                                                                                                  
SHORT TITLE: FAILURE TO APPEAR; RELEASE PROCEDURES                                                                              
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR                                                                                    
                                                                                                                                
02/03/10       (H)       READ THE FIRST TIME - REFERRALS                                                                        
02/03/10       (H)       JUD, FIN                                                                                               
03/19/10       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
03/19/10       (H)       Heard & Held                                                                                           
03/19/10       (H)       MINUTE(JUD)                                                                                            
03/22/10       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
03/22/10       (H)       Heard & Held                                                                                           
03/22/10       (H)       MINUTE(JUD)                                                                                            
03/26/10       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
03/26/10       (H)       Moved CSHB 324(JUD) Out of Committee                                                                   
03/26/10       (H)       MINUTE(JUD)                                                                                            
03/29/10       (H)       JUD RPT CS(JUD) 4DP 1NR 1AM                                                                            
03/29/10       (H)       DP: LYNN, DAHLSTROM, GATTO, RAMRAS                                                                     
03/29/10       (H)       NR: HERRON                                                                                             
03/29/10       (H)       AM: HOLMES                                                                                             
04/12/10       (H)       FIN AT 1:30 PM HOUSE FINANCE 519                                                                       
04/12/10       (H)       Moved CSHB 324(FIN) Out of Committee                                                                   
04/12/10       (H)       MINUTE(FIN)                                                                                            
04/13/10       (H)       FIN RPT CS(FIN) 8DP 2NR                                                                                
04/13/10       (H)       DP: THOMAS, DOOGAN, JOULE, FAIRCLOUGH,                                                                 
                         KELLY, SALMON, STOLTZE, HAWKER                                                                         
04/13/10       (H)       NR: GARA, N.FOSTER                                                                                     
04/14/10       (H)       NOTICE OF RECONSIDERATION WITHDRAWN                                                                    
04/14/10       (H)       TRANSMITTED TO (S)                                                                                     
04/14/10       (H)       VERSION: CSHB 324(FIN)                                                                                 
04/14/10       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
04/14/10       (S)       <Pending Referral>                                                                                     
04/15/10       (S)       JUD AT 8:30 AM BUTROVICH 205                                                                           
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
REPRESENTATIVE BOB LYNN                                                                                                         
Alaska State Legislature                                                                                                        
Juneau, AK                                                                                                                      
POSITION STATEMENT:  Sponsor of HB 348.                                                                                       
                                                                                                                                
MICHAEL SICA, Staff                                                                                                             
  to Representative Lynn                                                                                                        
Alaska State Legislature                                                                                                        
Juneau, AK                                                                                                                      
POSITION STATEMENT:  Provided information related to HB 348 on                                                                
behalf of the sponsor.                                                                                                          
                                                                                                                                
ALPHEUS BULLARD, Attorney                                                                                                       
Legislative Legal Services                                                                                                      
Legislative Affairs Agency                                                                                                      
Juneau, AK                                                                                                                      
POSITION STATEMENT:  Provided information related to HB 348.                                                                  
                                                                                                                                
DOUGLAS WOOLIVER, Administrative Attorney                                                                                       
Alaska Court System, said                                                                                                       
POSITION STATEMENT:  Testified that the court doesn't have a                                                                  
position on HB 348, but it has reservations about this type of                                                                  
bill.                                                                                                                           
                                                                                                                                
MIKE FORD, Assistant Attorney General                                                                                           
Department of Law (DOL)                                                                                                         
Juneau, AK                                                                                                                      
POSITION STATEMENT:  Raised concerns about HB 348.                                                                            
                                                                                                                                
WILLIAM MILKS, Attorney IV                                                                                                      
Civil Division                                                                                                                  
Department of Law (DOL)                                                                                                         
POSITION STATEMENT:  Addressed separation of powers issues                                                                    
related to HB 348.                                                                                                              
                                                                                                                                
REPRESENTATIVE MARK NEUMAN                                                                                                      
Alaska State Legislature                                                                                                        
Juneau, AK                                                                                                                      
POSITION STATEMENT:  Sponsor of HB 381.                                                                                       
                                                                                                                                
GRIS SMITH, President                                                                                                           
Alaska Pyrotechnic Guild                                                                                                        
POSITION STATEMENT:  Testified in support of HB 381.                                                                        
                                                                                                                                
SUSAN MCLEAN, Director                                                                                                          
Criminal Division                                                                                                               
Department of Law (DOL)                                                                                                         
Anchorage, AK                                                                                                                   
POSITION  STATEMENT:    Explained  the  changes  to  HB  324  and                                                             
testified in opposition to HB 381.                                                                                              
                                                                                                                                
RICK SVOBODNY, Deputy Attorney General                                                                                          
Criminal Division                                                                                                               
Department of Law                                                                                                               
Juneau, AK                                                                                                                      
POSITION  STATEMENT:    Commented   on  and  offered  suggestions                                                             
related to HB 324.                                                                                                              
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
8:52:56 AM                                                                                                                    
                                                                                                                                
CHAIR  HOLLIS   FRENCH  called  the  Senate   Judiciary  Standing                                                             
Committee  meeting  to  order  at  8:52  a.m.  Senators  Coghill,                                                               
Wielechowski, and French were present at the call to order.                                                                     
                                                                                                                                
               HB 348-PERSONNEL BOARD MEMBERSHIP                                                                            
                                                                                                                                
8:53:19 AM                                                                                                                    
CHAIR  FRENCH  announced  the  consideration  of  HB  348.  [CSHB                                                               
348(JUD) was before the committee.]                                                                                             
                                                                                                                                
REPRESENTATIVE  BOB  LYNN, sponsor  of  HB  348, said  this  bill                                                               
changes the way the governor  appoints people to the three-member                                                               
state  personnel  board and  addresses  the  perception that  the                                                               
board is a creature of the  governor. At present the governor can                                                               
appoint any  Alaskan to the  board who  is not a  state employee.                                                               
This provides little  diversity of opinion and could  result in a                                                               
tie vote on sensitive issues if one member is absent.                                                                           
                                                                                                                                
HB 348  increases the size of  the board to five  members each of                                                               
which is  a member of  the two  largest political parties  in the                                                               
last gubernatorial  election. Under  the bill the  governor would                                                               
make an  appointment from a list  of three names provided  by the                                                               
chief justice  of the supreme  court. The governor  could request                                                               
additional names if  he or she so desired.  The legislature would                                                               
confirm the appointee.  He recapped that the  bill basically does                                                               
three things; it  increases diversity, lessens the  chance of tie                                                               
vote, and protects the governor from improper perceptions.                                                                      
                                                                                                                                
