Senate Judiciary & Rules Committee

 

2003 Minutes

 

January 8, 2003
January 13, 2003
January 15, 2003
January 17, 2003
January 20, 2003
January 22, 2003
January 24, 2003
January 27, 2003
January 29, 2003
January 31, 2003

February 5, 2003
February 7, 2003
February 10, 2003
February 12, 2003
February 17, 2003
February 19, 2003
February 21, 2003
February 26, 2003
February 28, 2003

March 3, 2003
March 5, 2003
March 7, 2003
March 10, 2003
March 12, 2003
March 14, 2003
March 17, 2003
March 19, 2003
March 24, 2003
March 31, 2003

DATE: January 8, 2003
TIME: 1:30 pm
PLACE: Room 437
MEMBERS PRESENT: Chairman Darrington, Vice Chairman Lodge, Senators Sorensen, Richardson, Bunderson, Davis, Sweet, Marley, Burkett
Introductions

Chairman Darrington welcomed members of the Senate Judiciary and Rules Committee indicating Senators Bunderson, Sweet, Marley and Burkett were not on the committee last year. He also introduced Marianne Hansen, returning for her third year as committee secretary and Jared Larsen from Declo, Idaho, who will serve as the Committee's Page for the first half of the 2003 session. Chairman Darrington indicated the committee secretary needs to leave the meeting prior to adjournment so another secretary will finish taking the minutes.
RS12510

Amend Idaho Death Penalty Statutes

Caralee Lambert, who works for Legislative Services and drafted the proposed legislation, explained that RS 12510 would amend Idaho's death penalty statutes to comply with the June, 2002, United States Supreme Court decision in Ring v. Arizona which invalidated Idaho's death penalty law because the judge, not the jury, made the determination on whether to sentence the defendant to death. The Court held that the Sixth Amendment requires that the jury make that determination. The bill would also set forth a mandatory minimum of life imprisonment if any statutory aggravating factor is found and would require the judge to inform potential jurors at the outset of jury selection if the death penalty is not a sentencing option. A copy of Ms. Lambert's testimony is attached to the minutes held in the office of the Senate Judiciary and Rules Committee.

MOTION: Senator Davis moved that RS12510 be introduced for print. The motion was seconded by Senator Sorensen and approved by voice vote.
UPDATE State Appellate Public Defenders Office (SAPD)

Molly Huskey, the State Appellate Public Defender, gave a brief overview of SAPD. The office was created at the same time as the Capital Crimes Defense Fund but SAPD funding comes from a legislative appropriation; they do not receive money from the Defense Fund. SAPD is a self-sufficient agency; their FY03 budget was $1.2 million and the office billed $1.5 million. They have a Capital Litigation Unit and an Appellate Unit. These units provide two types of services to the counties. They handle post conviction hearings in capital cases where the conviction occurred after September, 1998 and, if lost, they handle the subsequent appeal. If the case is won, the office does not handle the resentencing because the case goes back to the county for appointment of counsel. They also handle all of the direct appeals for felony cases including direct appeal, post convictions and habeas claims. The Appellate Unit opened 547 cases last year and 518 cases in 2001. The SAPD caseload averages about 65 per attorney compared to a national average of about 25. All counties benefit from the creation of this office because they pay in a percentage based on their population. The total paid by counties is $500,000 and last year the counties received about $1.5 million from SAPD. The only county not participating is Jefferson County.

The SAPD office currently has five death penalty cases. Because of Ring v. Arizona SAPD anticipates two cases will go back for resentencing and the other three cases may or may not go back. The U.S. Supreme Court must decide whether Ring v. Arizona applies to cases still pending in state court or whether it would retroactively apply to all cases on death row that are still in state and federal proceedings. The decision could have a huge financial impact on Idaho. One of the goals of SAPD is to handle cases correctly from beginning to end so it is more cost effective for taxpayers.

Tony Poinelli, representing the Idaho Association of Counties, briefly discussed the Capital Crime Defense Fund. To date expenses have totaled just under $720,000 and there is currently a balance of $1.3 million in the Fund. There have been 13 cases brought before the Capital Crimes Board. The Shackleford case from Latah County is the largest; the Capital Crime Fund has spent over $420,000 on that case. Establishing the Capital Crime Defense Fund has saved the counties a tremendous amount of money.
Adjournment: There being no further business, the meeting adjourned at 2:25 p.m.




DATE:

Monday, January 13, 2003

TIME:

1:30 pm

PLACE:

Room 437

MEMBERS

PRESENT:

Chairman Darrington, Vice Chairman Lodge, Senators Sorensen, Richardson, Sweet, Marley, Burkett

MEMBERS

EXCUSED:

Senator Bunderson and Senator Davis

MINUTES:

Senator Burkett made a motion to approve the minutes as written. Senator Lodge seconded the motion which was carried by a voice vote.

RS12324

Brent Reinke, Director of the State of Idaho Department of Juvenile Corrections, presented this legislation, relating to support of juveniles, to clarify provisions requiring support. The intent of this legislation is that parents pay, in whole or in part, the state’s cost for the care and treatment of the juvenile offenders in the Idaho Department of Juvenile Correction custody. Whenever a juvenile is placed by the court in custody other than that of the juvenile’s parents, or legal guardian designated to care for them, the court may order that the parent pay a reasonable sum, as directed by the court to cover in whole or in part the support and treatment of the juvenile. If the parent refuses, then the court may proceed against them for contempt, and in the form of a civil judgment. Senator Sorensen asked what avenues are possible to recover the funds if the parents refuse to pay. Mr. Reinke said at the present time, his department has no way to collect . Formerly, the Department of Health and Welfare was able to collect these funds for IDJC through the child support system. Federal child support collection rules and funding make that system no longer viable. For that and other reasons, IDJC’s collection of money from parents has steadily declined, negatively impacting the state’s general fund. Senator Burkett asked why Health and Welfare was not collecting this payment anymore, and was told that the department found they were out of compliance and are prohibited from this collecting procedure. He deferred to Nancy Bishop, from the Attorney General’s office and she explained that because of federal audit, Heath and Welfare can’t get their federal funds if they open any new cases for Department of Juvenile Corrections.

MOTION:

Senator Sorensen made a motion to send RS 12324 to print. Second was by Senator Lodge and the motion carried by a voice vote.

RS12325

Brent Reinke, asked that this legislation, amending Section 67-2342 to add that “deliberations of the Custody Review Board are not to be held in open meetings”, be withdrawn as there were some concerns with it. Senator Darrington accepted the withdrawal of RS12325 and it was returned to the sponsor.

RULES REVIEW:

The meeting was turned over to Vice-Chairman Lodge to conduct the rules review of the Department of Juvenile Corrections.

IDAPA 0501.03

Rules of the Custody Review Board. Brent Reinke told the committee that these rules identify a system for appointment of 4 board members by the Director. The Board’s mission is to decide whether or not juveniles age 19 should remain in custody for an extended time to address their accountability, community protection and their competency development. These decisions are based on hearings, similar to those of the Pardon’s and Parole Board. Currently, Senator Lodge serves on this Board which meets 6 times a year or as needed and hears cases of juveniles within six months of them turning 19. Hearings were held last week and were very successful. Nancy Bishop explained that these meetings are 90 minute hearings and they could hold four a day. The juveniles were asked if they knew the adult penalty in the adult system for the crime they had committed in Juvenile court. They were quite affected by the information they received about this penalty. Senator Lodge asked if these interviews helped the juveniles to be more aware of what they need to do while in custody to adapt when they are released, and was told it helps a great deal. Mr. Reinke told the committee that it is very beneficial for them to know that someone is monitoring them, and that the accountability is a real asset. Another advantage of the Custody Review Board is that they can help to mainstream these juveniles into society, but they will be on the registry until they are 21, and it is easier to develop resources for a 19 year old.

 

Basically the rules for the Custody Review Board are the same as other rules. There is a definition of terms, powers and duties, structure of the board, hearing schedules, review process, persons to attend or comment, conflict of interest and victims testimony. The offender should hear from the victim and the family.

Department

REVIEW:

Mr. Reinke also gave an update on the IDJC (See attached sheet #1) and talked about recidivism. As defined by the IDJC, recidivism is the act of “being adjudicated or convicted of a new felony or misdemeanor that is not a status offense or probation violation.” Using this definition, and a time series limitation of 24 months after release from the Department’s custody, Idaho’s recidivism rate is 50.2%. This means that after a lengthy two year follow-up period, 49.8% of juveniles committed no additional acts of crime. The Idaho 2002 Juvenile Recidivism Report marks a significant event in the Idaho juvenile justice system. This report examines recidivism and recommitment rates among 1,026 juveniles who were released from the Idaho Department of Juvenile Corrections from FY 98 to FY 01.


Mr. Reinke also reported that there is a serious need for substance abuse programs at the local level, and additional space for female offenders.

Adjournment:

Meeting was adjourned at 2:40 p.m.





DATE:

Wednesday, January 15, 2003

TIME:

1:30 pm

PLACE:

Room 437

MEMBERS

PRESENT:

Chairman Darrington. Vice Chairman Lodge. Senators Sorensen. Richardson.

Bunderson, Davis, Sweet, Marley, Burkett

MINUTES:

Senator Richardson made a motion to accept the minutes as written. Second was by Senator Marley and the motion carried by a voice vote.

RULES MOTION:

Senator Lodge had visited with Carl Bianchi of Legislative Services on the rules for the Juvenile Custody Review Board and found that all rules were temporary and she made a motion that the rules of the Custody Review Board of the Department of Juvenile Corrections be approved. Second was by Senator Sweet and the motion carried by a voice vote. The rules will be added to the omnibus resolution at the end of the session.

 

Tom Frost representing the Idaho Supreme Court presented a series of bills that the Supreme Court has recommended in its annual report to the Governor the concern defect or omissions in the laws.

RS 12511

This bill amends Section 18-310 to restore a persons civil rights, including the

right to possess a firearm, upon completion of a sentence for conviction of a

felony, except in respect to certain crimes, one of which is “lewd conduct with a minor child under the age of sixteen.” This crime is identified by statute number as 18-1508 (3), (4), (5) and (6), Idaho Code.̓ There are no subsections in 18-1508 and this bill removes these subsection numbers.

RS 12512

This bill amends Section 19-514 to provide that when a defendant is charged with a felony, the defendant must be taken before a magistrate who conducts a preliminary examination of the charge. The practice of taking testimony by a

stenographer no longer exists and this bill eliminates that requirement.

RS 12513

This bill amends Section 19-3934 relating to the setting of bail for a person after arrest. This is to eliminate archaic references to “probate and justices” Courts which are no longer in existence.