8:56:50 AM                                                                                                                    
MICHAEL SICA,  Staff to  Representative Lynn,  said HB  348 makes                                                               
the state personnel board a  more deliberative body and insulates                                                               
the  governor from  any improper  perception.  The bill  improves                                                               
rather than changes the current process.                                                                                        
                                                                                                                                
8:58:13 AM                                                                                                                    
DOUGLAS WOOLIVER,  Administrative Attorney, Alaska  Court System,                                                               
said  the court  hasn't  taken  a position  on  HB  348, but  has                                                               
reservations about this type of  bill. He acknowledged that there                                                               
is precedent for  the court to be involved in  a similar process.                                                               
The  chief  justice forwards  names  for  the legislative  ethics                                                               
committee to the legislature for  confirmation. The chief justice                                                               
also  makes the  fifth  appointment to  the redistricting  board.                                                               
Although the  process has worked  fairly well, the  court prefers                                                               
to operate completely outside the political process.                                                                            
                                                                                                                                
MR.  WOOLIVER  highlighted that  the  court  has further  concern                                                               
because the personnel  board has an oversight  role for personnel                                                               
in  the executive  branch. Even  a  minor role  in the  personnel                                                               
management  of  another branch  is  something  the court  doesn't                                                               
relish. The court  would prefer to see fewer rather  than more of                                                               
these bills, he said.                                                                                                           
                                                                                                                                
9:00:11 AM                                                                                                                    
MIKE FORD,  Assistant Attorney General, Department  of Law (DOL),                                                               
said  DOL has  two primary  concerns with  HB 348.  First is  the                                                               
legal concern with regard to  separation of powers. He referenced                                                               
the memo DOL  provided on that point. Article III,  Section 26 of                                                               
the Alaska  Constitution sets out  a process for  appointment and                                                               
confirmation of board  members. The bill adds  an additional part                                                               
to that process  by requiring the chief justice to  create a list                                                               
of appointees. The  governor would select from that  list and the                                                               
legislature  would  confirm  the  selection.  DOL  believes  that                                                               
process infringes on  the governor's powers in a way  that is not                                                               
permissible  under the  state constitution.  He cited  Bradner v.                                                               
Hammond, which  relates to a  prior effort by the  legislature to                                                               
expand the  list of people  who are subject to  confirmation. The                                                               
court  struck  that  down  and  in  the  opinion  indicated  that                                                               
appointment is an executive process  and power. The discussion in                                                               
that case  indicated that  confirmations are  the outer  limit of                                                               
the legislature's power.                                                                                                        
                                                                                                                                
9:02:23 AM                                                                                                                    
MR.  FORD said  DOL's second  concern is  that the  bill wouldn't                                                               
significantly change the  current process. If there  is an ethics                                                               
complaint  against  the  governor  or  lieutenant  governor,  the                                                               
current process  provides for the  appointment of  an independent                                                               
body to review the complaint.  That process would remain in place                                                               
were HB  348 to become law.  He suggested that the  target of the                                                               
bill might not be as tight as it should be.                                                                                     
                                                                                                                                
9:03:01 AM                                                                                                                    
WILLIAM  MILKS, Attorney  IV, Civil  Division, Department  of Law                                                               
(DOL), introduced himself.                                                                                                      
                                                                                                                                
CHAIR FRENCH  said that  after he  heard the  bill in  a previous                                                               
committee he asked legislative legal  to review the separation of                                                               
powers  issue.  He  noted  that  Mr. Milks  also  sent  a  letter                                                               
addressing the  subject. The  idea is that  the governor  has the                                                               
constitutional   power  to   appoint   members   of  boards   and                                                               
commissions and  any infringement  is an  issue of  separation of                                                               
powers.  But as  Mr. Milks'  letter  points out,  there are  many                                                               
instances  where  the  governor  does  not  have  the  unfettered                                                               
discretion to  choose whom so  ever he or  she wants to  serve on                                                               
certain boards.  He cited examples Mr.  Milks' provided including                                                               
nominations from  certain village or city  councils, appointments                                                               
from  organized  labor  submitted  by  unions,  and  appointments                                                               
submitted by  the Alaska Historical Society.  With these examples                                                               
it's  difficult to  see a  large infringement  on the  governor's                                                               
power to say that he or she must  pick from a list offered by the                                                               
chief  justice  of the  supreme  court.  He  asked Mr.  Milks  to                                                               
comment.                                                                                                                        
                                                                                                                                
MR.  MILKS pointed  out  that  Article III,  section  26, of  the                                                               
Alaska Constitution  gives the governor  that authority,  and the                                                               
Alaska Supreme Court interpreted it  rather strictly in one case.                                                               
He acknowledged that there are  a number of statutes that require                                                               
the governor to make appointments  to boards and commissions from                                                               
lists  supplied by  other persons.  But  the fact  that this  has                                                               
occurred does  not mean that  Bradner has been overruled  or that                                                               
Article II, section  26 does not apply. DOL is  trying to lay out                                                               
that for the quasi-judicial personnel board, section 26 applies.                                                                
                                                                                                                                
CHAIR  FRENCH  asked Mr.  Milks  if  he  is suggesting  that  the                                                               
statutes he cited in his letter are unconstitutional.                                                                           
                                                                                                                                
MR.  MILKS  replied he  is  suggesting  that  the fact  that  the                                                               
statutes exist  does not  mean that the  Bradner case  or Article                                                               
III are not controlling.                                                                                                        
                                                                                                                                
9:06:33 AM                                                                                                                    
SENATOR COGHILL said  he'd like to know how  the constitution was                                                               
applied and under what test the supreme court made the decision.                                                                
                                                                                                                                
MR. MILKS  explained that Bradner  v. Hammond was a  case dealing                                                               
with  legislation  passed that  made  the  appointment of  deputy                                                               
department  heads  and  certain  division  directors  subject  to                                                               
confirmation. The Alaska  Supreme Court cited sections  25 and 26                                                               
of Article III and held  that the appointment of executive branch                                                               
officials   is  an   executive  function   and  not   subject  to                                                               
confirmation.                                                                                                                   
                                                                                                                                