RS 12514

This bill amends Section 1-506 and repeals Section 1-507, relating to the printing of the Idaho Supreme Court reports to remove outdated language requiring the printer to furnish 400 copies of each volume of the Idaho Reports and also furnish a $500 performance bond in respect to the printing contract.

RS12515

This bill corrects a typographical error in Section 2-208. Idaho Code, relating to the qualification of prospective jurors for jury duty.

MOTION:

Senator Burkett made a motion to Send RS12511, RS12512, RS12513, RS12514, and RS12515 to print. Second was by Senator Lodge and the motion carried by a voice vote.

 

GUBERNATORIAL APPOINTMENT

 

Dan Charbonneau, appointed to the position of Director, Idaho State Police for a term commencing January 2, 2003 and continuing at the pleasure of the Governor.

 

Mr. Charboneau said he “fell in love with law enforcement” and has been with the Idaho State Police since 1970, starting as a Cadet Officer in the jail while attending Boise State University, advancing to Trooper, Special Agent, Captain of Field Operations, which was later Deputy Bureau Chief. In 1997 he was named Bureau Chief of Bureau of Forensic Services, responsible for scientists who conducted analysis of crime scene evidence collected by law enforcement agencies. In 1999, he became investigations Major for the ISP, and in 2002 was public safety and Security Major for the ISP, responsible for Homeland Security and coordination with federal and local law enforcement as well as, Cyber Crimes, Executive Protection and Alcohol Beverage Control.

 

Senator Darrington asked what he could forsee in the near future, and was told that the meth labs are an epidemic and growing in Idaho. One ounce was $1200 a few years ago, and now costs $450 which means there is a good supply. There were 186 meth lab busts in 2000, 147 in 2001, and 121-130 in 2002, 121-130, which gives officers a chance to check on them more closely.

 

Senator Darrington asked Capt. Charbonneau if there are enough troopers on the road in various parts of the state to protect the citizens. He responded that 10 positions were to be cut in FY 2003, so they eliminated administrative and management positions to preserve the field officers.

 

Senator Bunderson asked what goals he would like to accomplish. The Captain replied that he is comfortable with the organization of 3 years ago. There are some on staff that could retire within the next 3-5 years and they need to train younger officers, but the program to mentor them has been eliminated. He would like to see some of the older officers retire, and stay in the organization, but it needs a lot of changes. The department is as “lean and mean” as they can get to deal with the budget constraints that they are under.

 

Senator Davis asked if there were some empty slots in the academy and has this impacted services of officers in the field. He was told that there are 17 empty slots and it has very much impacted the force, but they don̓t want to hire new officers, train them and have to lay them off in a year or so, as Oregon recently had to do. At the time, the agency has 526 employees, 239 commissioned officers which include 66 investigators.

 

In answer to Senator Burkett’s question about Homeland Security. Capt. Charboneau stated that he is still in contact with the FBI as a part of the Homeland Security and Joint Terrorism task force. They conference call weekly and have joint meetings once a month. Basically, it is a skeleton force working very hard. The Bureau of Disaster Service is working with the military and the captain works with them as well. He reported that after September 11, they had so much information coming in from sources that they didn’t know what was credible. They had to take that information and react to it to safeguard the State of Idaho. Later, they found out that a great deal of information was sifted out of al Qaeda caves.

 

Senator Bunderson was concerned that with the decrease in numbers of personnel, that citizens were more at risk, He was told that there could be increased crime and it takes longer to respond and investigate. The men and women of the Idaho State Police are committed to safety of Idahoans and realize that we don’t invest our time and money unless it is necessary.

MOTION:

Senator Darrington asked the committee if they would desire to take action on the appointment of Mr. Charboneau today. Senator Davis made a motion to recommend to the full Senate that they appoint Dan Charboneau as Director of the Idaho State Police. Second was by Senator Lodge and the motion was carried by a voice vote.

 

RULES of the IDAHO STATE POLICE- Pending Rules

11.05.0

Rules Governing Alcohol Beverage Control - Peg White presented these rules which allows the renewal of licenses to sell alcohol to be staggered to accommodate population increases. This rule was a temporary rule last year and has been very successful.

11.07.01

Motor Vehicles Rules - General Rules

11.07.02

Rules Governing Safety Glazing Material

11.07.03

Rules Governing Emergency Vehicles/Authorized Emergency Vehicles - the preceding three rules have not had substantive changes but are just to give information.

11.10.03

Rules Governing the Sex Offender Registry - When there is a change in the status of an offender, there is an obligation to let the law enforcement know of these changes within 5 days. Also, the photos previously used were taken by the drivers license department. Now, they are digital photos, so that ruled needed to be changed. Also, information may released to the appropriate agencies through electronic access. Senator Davis asked for a definition of status. Ms White commented that it is a universal definition always found in Section 10. The offender must let Law Enforcement know within 5 days if they move to another state, county, or actual residence and also whether they enroll as a student or become an employee of a school, college or university, part-time or full time.

11.11.02

Rules of the Idaho Peace Officer Standards and Training Council for Juvenile Detention Officers - There are no changes to this rule that has been adopted as a pending rule upon review and approval by the 2003 Legislature as a final rule.

11.11.03

Rules of the Idaho Peace Officer Standards and Training Council for Juvenile Probation Officers- This section is new, but the rule is similar to what is in place at the present time, This section is to establish uniform standards, criteria and operating procedures for county juvenile probation services, as well as qualifications for the training of juvenile probation officers. Senator Bunderson as if some officers are not required to go through POST. The sheriff of each county, the director of ISP, and just a few others in Idaho are exempt. The requirement for successful completion of the POST Academy will be waived if the officer scores a minimum of 75% on a challenge examination administered by POST. There can be two attempts to pass the exam no less than 30 days apart and no more than 6 months apart. If both these attempts fail, the officer must successfully complete the POST Basic Juvenile Probation Academy to be certified.

11.21.01

Rules Governing Record Checks for Transfers of Handguns - The chapter containing this rule was repealed in its entirety. From April 1994 to November 1998, the ISP performed instant background checks. In 1998 the FBI assumed that responsibility and this chapter is not needed in law anymore.

MOTION:

Senator Davis made a motion to recommend to the full Senate, the Rules adopted by the Idaho State Police. Second was by Senator Sweet and the motion carried by a voice vote.

 

PENDING FEE RULES for the Idaho State Police - Peg White

1101-0201

Rules of the POST. This rule defines who is a prosecuting attorney. Most of the teaching is done by Deputy Prosecuting attorneys and there could be a liability if this position wasn’t defined. The Executive Director has the authority to waive some misdemeanors, except willful concealment or a petit theft conviction, then the application would be referred to the whole POST Council. Section 079 is a new rule dealing with the training required for certification in the Patrol-to-Detention Academy, and defines the breakdown of the 130 hours required. Ninety hours are received at the training academy and 40 hours received in jail training in the officers agency. This is only a minimum and additional instruction is necessary if the proper training of a detention officer is to be accomplished. The longer an officer has been out of commission, the more training they have to do, If it has been 8 years, then they are required to go back to POST. Senator Bunderson questioned if the fees are adequate to pay the cost, and was told they were and if they are found to be not realistic, they will change. Senator Richardson asked how long these rules have been out to the public. Ms. White said some had been in circulation since December 2001, some in early 2002. If the agency submits a rule too late, as in July or August, they must only be done as a temporary rule and would then only be out since the first part of November, 2002. She also stated that there have been no complaints on these rules from Law Enforcement, the Attorney General, Adult Correction, Association of Counties, and Cities, Chief of Police, and others.

MOTION:

Senator Bunderson made a motion to accept the Idaho State Police Pending Fee Rules. Second was by Senator Marley and the motion carried by a voice vote.

 

Senator Darrington told the committee that Mike Becar will appear before the committee to correct a technical issue on POST, and he also asked Captain Charboneau to stand for questions from the committee. Senator Burkett asked if the Homeland Security Federal information sources were better than before 9-11 or is Idaho’s assessment different. The captain responded that on a National Level there is a mechanism to local Law Enforcement to enable them to be aware of information. He said the biggest problem is the “Intelligence Wall” which is information withheld from the public that escaped before the credibility could be established. When Idaho put information, they tried to put credibility on it and act responsibility. He feels they did the best job they could with that information they had. Senator Darrington commented that when he was in Washington D.C. he was able to visit the control room in the center of the capitol and see 12 people around a table verifying information. Today, information is being processed and verified and law enforcement is reacting to protect people. Senator Burkett mentioned that people in his district are concerned about terrorist groups in Idaho. Have anything been done to excite groups in Idaho to carry out terrorism. Captain Charboneau said there is a strong group of domestic terrorists in Idaho, and he is 60-70% more concerned about them than terrorists from overseas. Oregon and Utah have also put together a terrorism taskforce, and federal agencies are valuable to help them work on these issues.

 

Senator Darrington thanked Captain Charboneau for his forthrightness in answering questions and appreciated the handout on the mission statement, values, vision statement, statutory authority, and the agency structures and services. (Attachment #1) He also informed the committee that S1001, the death penalty bill, would be heard on Friday with testimony limited to 3 minutes.

Adjournment:

Meeting was adjourned at 2:47 p.m.





DATE: Friday, January 17, 2003
TIME: 1:30 pm
PLACE: Room 437
MEMBERS PRESENT: Chairman Darrington, Vice Chairman Lodge, Senators Sorensen, Richardson, Bunderson, Davis, Sweet, Marley, Burkett
MINUTES: Senator Bunderson made a motion to accept the minutes of January 15 as written. Second was by Senator Lodge and the motion carried by a voice vote.
S1001 Relating to murder; amending section 18-4004, Idaho Code, to revise the punishment for murder to provide that a notice of intent to seek the death penalty shall include a listing of statutory aggravating circumstances, to provide that the state may amend the notice of intent prior to trial upon a showing of good cause and to provide that the court shall inform potential jurors at the outset of jury selection if the death penalty is not a sentencing option.

Senator Darrington pointed out that contrary to what has been in the media, this bill isn't a quick fix, and wasn't done in a hurry, but it is a fix. Contemplation of imposing the death penalty is a serious and sobering concern. This was done with much deliberation, consideration and input from a lot of people over the fall and winter months. To give everyone interested an opportunity to talk, testimony will be limited to 3 minutes and will alternate between the proponents and the opponents of the legislation from those who signed up to testify.

Caralee Lambert, from Legislative Services, who drafted S1001, presented this legislation at the request of the chair. This bill was intended to bring the Idaho death penalty in compliance with Ring vs. Arizona. On June 24, 2002, the United States Supreme Court issued the Ring v. Arizona decision, which effectively invalidated Idaho's death penalty law. Under current law, where a defendant is found guilty of first-degree murder and the death penalty is sought, the court orders a pre-sentence investigation and holds a sentencing hearing to evaluate any aggravating and mitigating circumstances. The determination of whether to sentence the defendant to death is then made by the judge, not the jury.

In the Ring opinion, the Supreme Court found that aggravating circumstances (one of which must be found before the death penalty can be imposed) operate as the "functional equivalent of an element of a greater offense" and therefore the Sixth Amendment requires that these circumstances be found by a jury, not a judge.

Following the Ring decision, on August 6th, 2002, a unanimous Idaho Supreme Court vacated a death sentence in the case of State vs. Fetterly and remanded the case for re-sentencing in the district court. In its decision, the court stated that the Ring decision "appears to invalidate the death penalty scheme in Idaho" insofar as under Idaho law, the sentencing judge is authorized to make factual findings of the aggravating circumstances and thereby impose the death sentence.

As amended, Section 18-4004 provides that in a first-degree murder case if the jury (or the court if a jury is waived) finds a statutory aggravating circumstance beyond a reasonable doubt, but finds that the death penalty would be unjust, the defendant will receive a fixed life sentence. Under previous law, the defendant would have received a life sentence with a minimum 10 years of confinement, so this is a new mandatory minimum provision. This section also provides that if no statutory aggravating circumstance is found or if the death penalty is not sought, then the court shall impose a life sentence with the minimum ten year confinement period. This is the same as in previous law insofar as the sentencing is concerned, but here, it is the jury who determines whether aggravating circumstances exist, not the court (unless the jury is waived).

Section 18-4004A relates to notices of intent to seek the death penalty: As amended this section would require the state to include in its notice of intent any statutory aggravating circumstance that it will seek to establish in a death penalty case. The notice may be amended prior to trial upon a showing of good cause. A new subsection has also been added to this section to require judges to inform potential jurors at the outset of jury selection if the death penalty is not a sentencing option.

As Section 19-2126 now provides, the jury is to be sequestered until the special sentencing proceeding is completed. This also provides that the jury shall be informed on a number of matters regarding sentencing. First, if the jury finds a statutory aggravating circumstance and does not determine that any mitigating circumstances exist that would make the death penalty unjust, the defendant will receive the death penalty. Second, if the jury finds a statutory aggravating circumstance but cannot unanimously agree that any mitigating circumstances exist that would make the death penalty unjust, the defendant will receive a term of life imprisonment without the possibility of parole. Finally, if the jury does not unanimously find any statutory aggravating circumstance, the defendant will be sentenced to life with a fixed term of imprisonment of not less than ten years

Application of the Act is set forth and provides that this act would apply to capital sentencing proceedings occurring after the act's effective date. This includes cases where the murder occurred before the effective date of this act and cases where a murder conviction or death sentence occurring before the effective date of the act has been set aside and the case is now before the court for retrial or re-sentencing. BUT: The act's provisions relating to mandatory fixed life sentences (this is where a statutory aggravating circumstance is found) apply only to crimes occurring after the effective date of the act. Furthermore, the notice of intent provisions apply only to cases where the entry of a plea occurs after the effective date of the act. Importantly, the act is not to be construed to invalidate any death sentence that has been imposed prior to the effective date of the act. An emergency clause has been included, meaning that this act will take effect immediately upon passage and approval.

Greg Bower, Ada County Prosecuting Attorney, expressed thanks to Senator Darrington and Representative Debbie Field for working on this legislation. He told the committee that on June 24, 2002 when the Ring decision was handed down, Idaho realized they had issue that needed to be addressed very quickly. "With Mr. Bogert's help from the Governor's Office, we were able to very early on to focus efforts on the Ring Issue. Several states who had judge rather than jury sentencing found themselves on the wrong side of the Supreme Court decision. Different states responded in different ways - Nebraska, New Mexico, and Colorado held special sessions. We gained considerable insight from the experiences they went through and were able to bring their experiences to the table in meetings with Caralee Lambert, Senator Darrington, Rep. Field, the Attorney General, prosecuting attorneys, SAPD, private counsel, representatives of the courts and other agencies who had interest in this legislation. These parties sat around the table for four long sessions and came up with a consensus for this legislation to address the Ring issue and put Idaho back on course in regard to the death penalty. Whether it will correct cases that are not on direct appeal, or whether it will correct cases that are past direct appeal, or those that occurred since June 24, but before the date that this bill is hopefully signed by the Governor are a complex set of issues, the Prosecuting Attorneys feel this bill will solve the problem.

Tom McCabe, a defense attorney in Boise told the committee that many years ago, he was a combat officer who was trained by the U.S. Army to kill people, and he understands the idea that the Government has the power and the duty to kill in behalf of other people. In his experience as a defense attorney, he was appointed to defend Don Fetterly in 1983, who did murder a person, was tried and sentenced to death in 1984. In 1989 Mr. McCabe was appointed to review that decision and determine if all the procedures required by the Constitution have been complied with. By that process, in early 1990, he approached the AG office and pointed out that there was a problem with the sentencing in this case and suggested that it go back for a re-sentencing. This proposal was rejected, but in 1999, after nine years of litigation, Idaho conceded that re-sentencing was appropriate. His client sat on death row from 1990 until 1999, while Mr. McCabe fought with the state on whether he should again be reviewed by a judge. In 1999, it was ordered that he be re-sentenced, which he was in 2000 and received the death penalty. This case was then handed over to the SAPD Office. While this case was on direct appeal, the Ring decision came down. "So, the latest incarnation of State vs. Fetterly is the first decision in Idaho that applies the Ring decision," Mr. McCabe stated. "As a result of that, Mr. Fetterly has been sent back for yet another re-sentencing, has been taken off death row, because there is no death sentence now that is valid. At the present time, we are again starting the litigation to determine whether he should be executed by the State of Idaho. I am here today not to point to the particular problems, but rather to point out that we in society, we in the State of Idaho need to take some serious time and take some serious consideration as to whether this is the best way we can operate as a society and whether we really need to execute people."

Senator Davis asked if he believed S1001 would properly apply to Ring and will address the situation. Mr. McCabe replied that the bill goes further than Ring, and actually it provides protections that aren't mandated by Ring. "Even though those protections are provided, and that includes jury sentencing, I question whether we as human beings are capable of doing a good enough job that we as a society could feel good about killing a human being" he commented. Senator Davis wants comfort that if this legislation was before the U.S. Supreme court and if they had the same thought process as at the time Ring was applied, would that court hold S1001 to be constitutional, in your opinion. Mr. McCabe answered with regard to the specific focus the Ring decision had of whether death is appropriate, "it satisfies that, but the one thing I question, is the language in the Ring decision that is quoted from another decision that seems to suggest it not only should be a notice of an intent to seek death, but it should be charged as an aggravator and charged at the earliest opportunity, that instead of just a notice it is actually in the indictment or in the complaint and then ultimately in the information."

Senator Davis said his understanding was that the notice prior to commitment of trial does have to occur and that notice must state the aggravated circumstances that counsel intends to use, and they have the right to amend it up to trial but at no time from that point forward. Mr. McCabe responded that this is his understanding of the bill as it sits, but his concern is that there is some language in Ring that suggests that it shouldn't just be a notice, it should be charged. The Ring decision is based on Apprendi vs New Jersey. The Apprendi decision says if you are going to allege something that can increase the maximum sentence, it must be charged. There is a follow-up decision after that, Adams, and that decision says it must be charged in an indictment, it must be found by a jury and must be beyond a reasonable doubt. "That is the one aspect, that I wonder about, but trying to foresee what the nine seers in Washington, D.C. will decide sometime down the road about this particular bill, is a very difficult process," Mr. McCabe stated.

Senator Burkett asked "with respect to the notice in charging pro- cedure, does this bill require the notice to be provided at the charging stage, or even before and then does it provide for a potential amendment to that notice of a later crime, up to trial? How does Ring address that? Does Ring require that the notice and the charging language be at the time of the charge or right up to the time of trial.

Mr. Mc Cabe responded "I don't think Ring addresses that. My conclusions to that are not shared by all attorneys, but my concerns are that one of the cases sighted in Ring, refers to the idea that if it is going to be an aggravator, it must be charged, then heard by the jury and found beyond a reasonable doubt So, in terms of will the court apply that language quoted in Ring to this bill several years down the road, that is a very open question, and we just don't know."

Senator Bunderson continually receives comments from constituents concerned that when a person is on death row, and is in fact guilty, the appeals go on and on and the appeals have nothing to do with guilt. Basically, a person is sentenced to life without parole if they go on death row, in this state, because we never execute. It has been a long, long time, but the great frustration in the minds of the ones who call me, ask 'how can this be...the incessant appeals'. The Senator asked Mr. McCabe to comment on that.

He answered that "In my opinion, as a criminal defense attorney, my proudest days were trying to prevent the State of Idaho from killing a man, regardless of what he had done. It was my belief that if we were going to do that, we should take all the time necessary, have as many people review it for as long as necessary, to make sure it was done in a constitutional manner, and that all the aspects of the case be considered. In regard to the first re-sentencing I was able to present to the court a myriad of information about my client's background, that was never submitted in 1984 and was never made a part of the record. Even though, the second judge also chose again to impose death, he imposed that on different grounds than the first judge did, and found that the mitigating evidence that he was able to present outweighed the single aggravator that is now available with regard to his client. Sometimes the oath of an attorney is to do the best he can for the client, so if that means filing one more appeal, means going to one more courthouse, and asking one more judge to look at this to see whether it is right or wrong, that is the attorney's duty, and that is what I did for over 10 years, and I am proud to be back representing him again, even though he is a convicted murderer."