SENATOR  COGHILL   asked  how  bringing   the  third   branch  of                                                               
government  into the  appointment process  would be  viewed under                                                               
that criterion.                                                                                                                 
                                                                                                                                
CHAIR  FRENCH said  he believes  that  DOL would  argue that  the                                                               
governor should have unfettered  discretion in appointing members                                                               
of boards and  commissions and any restrictions to  that would be                                                               
an infringement on executive power.                                                                                             
                                                                                                                                
SENATOR COGHILL asked if the chief  justice submits a list to the                                                               
governor for appointments other than for the ethics committee.                                                                  
                                                                                                                                
CHAIR FRENCH consulted  Mr. Wooliver and related  that the ethics                                                               
committee is  the only  instance. The  apportionment board  is in                                                               
the constitution.                                                                                                               
                                                                                                                                
SENATOR COGHILL questioned whether  the legislature has the legal                                                               
authority to make a directive in that regard.                                                                                   
                                                                                                                                
CHAIR FRENCH replied that's the question the bill poses.                                                                        
                                                                                                                                
MR.  FORD said  the  court made  the point  in  Bradner that  the                                                               
appointment  process  is  purely   an  executive  function.  That                                                               
function  is  delegated  to  the   legislature  for  purposes  of                                                               
confirmation, but the court described  that as the outer limit of                                                               
legislative authority. Adding  this new process would  seem to be                                                               
inconsistent with Bradner, he said.                                                                                             
                                                                                                                                
9:11:17 AM                                                                                                                    
SENATOR COGHILL  observed that the  legislature has the  right to                                                               
veto confirmations.                                                                                                             
                                                                                                                                
CHAIR FRENCH  said he shares  the sponsor's concern  that because                                                               
this  board  is appointed  by  the  governor to  hear  complaints                                                               
against the executive  branch, there can be a  perception that it                                                               
stands  as a  buffer rather  than  a watchdog.  There are  likely                                                               
examples  other  than   those  cited  by  Mr.   Milks  where  the                                                               
legislature has told  the governor that he or she  has to appoint                                                               
someone from a  list. The executive branch has  accepted that for                                                               
decades, which undermines the separation of powers argument.                                                                    
                                                                                                                                
SENATOR  COGHILL  said  he  understands  the  rationale,  but  he                                                               
believes  it would  be unwise  to think  that politics  won't get                                                               
involved if the  governor has to pick from a  list of people from                                                               
particular parties.                                                                                                             
                                                                                                                                
CHAIR FRENCH called  a point of order saying he  isn't sure there                                                               
is no political aspect to the appointments.                                                                                     
                                                                                                                                
SENATOR COGHILL pointed out the new language on page one.                                                                       
                                                                                                                                
CHAIR FRENCH withdrew the point of order.                                                                                       
                                                                                                                                
SENATOR  COGHILL  noted  the  significant  philosophical  clashes                                                               
during  the recent  joint session  confirmations and  opined that                                                               
the  legislature would  thoroughly challenge  appointments if  it                                                               
thought that a  board was being stacked. There's  an honest check                                                               
on  the governor  stacking this  board, and  having to  pick from                                                               
political parties  might bring about  what the bill is  trying to                                                               
avoid, he said.                                                                                                                 
                                                                                                                                
9:15:06 AM                                                                                                                    
CHAIR FRENCH said the point is taken.                                                                                           
                                                                                                                                
MR. FORD said that just one  of the issues that could result from                                                               
adding a  third step to  the process  is that the  governor could                                                               
repeatedly reject the names on the list.                                                                                        
                                                                                                                                
CHAIR FRENCH  asked the sponsor  if he  would like to  respond to                                                               
any of the points that were made.                                                                                               
                                                                                                                                
REPRESENTATIVE  LYNN explained  that  the object  of bringing  in                                                               
more than  one political party  was to increase the  diversity of                                                               
opinion.  Some   of  the  current   members  are   undeclared  or                                                               
nonpartisan,  which   brings  in  a  broad   range  of  political                                                               
perspectives.  He  suggested  that   Mr.  Bullard  could  provide                                                               
prospective on the statements made by the Department of Law.                                                                    
                                                                                                                                
MR.  SICA said  he  understands Senator  Coghill's concern  about                                                               
injecting politics into  the process, but he wonders  it might be                                                               
just  as much  an issue  to  exclude someone  based on  political                                                               
party.                                                                                                                          
                                                                                                                                
SENATOR  COGHILL  commented  that the  list  describing  fairness                                                               
could become quite long.                                                                                                        
                                                                                                                                
9:19:25 AM                                                                                                                    
SENATOR  WIELECHOWSKI offered  the  view that  this  is about  as                                                               
close as you'll get to removing politics from the process.                                                                      
                                                                                                                                
At ease from 9:20 a.m. to 9:24 a.m.                                                                                             
                                                                                                                                
CHAIR  FRENCH  moved  Amendment  1,  labeled  26-LS1360\S.3,  and                                                               
objected for discussion purposes.                                                                                               
                                                                                                                                
                          Amendment 1                                                                                       
                                                                                                                                
     OFFERED IN THE SENATE              BY SENATOR FRENCH                                                                       
          TO: CSHB 348(JUD)                                                                                                     
                                                                                                                                
     Page 1, line 6:                                                                                                            
          Delete "selected"                                                                                                 
          Insert "submitted"                                                                                                
                                                                                                                                
     Page 1, line 8, following "nominations.":                                                                              
          Insert "If the chief justice declines to submit                                                                   
       additional nominees, the governor shall appoint a                                                                    
      nominee from a list of nominees previously submitted                                                                  
     by the chief justice for the vacancy."                                                                                 
                                                                                                                                
     Page 1, line 12:                                                                                                           
          Delete "at which a governor was elected"                                                                          
                                                                                                                                
9:24:27 AM                                                                                                                    
CHAIR  FRENCH  asked  Mr.  Bullard   if  he  believes  that  this                                                               
amendment may  make the  separation of  powers issue  more rather                                                               
than less pronounced.                                                                                                           
                                                                                                                                
ALPHEUS   BULLARD,   Attorney,    Legislative   Legal   Services,                                                               
Legislative Affairs  Agency, noted that the  committee discussion                                                               
has  focused more  on the  executive's appointment  authority and                                                               
the law as determined by  the Bradner decision. However, it isn't                                                               
in doubt  that the legislature  can usually  prescribe reasonable                                                               
qualifications  for members  of  boards,  commissions, and  state                                                               
authorities. Under  the terms  of HB 348,  the governor  would be                                                               
required to  appoint from a  list, but  that would be  subject to                                                               
his or her  right to request additional names,  putting this more                                                               
as a  qualification. At the  point that the  legislature requires                                                               
the  governor  to   appoint  from  one  or  two   lists,  it  has                                                               
exacerbated   existing   separation   of   powers   concerns   in                                                               
determining who will be appointed to the board.                                                                                 
                                                                                                                                
CHAIR  FRENCH asked  if the  answer is  yes; the  amendment would                                                               
make  the  separation  of  powers issue  more  rather  than  less                                                               
pronounced.                                                                                                                     
                                                                                                                                
MR. BULLARD answered yes.                                                                                                       
                                                                                                                                
CHAIR FRENCH withdrew Amendment 1.                                                                                              
                                                                                                                                
He referenced the  footnote on page 2 in Mr.  Bullard's memo that                                                               
noted that  there are several  state boards and  commissions that                                                               
are  currently chosen  by the  governor from  lists submitted  by                                                               
other  persons. Mr.  Milks made  the  same point  in his  letter,                                                               
which reaffirms the  current practice. He further  noted that the                                                               
first full  paragraph on  the second page  of Mr.  Bullard's memo                                                               
highlights that  between 1981 and  1988 at least  three attorneys                                                               
general opinions  or letters  of advice  have accepted  that "the                                                               
legislature   may   prescribe   reasonable   qualifications   for                                                               
gubernatorial appointments  to boards or commissions."  He opined                                                               
that  the sponsor  has  done a  good job  in  trying to  increase                                                               
public confidence in this board.                                                                                                
                                                                                                                                
CHAIR FRENCH  found no further questions,  comments, or testimony                                                               
and  closed  public testimony.  Describing  the  bill as  a  fair                                                               
balance, he asked for a motion.                                                                                                 
                                                                                                                                
SENATOR  WIELECHOWSKI  moved  to  report   CS  for  HB  348  from                                                               
committee  with individual  recommendations  and attached  fiscal                                                               
note(s).                                                                                                                        
                                                                                                                                
9:29:00 AM                                                                                                                    
SENATOR COGHILL objected to state  that he appreciates the reason                                                               
that the  bill was introduced,  but he doesn't  necessarily agree                                                               
that inserting the court in the  process and placing a mandate on                                                               
the  governor will  actually be  helpful.  The sponsor  statement                                                               
convinced him that  this is the right thing to  do, but the legal                                                               
backup raised more questions than  answers. Until he is convinced                                                               
otherwise, he will  be a "do not pass." He  removed his objection                                                               
to moving the bill from committee.                                                                                              
                                                                                                                                
CHAIR  FRENCH  announced  that without  further  objection,  CSHB                                                               
348(JUD) moved from the Senate Judiciary Standing Committee.                                                                    
                                                                                                                                
At ease from 9:30 a.m. to 9:31 a.m.                                                                                             
                                                                                                                                
                      HB 381-SELF DEFENSE                                                                                   
                                                                                                                                
9:31:52 AM                                                                                                                    
CHAIR FRENCH announced the consideration of HB 381.                                                                             
                                                                                                                                
REPRESENTATIVE MARK NEUMAN, sponsor of  HB 381, said the bill has                                                               
undergone changes since it was  introduced. Ms. Carpeneti, who is                                                               
with  the Department  of  Law, brought  several  concerns to  his                                                               
attention and  the proposed committee  substitute was  drafted to                                                               
address those concerns.                                                                                                         
                                                                                                                                
The current statute says there is  no duty to retreat on premises                                                               
that  you own  or  lease, where  you reside,  or  where you're  a                                                               
guest.  The bill  expands that  to  include anyplace  you have  a                                                               
legal  right  to  be.  While   the  bill  proposes  to  amend  AS                                                               
11.81.335(b), subsection (a) provides the justifications.                                                                       
                                                                                                                                
9:34:10 AM                                                                                                                    
REPRESENTATIVE NEUMAN said 16 states  have tried to clarify where                                                               
a person can  be and legally defend him or  herself because there                                                               
has  been confusion  about that.  The current  law says  that you                                                               
must retreat  if you're able to  do so safely, but  that's asking                                                               
for a  snap decision in a  panic-filled moment. You have  a right                                                               
to defend yourself  in your home and the bill  proposes to extend                                                               
that right  to a street  or a park or  anywhere you have  a legal                                                               
right to be. "Did you use  deadly force? It better be justified,"                                                               
he said.                                                                                                                        
                                                                                                                                
REPRESENTATIVE NEUMAN  reported that  current Alaska  law permits                                                               
the use  of deadly force in  self defense and a  few instances of                                                               
murder,  rape, kidnapping,  physical injury,  or robbery.  HB 381                                                               
tries to  allow you to  defend yourself before that  happens. "If                                                               
you're  involved  in one  of  those  situations, you  can  defend                                                               
yourself  right now,  but it's  before that  happens. That's  the                                                               
critical part," he said.                                                                                                        
                                                                                                                                
The  title is  very clean  and clear:  "An Act  relating to  self                                                               
defense in any place where a person has a right to be."                                                                         
                                                                                                                                
9:37:21 AM                                                                                                                    
CHAIR FRENCH asked if he believes  that anyone ever has a duty to                                                               
retreat and  how he views  that as  comporting with the  right to                                                               
use deadly force.                                                                                                               
                                                                                                                                
REPRESENTATIVE NEUMAN  replied a duty  to retreat means  that you                                                               
should try  to escape a situation  if you're able to  do so. Most                                                               
reasonable people  would do that.  If you  find that you  have to                                                               
defend yourself with deadly force,  Alaska law says you have that                                                               
right but only  if you're in your  home or place of  work. HB 381                                                               
proposes to extend  that right to other locations  where you have                                                               
a legal right to be.                                                                                                            
                                                                                                                                
9:39:58 AM                                                                                                                    
SENATOR COGHILL  said he  agrees that  the duty  to retreat  is a                                                               
serious duty but he wonders  about the legal protections a person                                                               
might have when  they're faced with very  aggressive behavior and                                                               
they have to make a split-second  decision. He asked if there's a                                                               
problem now where  the burden to retreat is on  the victim rather                                                               
than on the perpetrator.                                                                                                        
                                                                                                                                