Roger Bourne, from the Prosecuting office stood before the committee to answer any questions, but first spoke for a minute about how Ring has affected the death penalty. Ring took discretion from the judges -The courts used to be able to do it all, have it all, they could decide aggravators and mitigating and do the weighing. Ring says they can't do that anymore, the jury has got to find the aggravators, and then the judge can impose the sentence later on. The intent of this legislation is to require the jury to find the aggravators. It goes one step beyond and allows them to do the weighing of the mitigation versus the aggravator and by so doing, impose the sentence. We are trying to look around the corner, as we suspect the U.S. Supreme Court may be going that direction now, and we don't want to find that in 5 to 10 years, what they really meant was jury sentencing and then we would have to do this over again. We are now having to look at all the old cases that weren't done with Ring. It also brings U.S. into line with the rest of the states who have the death penalty on the books and do death sentencing by jury. The other thing is we are trying to prevent delay and cut down some of the cost. As it stands now, a sentencing in a death penalty case occurs as short as 9 months or as long as a year or two, and we want to accomplish this all at one time.. Everyone comes in and testifies, the decision is made and then it is done. We are giving the authority to the jury to make the decisions that the Supreme Court may require in the future. This legislation brings U.S. into Ring compliant and will head off some of the problems that could be seen. It gives the judges the authority to impanel juries to do sentencing where a sentence will be undone as a result of a Ring decision. If the Ring is applied retroactively to Creech, Sivak and Row, whom I have been involved with for the last 20 years in their convictions, it will give an Ada County judge the authority to call a jury and redo that sentencing if that has to be done.

Senator Richardson has received a lot of mail from people thinking that the death penalty may be eliminated, but he feels the decision is not whether we have a death penalty or not, but who shall make the decision for the penalty of death. He was told by Mr. Bourne, that this legislation speaks to the question of who imposes the penalty. This puts that decision in the lap of the jury where the U.S. Supreme Court says it has to be, in terms of finding the aggravating circumstances.

Senator Burkett commented after reading the bill and listening to the print hearing and now the discussion today, it seems that there is a second principal point, and that is the minimum mandatary sentence for those where the death penalty is not imposed but there is one aggravating factor found in litigation that counteracts that. He asked Mr. Bourne to address this issue. Mr. Bourne responded that there were three reasons this was written in. " First, we think it is proper for the people who commit crimes and by so doing, also commit aggravating circumstances to receive a fixed life sentence. The aggravators set these murders apart from the run of the mill murder. Aggravators are for people who commit multiple, for hire, have prior murder convictions, or those especially atrocious or cruel murders or where there is torture involved. We feel under those circumstances, if there is enough mitigating circumstances to keep them from the death penalty, they should be kept apart from the rest of U.S. for the rest of their lives. Also, in a case, when we are asking a jury to make that important decision, they should have the necessary options available, and this legislation allows the jury to decide if there is going to be a death penalty, and if not, a mandatory life sentence and if not that, should the case be sent back to the judge to make the ultimate decision. They should have both these options to weigh, so they know the outcome. Also, there won't be a lot of those that the judges are empowered to give now, and that is the proper thing to balance authority." Mr. Bourne told Senator Burkett that the judges have the authority to give a fixed life, instead of the mandatary minimum as it stands now with a fixed 10 year sentence.

Mia Crossthwaite legislative liaison spoke for the Catholic church. which supports an abolition to the death penalty because in the words of Pope John Paul II it is "cruel and unnecessary." She told the committee that capital punishment is not the only way to protect society from violent criminals Today there is the ability to enforce a fixed life sentence without chance of parole. She quoted, "Modern society has the means of protecting itself, without definitively denying criminals the chance to reform." Reform is not only good for the criminal, but it's good for the victim's families. When Timothy McVeigh was executed, the opportunity for the victims' families to eventually hear a real and genuine apology died along with him. The Catholic Church is unconditionally pro-life and advocates for the lives of those unable to advocate for themselves, especially the unborn, and also for the lives of those guilty of the most horrific crimes, those prisoners on death row. We oppose violence in our society and support all efforts to respect each and every human life. She urged the committee to oppose reinstatement of the death penalty and instead impose a moratorium in its place.

Mike Henderson, Attorney General's office, told the committee that the Attorney General supports the death penalty. Their efforts were to come up with a bill that would meet the requirements of Ring and allow the courts to apply the criteria that this legislature has set for sorting out those worthy of the death penalty from those who are not, and to do so in a fashion that is effective and fair and in a way that is likely to be upheld by the higher court. S1001 represents a successful outcome of those efforts.

Ann Pasley Stewart, representing herself not as a lobbyist, is opposed to S1001 on moral grounds as she doesn't not believe that taking a life is justified unless you or your family is threatened. She also expressed opposition because she thinks our current Judicial system is unreliable- it is unfair, capricious, arbitrary, and discriminates against minorities and the poor. In August 2001, Charles Fein was released after 17 years on death row because DNA evidence revealed that someone else committed the crime of which he was accused. There is a national error rate of 68%,due to poor counsel, poor judges, minorities in all white juries and other reasons. We need to do everything we can to protect the innocent, as our whole system of justice was founded on the assumption that a person is presumed innocent until proven guilty. She also urged the committee to consider the cost if nothing else. The cost of executing someone is almost twice that of life imprisonment according to a study done by Duke University. The cost of executing someone is between 2.1 and 2.3 million where the cost of keeping someone on death row is $40,000 a year. She asked the committee to vote no on S1001.

Mike Bogert mentioned that the Governor looked forward to the deliberations of today in bringing S1001 to his desk for signature. He appreciates the leadership spent in bringing those to the table to work on this. It is important that the deliberations that took place were very important. We feel that this bill is very narrow in its scope and applications. All this bill does is to provide, and this is important, additional protection for criminal defendants under the 6th amendment. It provides for the aggravators and mitigators as the Supreme Court indicated in Ring is appropriate. The Idaho statute was mentioned in the Ring decision. This is a technical change in the law which we think furthers constitutional interest in terms of criminal defendants appropriately receiving jury treatment in the sentencing phase of their trial. He handed out a letter from the Governor addressing concerns about mandatory minimums, which are acknowledged in the body of the bill as a substantive change in the law. (A copy is on file in the secretary's office.)

Marty Durand, representing the American Civil Liberties Union of Idaho spoke in opposition to S1001, as they oppose capital punishment because they believe it is unfair and ineffective. The possibility of executing the innocent is too great. Over 100 death row inmates nationwide have been released because they were innocent. We know that the criminal justice system wrongfully sentences innocent people to death and in Idaho, we know their names....Fain and Paradis. We have exonerated more people than we have executed and we should not be comfortable with a system that produces these results. We cannot accept the chance of executing the innocent, as we could become murderers. The death penalty is costly and every dollar spent on a capital case is a dollar we can't spend somewhere else. The death penalty is much more expensive than its closest alternative­life imprisonment without the possibility of parole. Life in prison punishes the offender and protects the community. Life in prison permits the correction of error, death does not.

Paul and Shirley Bloomberg, the parents of Samantha Maher, who was murdered by Darrell Payne on July 6, 2002 were invited to address the committee. Mr. Blomberg spoke in support of S1001, as their daughter was randomly abducted on the Boise Greenbelt, where she was kidnaped, raped, abducted and placed into a dairy slurry. He told the committee that he supports this bill and submitted a booklet with a picture of Samantha and the findings of the trial. He prayed on the committee "that God will put upon your heart to do what is right."

Shirley Blomberg told the committee that "somewhere along the line, something happened to right and wrong. And now it is who puts on a better argument. Facts are, when a cold-blooded killer takes someone's life, they take it upon themselves to impose a death sentence on someone, carry out the death sentences and yet they don't deserve life. Our system, as I am finding out first hand, doesn't work because we have lost sight of the fact, that when you have a killer who is guilty with DNA evidence, with all the proof in the world, and he is guilty, why should there be years of appeals? Someone like that deserves death and they deserve it fast. I resent some people putting a dollar amount on my child's head because it would cost more to execute someone than to keep them in prison for life. Maybe it does, and if it does, they don't get executed, so they serve no purpose at all...they are a waste of time, they are a waste of money and they are a waste of space. They need to die and within a reasonable amount of time, and they should have just as many rights as Samantha had which is zero." Mr. Blomberg finished up by saying that he has struggled with the death penalty, that he spent a lot of time in the Bible and a lot of time in prayer and it is righteousness and it is the right for evilness. We must rid ourselves of evil, as it says biblically.

Senator Darrington expressed thanks to the Blombergs for their testimony today after the grief they have suffered.

LaMont Anderson, chief of Capitol litigation for the Attorney General's office, and was involved in the in the drafting of this bill. He addressed specifically, the sequestration of the jury. That is really nothing more than a clarification of the code as it is stated in Section1921-26. In capitol cases, and it only refers to Capitol cases, the jury shall be sequestered at the time that the case is submitted. That means that once closing arguments are completed, and the jury is to go back to the foreman and make a determination of guilt and innocence, that they are sequestered at that time. It would be a violation of that statute if the jury were allowed to go home in between the determination of guilt and the sentencing hearing and the determination of the ultimate sentence. The case has already been submitted to them once, and it needed to be clarified that during that period of time, when the guilt phase has been submitted, that the jury is sequestered until they render their verdict, not only as to guilt, but as to ultimate penalty in the case. In addition to make sure that is clear, it will eliminate the possibility that a friend or family member would lobby the juror.

Dennis Benjamin, attorney for the Idaho Association of Criminal Defense Lawyers spoke in opposition to the S1001, as the bill goes beyond what is required by United States Supreme Court. Ring v. Arizona only requires the jury to determine whether a defendant may be sentenced to death. It does not require the jury to sentence. He feels it is fiscally irresponsible to reinstate the death penalty without knowing its true cost, and this bill would do that. Also, he told the committee that whatever the cost, the death penalty hasn't done anything to help the victim, as it has been a failure in Idaho. Of the 36 people sentenced to death since 1976, 19 are still on death row, averaging 11 years in prison, 10 were resentenced and are now serving a non-death sentence, 3 were released from custody, 2 are awaiting re-sentencing, 1 conviction was overturned by federal court, on appeal to the 9th Circuit, 1 was voluntarily executed. As many Idaho death row inmates have been found to be innocent as have actually been executed.

Molly Huskey, the SAPD, who participated in the deliberations, spoke in support of S1001. From a defense prospective, given the political constructs of the death penalty, they are interested in justice, not simply executions. It is her job to advocate for the death penalty clients that the officer serves, whether to file appeals, or participate in meetings in which legislation is drafted, it is her job to effectively advocate for them in whatever arena she can. By participating in this bill, and as recognized by several individuals who have already spoken, this bill provides additional protections for defendants that was not there prior. These protections are dictated by the U.S. Supreme Court and not by a committee who was looking for ways simply to do so. It brings the death penalty in line with the Ring decision.

Senator Davis said that in her prior life, Ms. Huskey was the prosecuting attorney in Bonneville county and asked if in her opinion, it requires in the statute requirement to list the aggravating circumstances. She responded that the Ring decision does not require that the aggravators be pled in the initial charging document. There are some references in the opinion that it might be required, and the Supreme Court may at a later date say that it is necessary, however, this bill does provide that the state provide notice at a very early date of the aggravating circumstances upon which they would be relying. It does address that requirement as best as they can with the information they have,.