REPRESENTATIVE NEUMAN  said it  is a  problem because  Alaska law                                                               
says you  must retreat if  you know you  can do so  with complete                                                               
safety. He  said his measure is  to ask if you  were justified in                                                               
using deadly force.                                                                                                             
                                                                                                                                
SENATOR  COGHILL said  part  of the  concern  is with  aggressive                                                               
behavior and  the other part is  that a split second  decision is                                                               
easily  deliberated  in court,  but  it  wasn't made  under  that                                                               
circumstance. He asked if the duty  to retreat had been tested in                                                               
court enough to understand how it falls out.                                                                                    
                                                                                                                                
REPRESENTATIVE  NEUMAN  reiterated  that 16  states  have  passed                                                               
similar legislation. He relayed that  his staff informed him that                                                               
the duty to retreat is only  a legal issue after it's established                                                               
that deadly force was justified.                                                                                                
                                                                                                                                
SENATOR COGHILL reiterated  that it would be  interesting to know                                                               
how the court has interpreted the law.                                                                                          
                                                                                                                                
9:45:27 AM                                                                                                                    
SUSAN  MCLEAN, Director,  Criminal  Division,  Department of  Law                                                               
(DOL), confirmed that in the  state of Alaska you absolutely have                                                               
the right to  self defense. It is not an  affirmative defense. It                                                               
is part of  the state's case to prove that  the defendant did not                                                               
act  in self  defense. If  the state  fails to  prove that  using                                                               
force was not in self defense,  the state never gets to a defense                                                               
case because  a judgment of  acquittal could be  entered. Because                                                               
of that, you never see cases  where self defense was obvious; the                                                               
person isn't charged.                                                                                                           
                                                                                                                                
HB 381  and similar laws  have been characterized  as stand-your-                                                               
ground laws - and  this is a trend - but  it's not about standing                                                               
your ground.  It's about  shooting first.  Prosecutors nationwide                                                               
are opposed to this type of  law and the Alaska Department of Law                                                               
is  similarly  opposed.  It  promotes and  condones  a  level  of                                                               
violence  that  may not  have  been  necessary. Self  defense  is                                                               
complicated law; in  a trial if there is  any evidence whatsoever                                                               
that there  may have been  self defense,  the jury must  be given                                                               
instructions  about  self defense  and  can  consider that.  This                                                               
proposal pertains  just to  the use  of deadly  force. This  is a                                                               
situation where a human life was taken.                                                                                         
                                                                                                                                
9:48:21 AM                                                                                                                    
MS.  MCLEAN explained  that in  common law  there was  a duty  to                                                               
retreat.  In Medieval  times  that  meant that  a  person had  to                                                               
retreat to  the wall before using  deadly force. This law  is old                                                               
and long-standing because human life  is sacred. A life shouldn't                                                               
be  taken  lightly  and  it  shouldn't be  taken  when  it's  not                                                               
necessary.  As the  sponsor said,  most  reasonable people  would                                                               
retreat, but  HB 381 says they  don't have to act  reasonably and                                                               
retreat. "That's why we're so greatly opposed to it," she said.                                                                 
                                                                                                                                
Current  law says  there is  no duty  to retreat  in the  home or                                                               
other enumerated places. But the premise  is that if you know can                                                               
retreat with complete safety, then  you may not use deadly force.                                                               
That  rule applies  in every  location  but a  person's castle  -                                                               
their home.                                                                                                                     
                                                                                                                                
MS. MCLEAN  clarified that DOL's view  of "knowing" is that  if a                                                               
person says that in the heat  of the moment they didn't know they                                                               
could  retreat  with  complete  safety, then  the  person  has  a                                                               
defense. The  jury may agree that  the person didn't see  that he                                                               
could retreat  with safety; therefore his  belief was reasonable;                                                               
therefore  his  use of  deadly  force  was  justified -  even  if                                                               
displaced.                                                                                                                      
                                                                                                                                
The  sponsor and  others have  said that  this legislation  would                                                               
spare people  the burden of coming  to court if the  situation is                                                               
close. "I  would submit to  you that's  a bad reason,"  she said.                                                               
This is about taking a human  live balanced against why it had to                                                               
happen.                                                                                                                         
                                                                                                                                
9:51:37 AM                                                                                                                    
MS. MCLEAN said  it's easy to think about this  in personal terms                                                               
and that  as a law abiding  citizen you should be  able to defend                                                               
yourself if someone  is aggressive and you're afraid.  The law is                                                               
on your  side in that  instance and  DOL supports that.  But this                                                               
legislation  will apply  to people  who are  not law  abiding. It                                                               
will apply to gang members who  would have a defense for shooting                                                               
on sight were this legislation  to pass. She cited a hypothetical                                                               
example.                                                                                                                        
                                                                                                                                
CHAIR FRENCH  asked what happens  when a bullet that's  aimed and                                                               
fired  in self  defense doesn't  hit the  intended target  but an                                                               
innocent bystander.                                                                                                             
                                                                                                                                
MS.  MCLEAN said  if self  defense was  justified, then  the fact                                                               
that  an  innocent bystander  was  killed  is justified.  It's  a                                                               
complete defense; you're not guilty.                                                                                            
                                                                                                                                
Florida was the first  state to pass a similar law  in 2005 and a                                                               
recent  University of  Miami law  review  article concluded  that                                                               
it's difficult to measure what  isn't getting charged. The author                                                               
talked about  the scenario  of two gang  members and  an innocent                                                               
nine-year-old  child  who  was shot  and  killed.  Both  shooters                                                               
raised self defense and both were acquitted.                                                                                    
                                                                                                                                
GRIS  SMITH,  President,  Alaska   Pyrotechnic  Guild,  said  the                                                               
organization is 100 percent in support  of HB 381. Today it seems                                                               
that crooks have all the  legal rights while victims have minimal                                                               
rights. This bill evens the score, he said.                                                                                     
                                                                                                                                
9:55:39 AM                                                                                                                    
CHAIR FRENCH recessed the meeting to the call of the chair.                                                                     
                                                                                                                                
3:33:53 PM                                                                                                                    
CHAIR FRENCH  reconvened the Senate Judiciary  Standing Committee                                                               
meeting at  3:33 p.m. Senators Coghill,  Wielechowski, and French                                                               
were present at the call to order.                                                                                              
                                                                                                                                
          HB 324-FAILURE TO APPEAR; RELEASE PROCEDURES                                                                      
                                                                                                                                
3:34:06 PM                                                                                                                    
CHAIR  FRENCH announced  the consideration  of HB  324 and  noted                                                               
that the committee  heard the companion Senate bill,  SB 252, [in                                                               
February]. [CSHB 324(FIN) was before the committee.]                                                                            
                                                                                                                                
SUSAN  MCLEAN, Director,  Criminal  Division,  Department of  Law                                                               
(DOL), said  HB 324  relates to bail  and conditions  of release.                                                               
She reported that  DOL has worked closely with the  chair of this                                                               
committee, the  House, the court  system, and the defense  bar to                                                               
arrive at  a consensus. HB 324  is very similar to  the companion                                                               
bill, SB  252, but  there have been  changes since  the committee                                                               
heard the Senate  bill. She said she would put  the major changes                                                               
on the record.                                                                                                                  
                                                                                                                                
3:35:06 PM                                                                                                                    
Section 1  pertains to the  crime of  failure to appear.  Page 2,                                                               
lines 4-5,  provides a mental state  for the crime of  failure to                                                               
appear whereas the  Senate version didn't specify  a mental state                                                               
for failing  to appear. HB 324  requires the state to  prove that                                                               
the person knew that  he or she had to appear  at a specific time                                                               
and place and  that the person acted with  criminal negligence in                                                               
failing to do so.                                                                                                               
                                                                                                                                
Section 3  pertains to release  procedures. The  original version                                                               
required the court  to prepare a report  on previous applications                                                               
for   bail  review   when  it   was   considering  a   subsequent                                                               
application.  The  court  thought  that was  burdensome  and  DOL                                                               
agreed to remove that section.                                                                                                  
                                                                                                                                
Section  4 pertains  to release  before  trial. Page  7, line  8,                                                               
talks about when  the court is making a finding  about the amount                                                               
of  bail or  the  conditions that  are going  to  be imposed.  In                                                               
certain  circumstances  there's  a  rebuttable  presumption  that                                                               
there are no  conditions of release that would  assure a person's                                                               
appearance.   Page  7,   lines   13-15  narrows   the  types   of                                                               
circumstances to which the rebuttable  presumption can apply. The                                                               
previous version  would have  applied to anyone  who has  a prior                                                               
felony conviction and is before the  court and charged with a new                                                               
felony. The new  paragraph (B) is limited to  individuals who are                                                               
charged with  a crime against  a person  under AS 11.41  and have                                                               
been previously convicted  of a crime against a  person, which is                                                               
a significantly smaller universe of people.                                                                                     
                                                                                                                                
Section  5  pertains  to  third-party  custodians.  The  previous                                                               
version  said  that  the  court had  to  personally  address  the                                                               
proposed third-party custodian. That has  been changed to make it                                                               
clear that the  court may also use a telephone  or other approved                                                               
technology. The  previous version also  said that anyone  who was                                                               
convicted of a  misdemeanor or felony within the  past five years                                                               
could  not be  appointed  as a  third-party  custodian. This  was                                                               
particularly  burdensome  for  rural   courts  because  it  would                                                               
critically  limit  the  pool.  That  was  changed  so  that  only                                                               
individuals who have  been convicted of a crime  against a person                                                               
within the past  three years would be prohibited  from serving as                                                               
a third-party custodian.                                                                                                        
                                                                                                                                
3:39:09 PM                                                                                                                    
Section  10   pertains  to   release  after   conviction  pending                                                               
sentencing and  appeal. The previous  version said that  a person                                                               
previously convicted of  a felony who has just  been convicted of                                                               
a  class B  or  class  C felony  and  is  awaiting sentencing  or                                                               
appeal, could not be released  pending sentencing or appeal. That                                                               
has  been changed  to now  apply only  to a  person who  has been                                                               
convicted of  class B felony.  Previously the bill  provided that                                                               
people convicted  of class A  and unclassified felonies  were not                                                               
subject  to  release at  the  moment  that  the jury  returned  a                                                               
verdict. This just extends it to class B felonies.                                                                              
                                                                                                                                
MS. MCLEAN said  those are the major changes  since the committee                                                               
last saw the bill.                                                                                                              
                                                                                                                                
CHAIR FRENCH  directed attention  to a conceptual  amendment that                                                               
is largely based  on provisions in HB 283.  It pertains primarily                                                               
to Section 4  of HB 324, but  changes to Sections 3 and  5 may be                                                               
necessary. He asked Mr. Svobodny to comment on the general idea.                                                                
                                                                                                                                
3:41:12 PM                                                                                                                    
RICK  SVOBODNY,  Deputy   Attorney  General,  Criminal  Division,                                                               
Department  of Law  (DOL), said  he knows  that the  committee is                                                               
looking primarily at the addition  of paragraph (13) from Section                                                               
4 of  [HB 283]. Although  DOL thinks it's a  good idea to  have a                                                               
condition  of sentencing  or a  suspended imposition  of sentence                                                               
that  would   prohibit  someone   from  consuming   alcohol,  the                                                               
provision is written in a  manner that causes some legal concern.                                                               
Basically  it says  that the  court  can order  the defendant  to                                                               
refrain from  consuming alcohol  for a  period of  time including                                                               
the term  of the sentence  and as  a condition of  probation. The                                                               
judge  already   has  the  ability  to   prohibit  somebody  from                                                               
consuming alcohol as a condition  of probation, but that decision                                                               
is  based on  a  finding that  alcohol provides  a  nexus to  the                                                               
crime, not by clear and  convincing evidence as subparagraphs (A)                                                               
and (B)  would require. The  legal concern is that  including the                                                               
word  probation  takes  away  the   power  of  the  court  to  do                                                               
probation.                                                                                                                      
                                                                                                                                
3:43:06 PM                                                                                                                    
SENATOR EGAN joined the committee.                                                                                              
                                                                                                                                
MR.  SVOBODNY  suggested  the  committee drop  the  words  "as  a                                                               
condition of probation" from page 3, lines 16-17.                                                                               
                                                                                                                                
CHAIR FRENCH  said he'd keep  that under advisement. He  asked if                                                               
the matter gets more or  less complicated if you consider Section                                                               
3 on page 2, which relates to Title  4. [HB 283 Sec. 3. amends AS                                                             
04.16.160(a).]                                                                                                                  
                                                                                                                                