Senator Burkett asked what the problem was in putting aggravating circumstances in the charging document, perhaps allowing it to be amended at a later date. He wondered why the committee working on this, preferred notice instead of putting it in the charging document and not having to worry about that future extension of Ring. Ms. Huskey answered that if the items are required to be pled in the information in the initial document, there are times when the state may not have that information available. To amend it later would defeat the purpose of requiring them to plead it initially because they could change it later, so our bill simply allows them to file it after the initial document but to only amend it up to the date of trial.

Rap Howell, representing himself though he is an ordained deacon in the Roman Catholic Church in the diocese of Boise, and also is a certified clinical social worker in the State of Idaho, practicing here for 17 years. In his experience as a social worker, he has worked very closely and known very well two men who are in the state prison serving time for murder. The crimes they committed were horrible. There is no question that neither of them deserve the death penalty and fortunately they didn't receive it. For many, true justice means revenge in equal measure. If you kill, you will be killed, and we do not do this in such systems in America. It places the government in a reactionary rather than a leadership role, and this attitude is reflected in our citizens. Historically, true justice has a much different meaning than revenge.

Mike Waslager, from Boise, supports S1001, as his daughter was a friend of Samantha Maher. Darryl Payne took Samantha's life for no reason other than his own personal satisfaction. "I am still haunted by the video of his bragging about the acts of violence he committed.", he told the committee, and "I am not here today just because of what this evil person has done, as there are other people in this sate that are just as evil that will commit crimes as violent or worse than my own experiences."

Some opponents of this bill may argue that this is "cruel and unusual", but the death penalty is not unusual. Societies throughout history have sanctioned executions under the law. The framers of the Constitution, mindful of the bizarre and torturous methods of executions, such as boiling a prisoner alive in oil, or burning them at the stake, put those words in the Constitution in the Eighth amendment to forbid "cruel and unusual punishment". They had no problem with implementing the death penalty. What has happened in our society is that the "cruel and unusual punishment" is what is inflicted upon the victims of these crimes and that is the tragedy. Many people say that the death penalty will bring closure to the victim's families. There is no closure, but what the death penalty does provide is justice.

Roger Bourne summarized by answering some of the questions during the hearing. One area of question seemed to focus on the notice requirements. When the state gives notice to the defendant to seek the death penalty, as part of that notice, they are also given notice of the aggravating circumstances that they are relying on that supports the death penalty. That has to be given to them within 30 days of the defendant's entering of a "not guilty" plea. By doing that, this gives them months of notice. As it stands, a person has to be tried within 6 months of the date of the "not guilty" plea. In murder cases, it is often much longer than that, usually a year or more after the "not guilty" plea before the case goes to trial. The reasons we don't do it in the charging document, is that oftentimes, in the rush to do the investigation of the crime of the person charged, we don't know all that we need to about that person...what their background is, what their convictions are, etc. Secondly, this is in line with the practice that we have in filing what we call in formations, part 2, which are the persistent violators charges. If a person has two prior convictions, then a part two is filed that asks for an extended sentence, and that is how that procedure stands now. This puts them in line with the way things are primarily done.

Senator Richardson asked Mr. Bourne to address Mr. Benjamin's comments about the death penalty. He answered that since the Ring decision was decided by the U.S. Supreme Court, every state in the country, except Nebraska has jury sentencing. If we were out on our own with Nebraska, who does it part by the jury and part by the judge, that would be brave on our part. We are in line with what the other states are doing. Before last summer, we had a judge decide on the death penalty and then the Supreme Court said we couldn't do that anymore, and after that we don't have a death penalty procedure in place, and we won't unless we pass this or something like it.

MOTION: Senator Sorensen made a motion to send S1001 to the floor with a do pass. Second was by Senator Davis. Senator Sorensen said that after listening to the discussion today, the basic issue addresses procedural issue and whether it fits in with the Ring decision or not, and this legislation does bring our laws into compliance. The question that has been brought up, is whether we should have the death penalty or not, and this opens it up for question, but our basic philosophy of the death penalty hasn't changed because of the Ring decision. The Blomberg's brought up the issue of cost, and there is no cost that could compare to the cost of the loss of a loved one's life, and that seems to be an argument brought up over and over. That should be put aside, and this does address the Ring decision very well putting it in compliance.

Senator Richardson said the decision is whether we do what the death penalty indicates. We don't have a decision--it is very obvious. I am in favor of the death penalty and in visiting the prison yesterday and walking down death row, seeing the cells with the small rectangular windows where those men are confined for 23 hours of every day, I had to ask myself which is really the cruel and unusual punishment, and I have made up my mind.

Senator Davis requested a roll call vote.

Senator Bunderson commented on the way the system is operated in the past, where a judge makes a determination. This legislation causes a unanimous requirement on the part of the jury, and now we have a much broader number of people making this decision. The amount of error that could occur, is diminished, so this legislation proves that objection quite powerfully.

Senator Burkett said he believed the Ring decision was the right decision and the effort by the State of Idaho to bring our compliance with Ring v Arizona and he supports those portions of the bill that attempt to do that. He thinks that the death penalty is not working, as most people wish they would, and it is appropriate that the death penalty be reviewed, but that wasn't the purpose of this bill. There are issues of cost, issues of examining the religious ethics and beliefs as to how they apply to the death penalty and we could determine a better way to apply a death penalty, make it more certain and exact and most people would like to see that. With regard to this bill, he can support the Ring v Arizona, but the problem is, there is no notice about parole being a substantive provision.

There was a lot of confusion about this bill, and most people don't know about whether we were reviewing the death penalty or not, and now there is the added confusion about adding the mandatary minimum sentence in the State of Idaho. I think that sort of legislation deserves its own hearing, it's own notice, review and testimony. Including this fixed sentence as part of what the public knew was a consideration of Ring v Arizona ,started things down a slippery slope of consolidating issues and having things passed through the legislature without a full consideration and notice. For that reason, and for that limited reason, he suggested that provision be extracted from it. The drafters of the bill could delete about 15 words, and it could be amended.

SUBSTITUTE

MOTION:

Senator Burkett made a substitute motion to send the bill to the 14th order for amendment to look at the provision for the fixed sentence. He would like to see that come back as a separate bill. Second was by Senator Marley.
Senator Davis told the committee that the single subject rule has not been violated, and that this was an attempt to undermine S1001. This bill deals with the sentencing process for those individuals convicted of first degree murder. As to the question of notice being given - in the print hearing, Chairman Darrington wanted to make sure there was plenty of time for individuals to be aware of the bill, and S1001 has been noticed up for today.
VOTE: Roll call vote was taken on the substitute motion, with Senators Marley and Burkett voting aye and Senators Darrington, Sorensen, Richardson, Bunderson, Davis and Sweet voting no. Motion failed. Vote was then taken on the Original Motion which carried by a unanimous aye vote. S1001 will be sent to the floor with a do pass and will be sponsored by Senator Darrington on the floor.
Adjournment: Meeting was adjourned at 2:57 p.m.




DATE: Monday, January 20, 2003
TIME: 1:30 pm
PLACE: Room 437
MEMBERS PRESENT: Chairman Darrington, Vice Chairman Lodge, Senators Sorensen, Richardson, Bunderson, Davis, Sweet, Marley, Burkett
MINUTES: The minutes are still being edited and verified and will be available for review in the next committee meeting.
GUBERNATORIAL APPOINTMENT
Molly J. Huskey - reappointed to the State Appellate Public Defender for a term commencing September 13, 2002 and expiring August 1, 2006.
Ms. Huskey was interviewed for this position, was asked why she wanted to be SAPD. She represents indigent individuals in our society which have been convicted of felonies, some of which have been given the death penalty. In some respects, it is a difficult job because she sees many who have committed offenses against children, and she has young children. Yet, even more important is that the person who is considered by many to be the lowest person in our society has rights that are upheld and has someone who will advocate for them, even if at times it means reprobation from other colleagues and their circles. She said she takes her duties very seriously, she loves the work she does. She is proud of the work she does, and she has to have that kind of pride in her work to do the job that is expected of her.

Senator Darrington asked her what would happen down the road with some potential re-sentencing hearings and how the budgetary constraints would let her office deal with them. She said that it is difficult to speculate about the budgetary impact of either the Ring or Atkins decision. There is one who clearly fits within Ring, apart from Mr. Fetterly who has already been resentenced, that they believe will be resentenced. Their office will not bear the cost of that re-sentencing, and should he receive life that may resolve whether there are future appeals in his case. As it stands now, the budget that they have now, has allowed them, despite the financial crisis to still adequately and effectively represent our clients and do what needs to be done. She is fairly conservative with the money, recognizing that she has to balance the needs of the clients with the practical reality of what the financial situation of this state is. If they can't address the issues of the client, it would result in the case coming back a third time at county expense.

Senator Richardson asked about the size of the department. Ms. Huskey, said there are three units in the department. First, there is the administrative. Who is the office administrator and herself. Then there is a capital litigation unit with there is a chief who is an attorney, and one staff attorney, a mitigation specialist, and a secretary. Then there is the appellate unit, the chief who is an attorney, 6 full time staff attorneys, and 2 support staff. There is also one individual that is hired on contract to do conflicts, so there are about 16 people.

Senator Darrington commented that the Assn. of Counties and also the Assn. of Cities have spoken to the effectiveness of the help to them from the SAPD office. The confirmation of Ms. Huskey will be voted on at the next committee meeting.

RS12409 Senator Bart Davis was asked by Dale Higer, who is recovering from surgery, to present this RS from the Commission of Uniform State Laws, of which he is a member. This legislation is to modify Idaho's version of the Uniform Interstate Family Support Act to make it consistent with the adopted modifications by the National Conference of Commissioners on uniform state law.
MOTION: Senator Sorensen made the motion to send RS12409 to print. Second was by Senator Lodge and the motion carried by a voice vote.
RS 12412 Senator Davis told the committee that this relates to the taking of a child's testimony in a different way than you normally would a typical witness, both in criminal and non criminal proceedings. This is a unique and substantial change for lawyers across the country and Idaho is the first to look at this legislation.
MOTION: Senator Sorensen made a motion to send RS12412 to print. Second was by Senator Burkett and the motion carried by a voice vote.
RS12495 Senator Davis presented this legislation, which is not from the Uniform Act, and deals with failure to carry and maintain auto insurance. Locally, magistrate judges are reading the statute to say that if a person is given a citation for failure to carry and maintain auto insurance as an infraction, they are not able to impose restitution. So, if someone is involved in an accident and the court issues an order as it relates to failure to maintain auto insurance, the court is without any ability to compel any payment of restitution. Also this provides that the registration of the vehicle and the license plates be canceled if a person fails to carry and maintain auto insurance .

Senator Bunderson expressed concern that if an individual is cited more than 2 or 3 times, and can be incarcerated, this could compound the problem in the jails. He feels there are other ways to extract punishment than to put the individual in jail.

MOTION: Senator Sorensen made a motion to send RS12495 to print. Second was by Senator Lodge and the motion carried by a voice vote.
RS12496 This legislation is similar to RS1295 just printed, with one exception, as it does not include the cancellation of registration. Senator Darrington asked if these two pieces of legislation could co-exist and was told that they were different approaches to the same problem. Senator Burkett asked if restitution would apply to a person even if they were not at fault in the accident. Senator Davis said that he didn't draft this legislation, but it was a good point, and he would take a look at it.

Senator Richardson asked if these two pieces of legislation were an either/or option, or could these both apply to an individual. He was told that only one of these two pieces of legislation would become law in the State of Idaho. Senator Bunderson had received a letter from Sheriff Nourse of Canyon County, noting that individuals driving without privileges was becoming a major problem, and a number were being incarcerated because they didn't know they were driving without privileges . Over 60,000 citations were issued in Idaho last year. There is also a concern for the treatment of vehicles that are impounded. Senator Bunderson felt we need to make sure we are not at cross-purposes in these pieces of legislation. Senator Darrington commented that he gets more mail from those in his district concerning this issue than any other topic.

MOTION: Senator Sorensen made a motion to send RS12496 to print. Second was by Senator Burkett and the motion carried by a voice vote.
RS12568 When this is printed it will go directly to the floor and will not come back to our committee. Senator Davis presented this as the new majority leader, being his first opportunity to appear in front of this committee on the second half of the name. " We think of it as the Judiciary Committee, but it is also the Rules Committee" he said. He is representing the majority caucus and asking the committee to change one of its rules. He asked the minutes reflect that this legislation is in behalf of the majority caucus to change Rule Four, adding the pledge of Allegiance to the second order of business, following the prayer. Immediately following the prayer, the page who sits in the front seat, on the right, will now be sitting in the "pledge" chair. They will stand where the chaplain stood, and lead the pledge of allegiance. The next day's journal will reflect the name of the page that led the pledge the previous day. Senator Burkett told the committee that the minority caucus will gladly join in support of this legislation.
MOTION: Senator Richardson made a motion to send RS12568 to print. Second was by Senator Sweet and the motion carried by a voice vote.
RS12585 Senator Darrington explained that the Idaho State Bar has a client security fund which costs $10 per bar member, to reimburse those who were wronged by an attorney. The legislation is to change the name of the fund from "Client Security Fund" to "Clients Assistance Fund," and also raise the fee to $20.00.
MOTION: Senator Sorensen made the motion to send RS12585 to print. Second was by Senator Marley and the motion carried by a voice vote.
Adjournment: Meeting was adjourned at 1:55 p.m.
DATE: Wednesday, January 22, 2003
TIME: 1:30 pm
PLACE: Room 437
MEMBERS PRESENT: Chairman Darrington, Vice Chairman Lodge, Senators Sorensen, Richardson, Bunderson, Davis, Sweet, Marley, Burkett
MINUTES: Senator Richardson made a motion to approve the minutes of January 17 as written. Second was by Senator Sorensen and the motion carried by a voice vote. Senator Bunderson made a motion to approve the minutes of January 22 as written. Second was by Senator Sorensen and the motion carried by a voice vote.
VOTE: Gubernatorial appointment of Molly J. Huskey to the SAPD for a term to expire August 1, 2006. Senator Bunderson made a motion to accept the re-appointment of Ms. Huskey as the State Appellate Public Defender and recommend to the Senate that she be confirmed. Second was by Senator Richardson and the motion carried by a voice vote.
HCR 004 Jeannine Wood, Secretary of the Senate, presented a series of resolutions to the committee as part of the printing contracts. This resolution provides for the printing of the House and Senate bills, resolutions, memorials and amendments. She told the committee that it is very hard to get bids anymore and the State printing shop was the most economical and the most convenient.

Senator Sorensen asked if there had been less paper usage, as computers are being used more and more. Mrs. Wood told the committee that they had cut 50 copies from last year. There is a copy machine in the Mail Room if more copies need to be printed on demand.

Senator Richardson asked for an average cost of printing for the last 10 years. Mrs. Wood didn't have averages for that time frame, but for February of 2002, the printing cost for the journals and bills for that month was $6800. Senator Bunderson asked if the correctional industries are capable of doing this type of printing and possibly could be checked with for the printing for next year.

MOTION: Senator Sorensen made a motion to send HCR004 to the floor with a do pass. Second was by Senator Lodge and the motion carried by a voice vote. Senator Darrington will carry this on the Senate floor.
HCR 005 This resolution provides for the printing of the House and Senate legislative daily journals and the State Print Ship runs them for $18.00 a page. The Secretary of the Senate's office sends them down at night; they are back up in the morning as by law they have to be back by 9 a.m.
MOTION: Senator Sorensen made a motion to send HCR005 to the floor with a do pass. Second was by Senator Richardson and the motion carried by a voice vote. Senator Lodge will carry this on the Senate floor.
HCR 006 This resolution provides for printing the House and Senate legislative permanent journals . The State print shop doesn't do permanent journals, so Custom Printing publishes the paper bound journal for the Attorney General, President of the Senate, Senate Pro Tem, Secretary of the State and the Speaker of the House.
MOTION: Senator Sorensen made a motion to send HCR006 to the floor with a do pass. Second was by Senator Lodge and the motion carried by a voice vote. Senator Sorensen will carry this bill on the Senate floor.
HCR 007 This resolution provides for the printing of Session Laws. Mrs. Wood told the committee that Caxton Printers from Caldwell has done the session laws for years. Senator Sorensen was concerned that only Caxton printers gets contacted, but Mrs. Wood replied that it is almost impossible to find someone who does hardbound binding anymore. Caxton does SMYTHE binding which is very sturdy and can withstand the use the books receive.
MOTION: Senator Sorensen made a motion to send HCR007 to the floor with a do pass. Second was by Senator Lodge and the motion carried by a voice vote. Senator Richardson will carry this bill on the Senate floor.
S1002 This bill will be heard on Monday, January 27.
S1003 Brent Reinke, Director of the State of Idaho Department of Juvenile Corrections, presented this legislation, relating to support of juveniles, to help clarify the way that Juvenile Corrections will be collecting the reimbursements for the care and treatment of the juvenile offenders in the Idaho Department of Juvenile Correction custody. Whenever a juvenile is placed by the court in custody other than that of the juvenile's parents, or legal guardian designated to care for them, the court may order that the parent pay a reasonable sum, as directed by the court to cover in whole or in part , the support and treatment of the juvenile. If the parent refuses, then the court may proceed against them for contempt, and in the form of a civil judgment.

One of the challenges encountered is that the needs of the 44 counties were not taken into consideration. He suggested adding a new section to the legislation which could be done by amendment.

In the Juvenile Corrections Act, it is the very clearly stated that it is the intent language of the act is to hold the parents accountable where appropriate for all or part of the cost for the incarceration or treatment of juveniles, and that is the reason for this legislation. This is a very expensive operation costing upwards of $50,000 to $60,000 per child in custody for a year. Since a Federal audit was held last year, the findings were that the Dept. of Health and Welfare could not utilize Federal funds if they were collecting child support for the Idaho Department of Juvenile Corrections. The department stopped working with H&W and established their own reimbursement program within our agency, called a parent reimbursement and this bill is the vehicle to be able to work with the 88 magistrates in the 44 counties to carry it out.

Senator Sorensen asked what the cost was for this, and what is charged a parent for a juvenile to be confined. Mr. Reinke responded that it is a sliding fee schedule and depends on the parent's income their dependents, and what is happening within that particular household. It could be from $10 to as much as $400 a month.

Senator Burkett asked how the legal process fees were handled. Mr. Reinke answered that was a separate proceeding. There are court costs, fines and fees that are handled by the court, the county portion is for a monthly probation or so much a day for detention. This legislation calls for a fee reimbursement for a juvenile when they make it into the state system. It can be a very costly endeavor for parents who find themselves in the system from the very beginning to the very end. The money collected ends up in the State General Fund. In the first 5 years of the agency they reached the point of a $1,200,000.00 collection and project this year collection will be about $500,000 as the Dept. doesn't have the capability to collect funds like they previously were able to.

Senator Sorensen asked if it says in the legislation that the money goes into the General Fund, and how the maximum amount was determined. Mr. Reinke responded that the average cost is much greater than the maximum collected, being $165 to $170 per juvenile a day. The goal is to keep the parents are involved in the treatment of that juvenile and be a willing participant. However, 45% of the kids in custody don't have a family. They come from a variety of backgrounds and there won't be reimbursement from them. Senator Sorensen asked what would keep the department from charging this amount to the family and forcing them into bankruptcy, but feel that the language is very loose. Mr. Reinke answered that is what they hope to outline by rule, as they have forced families into bankruptcy, have taken homes, and have a significant problem because of the other siblings in the home. This is a big concern, and they hope to manage those fees by rule that would be brought back in 2004. Senator Burkett asked about the guardian of a juvenile who has stepped in to help with the rearing of this child, would they be held accountable for this reimbursement, as stated in the first part of the bill. The answer was deferred to Nancy Bishop, attorney general legal counsel, who replied that under the statute now, a parent or guardian, whether it be grandparent or family member would be legally obligated to make reimbursement.

Senator Bunderson expressed concern about the consequences where a person who knew the extent of the law, for financial reasons would not move into being a guardian, as they could be held accountable to the cost of the dysfunction of the child whereas if they moved in to be guardian, it would be a wonderful thing for that child. He asked how that could be addressed. Mr. Reinke told the committee that was a challenge, but all those details are taken into account so they understand what is happening in the home in order to develop the fee schedule that the families can voluntarily agree to participate. That is the reason for the decrease in the revenue.

Senator Darrington commented that this program was highly successful until the Federal people made the decision that it couldn't be done through the child support and asked Mr. Reinke what are the options if the committee sends this legislation to the amending order. Nancy Bishop answered that she has been asked by the department to look in to ways of debt collection to supplant the child support system that can no longer be used, possibly to use a collection agency or a contract similar system. Mr. Reinke told the committee this needs to be amended in 2 areas. The first one, on request of the Idaho Assn of Counties, is to amend section A , section B and add a section C to cover the need of the 44 counties to be able to collect for county services. In the other document in Section 3, as requested by Dept. of Health and Welfare, lines 36, 37, 38 39 and up to decree on line 40 would be stricken to provide clarity to what they are trying to accomplish.