3:44:23 PM                                                                                                                    
MR.  SVOBODNY  said he  didn't  have  a conceptual  problem  with                                                               
including Section  3, but he  didn't want  to make a  decision on                                                               
the fly.                                                                                                                        
                                                                                                                                
CHAIR FRENCH said he'd hold it in abeyance.                                                                                     
                                                                                                                                
SENATOR WIELECHOWSKI read Section 3  and observed that it adds AS                                                               
12.55.015(a)(13), which is Section 4.                                                                                           
                                                                                                                                
3:46:54 PM                                                                                                                    
MR. SVOBODNY said he believes that's right.                                                                                     
                                                                                                                                
CHAIR FRENCH said it adds that a  judge can order a person not to                                                               
consume alcohol as part of a sentence for perhaps another crime.                                                                
                                                                                                                                
SENATOR WIELECHOWSKI  said it seems eminently  reasonable that if                                                               
a judge  orders a person  not to consume alcohol,  they shouldn't                                                               
be able to buy it either.                                                                                                       
                                                                                                                                
MR. SVOBODNY expressed  reluctance to shoot from  the hip because                                                               
this involves working back through several statutes.                                                                            
                                                                                                                                
3:48:42 PM                                                                                                                    
CHAIR FRENCH  asked what  the penalty  is for  a violation  of AS                                                               
04.16.160. [An answer was not forthcoming.]                                                                                     
                                                                                                                                
SENATOR COGHILL observed that the  court is already doing this to                                                               
some degree  and it sounds  like this  would be more  rather than                                                               
less  restrictive.  He said  he  believes  that the  sponsor  was                                                               
trying  to put  in  place a  mark  on a  driver's  license as  an                                                               
enforcement mechanism.  Section 1, which amends  AS 04.16.047(a),                                                               
talks about producing your license  in order to purchase alcohol,                                                               
so these restrictions  would probably be more  appropriate to the                                                               
seller  of alcohol  than to  the  enforcer of  the provision,  he                                                               
said.                                                                                                                           
                                                                                                                                
CHAIR FRENCH  reviewed Section 1  and observed that it's  in part                                                               
aimed at enforcement by the private sector.                                                                                     
                                                                                                                                
MR. SVOBODNY  pointed out that  AS 04.16.160(b)  supports Senator                                                               
Coghill's statement.                                                                                                            
                                                                                                                                
3:51:41 PM                                                                                                                    
SENATOR WIELECHOWSKI  referenced paragraph (13)  on page 3  of HB                                                               
283 and suggested that including  the phrase "order the defendant                                                               
to refrain from consuming or  purchasing alcoholic beverages" may                                                               
get to  the sponsor's intent.  That would  be a violation  of the                                                               
court order and  the sentence or penalty would be  ordered by the                                                               
judge.                                                                                                                          
                                                                                                                                
CHAIR FRENCH  highlighted that this  changes AS 04.16.160  and he                                                               
still  didn't  know  what  the  penalty  is  for  violating  that                                                               
section.                                                                                                                        
                                                                                                                                
MR. SVOBODNY said he believes  the penalty is in [subsection (b)]                                                               
and it's that you get the letter "A" on your driver's license.                                                                  
                                                                                                                                
REPRESENTATIVE HARRY CRAWFORD, sponsor of  HB 283, chimed in that                                                               
the penalty  is a red  slash on your  license and a  $1,000 civil                                                               
fine.                                                                                                                           
                                                                                                                                
3:53:07 PM                                                                                                                    
CHAIR  FRENCH asked  Mr. Svobodny  if  he agrees  that there's  a                                                               
civil  enforcement  to section  .160  and  there's also  the  red                                                               
slash.                                                                                                                          
                                                                                                                                
MR. SVOBODNY indicated he wasn't willing to give an answer.                                                                     
                                                                                                                                
3:53:24 PM                                                                                                                    
CHAIR FRENCH said  he'd hold that thought for the  time being. He                                                               
then asked Mr. Svobodny his view of Section 5 in HB 283.                                                                        
                                                                                                                                
MR. SVOBODNY said it appears to  be a savings clause for the type                                                               
of  concern he  raised earlier  about probation.  The problem  is                                                               
that if you read Section 4  to be anything other than sentencing,                                                               
the burden  of proof is  substantially different - it's  by clear                                                               
and convincing  evidence. The state  doesn't have a  problem with                                                               
it being a condition of the  sentence just like the conditions in                                                               
paragraphs  1-12, but  when you  move  on to  areas where  judges                                                               
generally already  have that authority  it restricts  the court's                                                               
ability  to  impose  alcohol  restrictions   as  a  condition  of                                                               
probation. Suspended  imposition of  sentence is actually  a form                                                               
of probation  so that is also  a concern. DOL wants  the court to                                                               
have the ability  to make restrictions on alcohol  a condition of                                                               
the sentence. For example, if somebody  had a $10,000 fine and no                                                               
jail  time,  the  court  could   impose  that  as  an  additional                                                               
condition of the sentence.                                                                                                      
                                                                                                                                
MR.  SVOBODNY   summarized  that   he  is  concerned   about  the                                                               
probationary types  of sentences, like a  suspended imposition of                                                               
sentence or probation itself.                                                                                                   
                                                                                                                                
CHAIR FRENCH said  he still didn't have a clear  idea of his view                                                               
of Section 5.                                                                                                                   
                                                                                                                                
MR. SVOBODNY said it's a savings  clause to allow judges to order                                                               
the prohibition against consumption of  alcohol as a condition of                                                               
sentence.                                                                                                                       
                                                                                                                                
CHAIR FRENCH asked  if he's saying that he would  prefer that the                                                               
sentence  end  after  the  word   "sentence"  rather  than  after                                                               
"probation."                                                                                                                    
                                                                                                                                
At ease from 3:56 p.m. to 3:58 p.m.                                                                                             
                                                                                                                                
CHAIR FRENCH reconvened  the meeting and asked  Mr. Svobodny what                                                               
wisdom and insight  he and Ms. McLean had gained  in the last few                                                               
minutes.                                                                                                                        
                                                                                                                                
MR. SVOBODNY suggested  that the language on page 3,  line 15 [HB                                                               
283] should read, "order the  defendant to refrain from consuming                                                               
alcoholic beverages  during the term  of the sentence."  He would                                                               
delete the remainder  of the paragraph, whereas  Ms. McLean would                                                               
leave  that remaining  language intact.  In subparagraph  (A) she                                                               
would say,  "the defendant was  convicted of a felony."  and drop                                                               
the  rest of  the language.  In subparagraph  (B) she  would say,                                                               
"the  defendant was  convicted of  a misdemeanor."  and drop  the                                                               
rest of the language.                                                                                                           
                                                                                                                                