MOTION: Senator Darrington gave the committee the option to go to the 14th order as asked by Director Reinke, or draft a new RS and go through the whole process, or maybe not act on it at all. Senator Sorensen made a motion to hold the bill in committee to see the final bill returned. Second was by Senator Davis and the bill will be held in committee. Motion was carried by a voice vote.
Tom Frost representing the Idaho Supreme Court presented a series of bills that the Supreme Court has recommended in its annual report to the Governor the concern defect or omissions in the laws.
S1004 This bill amends Section 18-310 to restore a person's civil rights, including the right to possess a firearm, upon completion of a sentence for conviction of a felony, except in respect to certain crimes, one of which is "lewd conduct with a minor child under the age of sixteen." This crime is identified by statute number as "18-1508 (3), (4), (5) and (6), Idaho Code." There are no subsections in 18-1508 and this bill removes these subsection numbers.
MOTION: Senator Davis made a motion to send S1004 to the floor with a do pass. Second was by Senator Sorensen and the motion was carried by a voice vote.
S1005 This bill relates to the printing of the Idaho Supreme Court reports to remove outdated language requiring the printer to furnish 400 copies of each volume of the Idaho Reports and also furnish a $500 performance bond in respect to the printing contract.
MOTION: Senator Sorensen made a motion to send S1005 to the floor with a do pass. Second was by Senator Lodge and the motion carried by a voice vote. Senator Sweet will carry the bill on the Senator Floor.
S1006 This bill removes an 1864 provision that when a defendant is charged with a felony, the defendant must be taken before a magistrate who conducts a preliminary examination of the charge. The practice of taking testimony by a stenographer no longer exists and this bill eliminates that requirement.
MOTION: Senator Bunderson made a motion to send S1006 to the floor with a do pass. Second was by Senator Burkett and the motion carried by a voice vote. Senator Sweet will carry the bill on the Senator Floor.
S1007 This bill corrects a typographical error relating to the qualification of prospective jurors for jury duty. Senator Darrington reminded the committee of the time there was legislation to remove a comma.
MOTION: Senator Sorensen made a motion to send S1007 to the floor with a do pass. Second was by Senator Marley and the motion carried by a voice vote. Senator Sweet will carry the bill on the Senator Floor.
S1008 This bill relates to the setting of bail for a person after arrest to eliminate archaic references to "probate and justices'" courts which are no longer in existence and causes confusion.
MOTION: Senator Davis made a motion to send S1008 to the floor with a do pass. Second was by Senator Richardson and the motion carried by a voice vote. Senator Sweet will carry the bill on the Senator Floor.
Adjournment: The meeting was adjourned at 2:20 p.m.




DATE: Friday, January 24, 2003
TIME: 1:30 pm
PLACE: Room 437
MEMBERS PRESENT: Chairman Darrington, Vice Chairman Lodge, Senators Sorensen, Richardson, Bunderson, Davis, Sweet, Marley, Burkett
MINUTES: Senator Lodge made a motion to accept the minutes of January 22 as written. Second was by Senator Sweet and the motion carried by a voice vote.
RS12660 Kathy Holland Smith presented this legislation relating to court fees to correct a code reference to transfer 10% of fees directly to POST. This is a fix to make sure that these fees are given to POST, who are behind this legislation and really need it. This is an easier way than to raise fine amount and would have the same effect.
MOTION: Senator Sweet made a motion to send RS12660 to print. Second was by Senator Lodge and the motion carried by a voice vote.
RS12623 Robert Aldridge , from the Taxation, Probate and Trust committee of the Idaho State Bar, presented this legislation. This one is a technical correction and part of an ongoing review and revision of this complex area to reflect modern estate planning methods while preserving basic protections for family of the deceased.
MOTION: Senator Sorensen made a motion to send RS12623 to print. Second was by Senator Burkett and the motion carried by a voice vote.
RS12625 This legislation answers questions that arise in probate court, but when there is no probate proceeding. This will let the surviving spouse appear by electronic appearance or submit an affidavit. This bill eliminates confusion and will lower the costs of summary administration.
MOTION: Senator Davis made a motion to send RS12625 to print. Second was by Senator Sorensen and the motion carried by a voice vote.
RS12630 This legislation adopts updates to code for non-probate transfers, from the old code in 1972 and to cure problems that have been created. The only change is when Idaho changed the 1 year statute to 2 years, that is still retained.
MOTION: Senator Lodge made a motion to send RS12630 to print. Second was by Senator Sorensen and the motion carried by a voice vote.
RS12670 When the Idaho Nonprofit Corporation Act was amended in 1997, prior sections were repealed, and replaced by parallel sections. This bill inserts the proper references tot he existing sections in the Act, so that they can be found without having to consult the References Table each time.
MOTION: Senator Sorensen made a motion to send RS12670 to print. Second was by Senator Lodge and the motion carried by a voice vote.
RS12671 This provides for certain types of exempt property to pass to a surviving spouse, or children if there is no surviving spouse. However, a question arose as to whether the will could provide that such exempt property allowance not be given to children, or only to some of the children, especially in cases where the decedent was estranged from one or more children. This clarifies the will and carries out the general philosophy that terms and conditions in a will can override many of the provisions of the act.
MOTION: Senator Lodge made a motion to send RS12671 to print. Second was by Senator Bunderson and the motion carried by a voice vote.
RS12672 This legislation is coordination with AARP , which concerns mostly grandparents raising grandchildren, and is to provide for a simple method to delegate the temporary care, custody and control of a minor child to another person. This bill addresses that when the power is for a minor and is granted to a family, that the power will last for three years instead of six months. This was brought about during the Deseret Storm conflict when the time limit for temporary custody was expired, but the parents were still out of the country and could not renew the custody agreement.

Senator Davis asked about the language overriding the rights of revocation. Mr. Aldridge said their committee worked with this and after three versions, make sure the revocation rights were secure. Senator Darrington wondered if there would be any controversy with this bill, and Mr. Aldridge responded that he was unaware of any opposition.

MOTION: Senator Burkett made a motion to send RS12672 to print. Second was by Senator Lodge and the motion carried by a voice vote.
ADJOURNMENT: Meeting was adjourned at 1:50 p.m.




DATE: January 27, 2003
TIME: 1:30 pm
PLACE: Room 437
MEMBERS PRESENT: Chairman Darrington, Vice Chairman Lodge, Senators Sorensen, Richardson, Bunderson, Davis, Sweet, Marley, Burkett
MINUTES: Senator Lodge made a motion to approve the minutes of January 24 as written. Second was by Senator Marley and the motion carried by a voice vote.
S1002 Kathy Baird, Sex Offender Classification Board presented this bill whose primary purpose is to implement a formal application and approval system to ensure that providers who perform psychosexual evaluations for the courts prior to sentencing, meet the additional sex offender-specific training and experience qualifications. Those approved will be identified as certified evaluators, and they will be identified on a statewide roster to aid the courts in selecting providers to conduct these evaluations.

Senator Darrington asked how many will apply and pay the fee and was told that about 25 apply for evaluator certification each year. The language says this is not to exceed $150 for an annual fee, with the intent to charge $75 for initial and $50 for yearly renewals. The fee schedule will be set by administrative rule, with a $150 cap.

Senator Darrington asked when these evaluations are done, and are they part of the pre-sentencing investigation. Ms. Baird said the evaluations are conducted prior to sentencing and used by the judges to help determine a sentence.

The person's doing the evaluation must be a "certified evaluator", which means a psychiatrist licensed by this state or a master's or doctoral level mental health professional licensed by the state, or one who has by education, experience and training, expertise in the assessment and treatment of sexual offenders. Such a person shall meet the qualifications and shall be approved by the board to perform psychosexual evaluations as described in Idaho Code. Senator Bunderson asked why the words, "master or doctoral level" and not language for a minimum requirement. Ms. Baird said that language was in there from the beginning to include a Medical Doctor who would be a psychiatrist, or a master's level psychologist.

Senator Burkett asked a psychiatrist could qualify from experience and other training , or if they would need the Master/Doctorate requirement from their education. Ms. Baird answered that a psychiatrist would have to have same level of expertise and continuing education credit and ongoing experience. At the present time, the evaluators are at a master's level, with some at a Dr. level, as psychologists. Education level is to prevent pastoral counselors, who are licensed counselors, but not the masters or doctorates that are identified for sex offenders evaluations.

Section 18-8314 will be amended to establish the approval system and provide for the system to be administered by the Sex Offender Classification Board. It will authorize certification processing fees to be collected by the Board, and will grant authority for the Board to promulgate administrative rules to carry out their procedures.

Section 18-8317 will also be amended to include authority for mental health staff of the Department of Correction to perform psychosexual evaluations on offenders who are being reviewed by the Sex Offender Classification Board for violent sexual predator designation. Senator Lodge wondered about the cost per evaluation, and was told that the cost could vary across the state, from $700 to $1800, for evaluation, meeting, and testing. Some of this cost is for a polygrapher doing the polygraph test, so this can be fairly expensive. Senator Davis checked the Idaho Code, and said Title 54, Chapter 23 deals with psychologists, Chapter 32 deals with licensed social workers, and Chapter 34 with professional counselors and asked if this will liberate the judiciary. Ms. Baird, told the committee that bill is presented with the judiciary's blessing. The courts will gladly relinquish their current statutory responsibility for determining whether or not sex offender evaluators meet the designated qualifications. Courts rely in part on psychosexual evaluations for sentencing considerations. It is in the best interest of the community and the offenders themselves for these evaluations to be conducted by professionals who understand the complex nature of sexual offenders and their offensive behaviors.

MOTION: Senator Lodge made a motion to send S1002 to the floor with a do pass. Second was by Senator Sweet. Senator Davis made a substitute motion to send S1002 to the 14th order for amendment. Second was by Senator Bunderson and the motion carried by a voice vote. Senator Darrington will sponsor S1002 on the Senate floor.
RULES REVIEW - Commission of Pardons and Parole
IDAPA 50 Olivia Craven, Executive Director, presented the rules which are the final ones here for approval. One section was changed and a definition of Case Worker was added. Section 100.03 lets public know of a hearing for inmate releases. In this release procedure, as things are computerized now, it is not necessary for the inmate to submit written parole plans, but can be verbally present the plans to a case worker or hearing officer. The commission may waive investigations of parolee plans in special cases, such as if someone is in a coma, or similar situation. Senator Davis questioned the electronic record, and was told that this is required by the department. They used to require inmates to come with a parole plan to a hearing, and now they can give it to a case worker. Ms. Craven said there could be an amendment to require a parole plan, but the case worker asks the questions of the inmate: " Where are you going, and what are you doing to do?" The case worker is responsible to put those responses in the computer, so the information is on record and the inmate doesn't have to come before the Commission.