MS. MCLEAN  said if she were  doing the rewrite it  would read as                                                               
follows:                                                                                                                        
                                                                                                                                
     (13)  order the  defendant  to  refrain from  consuming                                                                    
     alcoholic  beverages for  a period  of time,  including                                                                    
     during the term  of any sentence and as  a condition of                                                                    
     probation,    suspended    sentence,   and    suspended                                                                    
     imposition of sentence, if                                                                                                 
          (A) the defendant was convicted of a felony                                                                           
            and the court finds that the defendant's                                                                            
         conduct   constituting    the   offense   was                                                                          
           substantially influenced by consumption of                                                                           
          alcoholic beverages.                                                                                                  
          (B)   the  defendant   was  convicted   of  a                                                                         
          misdemeanor  and the  court  finds, based  on                                                                         
          the defendant's  history, there is  reason to                                                                         
          believe….                                                                                                             
                                                                                                                                
She  added that  although that  is  what she  would suggest,  she                                                               
would defer to Mr. Svobodny who is her boss.                                                                                    
                                                                                                                                
4:00:47 PM                                                                                                                    
MR. SVOBODNY  pointed out that  the problem with  that suggestion                                                               
is  that  judges  oftentimes  want  to impose  no  alcohol  as  a                                                               
condition of probation.  Although the person may  have been sober                                                               
when  they committed  the crime,  they  may have  a long  history                                                               
before the  court of alcohol-related  offenses. As long  as there                                                               
is  a nexus  to the  person's  rehabilitation, the  court can  do                                                               
that. Ms. McLean's suggestion is a nexus to the crime.                                                                          
                                                                                                                                
4:01:41 PM                                                                                                                    
SENATOR WIELECHOWSKI  described his preference for  the amendment                                                               
[using page 3, paragraph (13) of HB 283 as a guideline]:                                                                        
                                                                                                                                
     (13) order the defendant to refrain from consuming or                                                                      
     purchasing alcoholic beverages for a period of time if                                                                     
          (A) the defendant was convicted of a felony and                                                                       
     the   court   finds   that  the   defendant's   conduct                                                                    
     constituting the  offense was  substantially influenced                                                                    
     by the consumption of alcoholic beverages; or                                                                              
        (B) the defendant was convicted of a misdemeanor                                                                        
       and the court finds that, based on the defendant's                                                                       
     history…"                                                                                                                  
                                                                                                                                
MS.  MCLEAN  said  she  now understands  what  Mr.  Svobodny  was                                                               
saying, which is  that there may be a crime  where the person was                                                               
not drinking but  they have a pattern of  criminal, often felony,                                                               
behavior  and that  behavior generally  involves drinking.  Under                                                               
current  case law  it's possible  for the  court to  impose a  no                                                               
drinking  condition  even  though alcohol  wasn't  involved  this                                                               
time.  The  court  wants  the person  to  survive  probation  and                                                               
recognizes  that the  person probably  won't if  they drink.  Mr.                                                               
Svobodny is  infinitely quick and  he would put the  period after                                                               
the word "felony" and after the word "misdemeanor," she said.                                                                   
                                                                                                                                
CHAIR FRENCH asked Mr. Svobodny  what his preference would be for                                                               
the amendment.                                                                                                                  
                                                                                                                                
4:03:45 PM                                                                                                                    
SENATOR MCGUIRE joined the committee.                                                                                           
                                                                                                                                
MR.  SVOBODNY said  he starts  from the  premise that  the entire                                                               
section is about what a judge can  do as a sentence - like impose                                                               
jail  time, a  fine, or  restitution.  He would  suggest it  say,                                                               
"order  the defendant  to refrain  from  consuming or  purchasing                                                               
alcoholic beverages."                                                                                                           
                                                                                                                                
SENATOR WIELECHOWSKI said that keeps it simple.                                                                                 
                                                                                                                                
CHAIR  FRENCH agreed  and asked  Senator Wielechowski  if he  was                                                               
ready to state the amendment.                                                                                                   
                                                                                                                                
SENATOR WIELECHOWSKI confirmed that he was ready.                                                                               
                                                                                                                                
CHAIR  FRENCH  asked Mr.  Svobodny  if  he was  comfortable  with                                                               
Section 3, Section  4 as discussed, and Section 5.  He noted that                                                               
a title change would be necessary in any event.                                                                                 
                                                                                                                                
Ms. McLean indicated they were comfortable.                                                                                     
                                                                                                                                
MR. SVOBODNY stated  for the record that Section 3,  Section 4 as                                                               
amended, and Section 5 are okay with the state.                                                                                 
                                                                                                                                
4:06:16 PM                                                                                                                    
SENATOR  WIELECHOWSKI moved  a  conceptual  amendment to  include                                                               
from CSHB 283:  Section 3 and Section 5 as  currently written and                                                               
Section 4 as follows:                                                                                                           
                                                                                                                                
      AS 12.55.015(a) would have a new paragraph (13) that                                                                      
      says, "order the defendant to refrain from consuming                                                                      
     or purchasing alcoholic beverages."                                                                                        
                                                                                                                                
CHAIR FRENCH  found no objection,  and announced  that conceptual                                                               
Amendment 1  was adopted and that  there would be a  title change                                                               
as necessary  to conform to  the amendment as passed.  Finding no                                                               
further committee discussion, he asked for a motion.                                                                            
                                                                                                                                
SENATOR  WIELECHOWSKI  moved   to  report  CS  for   HB  324,  as                                                               
conceptually    amended,   from    committee   with    individual                                                               
recommendations, attached  fiscal note, and the  recognition that                                                               
a title change would be necessary.                                                                                              
                                                                                                                                
CHAIR FRENCH announced that without  objection, SCS CSHB 324(JUD)                                                               
moved from the Senate Judiciary Standing Committee.                                                                             
                                                                                                                                
4:08:23 PM                                                                                                                    
There being no further business to come before the committee,                                                                   
Chair French adjourned the Senate Judiciary Standing Committee                                                                  
meeting at 4:08 p.m.                                                                                                            
                                                                                                                                

Document Name Date/Time Subjects