Section 09a. was changed that only the executive director or the commission will decide if the parolee will be released to continue parole, following arrest on a commission warrant. The Commission is not required to keep an updated file of each inmate under the sentence of death. Senator Burkett asked why they don't keep a file on death cases, and was told that simply means they don't have to keep a second file in their office, as they can get a file within an hour.

Concerning pardons: if the applicant for pardon is residing in a jurisdiction, such as Wyoming, which refuses to conduct an investigation of the case for Idaho, the applicant may be required to come to Idaho for an interview with a parole officer or hearing officer. A normal investigation will then be completed, as pardons are not handed out without an investigation.

MOTION: Senator Davis made a motion to accept the rules of the Commission of Pardons and Parole. Second was by Senator Lodge and the motion carried by a voice vote.
REPORT ON COMMISSION OF PARDONS AND PAROLE
Olivia Craven gave a report on the Commission, which is a 5-member part time board, and serves only during hearings. They are appointed by the Governor to serve 3-year terms. Ms. Craven is the Executive Director, and is responsible for the day-to-day operation of the Commission, preparing them for hearings, and carrying out their decision.

The hearings are conducted monthly, and last year, 1727 parole consideration hearings, and 400 parole revocation hearings were held . Most sessions are in Boise, but one session per quarter, the Commission travels to Pocatello for those institutions in the eastern part of the state and hearings in Orofino are conducted by video conference. There is no staff to be with the victims at the Orofino site, and the families have complained about the procedure, so the Commission will be working on how to make that better for them. There have been no complaints from the inmates or their families. The videoconferencing was started when the first budget hold back was ordered, and they found they are able to finish hearings faster with the video.

Senator Darrington expressed concern for the videoconferencing "as there is no substitute for the chemistry you feel when face to face with a person. There is a huge advantage to feel that chemistry."

The first hearing for an inmate is scheduled when they reach the RDU (reception-diagnostic unit) and 27% of those committed are eligible for parole when they reach the RDU because of time already spent. Currently, there is a parole grant rate of 68%. Last year 96 inmates refused parole and 10 refused programs. The reason for this is that they don't' want to comply with rules of parole and don't want to answer to a prole officer. Ms. Craven told the committee that "It is a lot easier to work than confront one's self with making life changes, they just are not ready to quit crime." The Idaho Department of Correction instituted a new policy that if an inmate refuses parole, they will lose their job. The Commission remains concerned about seeing inmates who refuse to participate in the programs or refuse parole. Keeping an inmate in prison for one year would pay the salary of a teacher. Additionally, studies show that most offender success comes from the rehabilitation programs, than from the work. She also commented that "If a violent sexual predator is not safe, they don't go on parole. If they have a long record, they will do it again." The department is working on forced treatment as that works better than voluntary. There is a concern about keeping parolees on parole who owe a lot of restitution, and they are also working on that.

Senator Bunderson commented that about 4 years ago, there was concern that there aren't options to give people. Ms. Craven said that there have been a lot of changes since Tom Beauclair became director, and that there are good programs in prison now.

Ms. Craven introduced her assistant, Tracy Shearer who came from the private business sector last March.

Adjournment: Meeting was adjourned at 2:45 p.m.




DATE:

Wednesday, January 29, 2003

TIME:

1:30pm

PLACE:

Room. 437

MEMBERS

PRESENT:

Chairman Darrington, Vice Chairman Lodge, Senators Sorensen, Richardson, Bunderson, Davis, Sweet, Marley, Burkett

MINUTES:

Senator Sweet made a motion to approve the minutes of January 27. Second was by Senator Marley and the motion carried by a voice vote.

Introduction:

Senator Darrington introduced Joe and Jamie Larsen, of Burley who are the parents of our page, Jared Larsen, who is assigned to the Judiciary and Rules Committee. They are visiting today as Jared was the page who led the Pledge of Allegiance on the Senate floor.

 

GUBERNATORIAL APPOINTMENTS

Commission on Pardons and Parole

 

Robin Sandy of Boise, Idaho reappointed to the Commission on Pardons and Parole for a term commencing January 1, 2003 and expiring January 1, 2006.

 

E.E. “Bud” Brinegar of Meridian, Idaho reappointed to the

Commission on Pardons and Parole for a term commencing January 1, 2003 and expiring January 1, 2006.

 

Robin Sandy told the committee that this is a 3 year appointment, and she has served for several years before. She had no idea of the work that the pardons and parole board does. She is greatly disturbed by the amount of money spent in the Corrections area to keep citizen’s safe, The largest problem is with meth in cities and rural areas. One thing she has learned to respect is that every inmate is someone’s brother, son, uncle, and they are wishing the best for their loved one even though they are seeing the worst in them. Senator Darrington asked if there are crimes precipitated by the use of drugs. Ms. Sandy told the committee that there is an increase in crime to get drug money. They have also seen girls get pregnant, coming back and back again pregnant, because they are involved in drugs. They are trying to establish parameters for this type of behavior.

 

Senator Bunderson asked if these mothers are doing drugs while pregnant, and what is the state’s responsibility for the child. Ms. Sandy replied that a lot of girls who deliver babies will adopt them out, but some babies go to family members or foster care. Senator Bunderson then asked about repeat offenders, and if a high degree of women are ingesting alcohol which has an enormous repercussion on society. Ms. Sandy said that parenting classes are taught and these women are taught the consequences. It costs a lot of money for those kids to get them through the system. Senator Sorensen asked about recidivism, and was told that they are seeing great results from the program. Those who participate learn to present themselves much better when they go through the program and apply for a job on the outside, She can’t say enough good things about the program, and wished they had three times more beds.

 

Senator Richardson said he receives input from his constituents concerning the amount of people in prison, about 300-600, who have finished their fixed time and should be out of there, but are waiting for parole. The state could save a lot of money if these could get paroled and get on with their lives. He asked ‘What is the ability to get those who are waiting on parole to get paroled. Ms. Sandy is asked that question all the time, and she was happy to answer it, She said there is an alarming number of inmates coming up who refuse parole, as they don’t want to assume life on the outside. Some have a 2-5 year sentence, and they come in at two years, and say, “I have a wife and 5 kids on the outside, and they whine and cry and I really don’t want to go home, because I don’t want that stress. This is hard for a logical person to understand. she commented, but , “some even say that they don’t want to go to classes, that they are alcoholics, and they won’t change. There are others who say ‘it isn’t so bad in here’ and perhaps some do have it better in prison that on the outside.” She told the committee that “prison is referred to as ‘3 hots and a cot, with 3 meals a day and a place to sleep. It is warm, they have TV, a work-out room, a library and they may have it better in jail.”

 

Senator Burkett asked if there is a long-term drug treatment that they can do while on parole, possibly, with the first year in house. Ms. Sandy would love to get more in that program on the outside, but doesn’t know of any facilities that are in house. There was a recent meeting to see if outside agencies could help develop those programs.

 

Bud Brinegar, has served for 3 1/2 years on the Commission and also had no idea what it entailed, even though he was the clerk of the city of Burley for 25 years. He feels strongly, as does Senator Darrington, that when a judge gives a sentence of 2 to 5 years, those sentenced shouldn’t expect parole at 2 years. He clarified, “The sentence is 5 years, and if they behave, and live by the rules, then possibly in two years they could come before the Commission for consideration of parole.” He said that some inmates refuse to take parole and they just can’t be talked into it, as was the case with 96 inmates, The Commission feels strongly about the inmates losing their jobs and privileges if they don’t do the programs. He told the committee that “My job is to protect the public. How can we let them out when they haven’t been through a program and are ready?” Senator Bunderson suggested that maybe there should be motivation to make the living conditions less comfortable, so the inmates would want to leave. Mr. Brinegar agreed, saying that “by maybe removing the television and putting them in a 6 foot by 8 foot cell would make them want to rehabilitate faster.”

 

Senator Darrington thanked Ms. Sandy and Mr. Brinegar for their presentations and the good insight that they gave the committee into the work they do at the Board of Pardons and Parole. The confirmations will be voted upon at the next meeting.

S1019

Mike Oths, Idaho State Bar, presented this legislation as his last time to appear in front of a legislative committee, as he will take the office of a magistrate judge next Monday, Feb 3. This bill makes two changes concerning what is now known as the Idaho State Bar’s “Client Security Fund.” The fund is a trust fund, collected from Idaho State Bar members on an annual basis, for the purpose of reimbursing claimants for losses caused by the dishonest conduct of lawyers. Idaho Code currently permits the assessment of lawyers of up to $10 per year for the fund. This bill would increase that amount to $20, and also change the name of the fund to the “Clients̓ Assistance Fund.” There is no fiscal impact to the State as this is a self-contained trust fund that uses no general fund money. Most of the fund is used to reimburse clients in the event that a lawyer steals money from a client, or more simply, fails to return funds. That person can ask for their money back, but the most a claimant can get paid is $15,000. This helps repair some of the ill-will that comes along with misconduct of a small percentage of lawyers of the bar. The fund has been increased, so the maximum amount that can be accumulated total in the fund, is half a million dollars. Mr. Oths told the committee “We access lawyers $10 each and there are 4200 in Idaho, so we come up with about $40,000 a year to go into the fund.” Some years they may only pay a couple of claims, but it runs in cycles. Several years ago, they received authority to charge $20 and it was changed in the bar commission rules that the Supreme Court puts into effect, but for some oversight it wasn’t changed by the Legislature. Now, they are at the point where they need to access lawyers $20 as they have had a run on the fund, and although solvent, they need to generate more money. This is not really a dues increase, but raising the maximum amount they are charging.

 

Senator Darrington asked him to address the question of the out of state members of the bar who wouldn’t be practicing in Idaho. Mr. Oths. said they had received an inquiry, from a member of the bar who is on affiliate status, which is a member of the Idaho State Bar, but not immediately active or practicing in Idaho. This attorney felt the affiliates should be exempted from paying into this fund where they were not in a position to steal anyone’s money in Idaho. Mr. Oths responded that there has been this debate before, with members of the bar, and his response is that “the $20 is not an insurance fund, and we aren’t paying the amount in as a premium, but as part of our obligation to the public with each of us pitching in the cost of a lunch or two to create a fund as part of our duty as members of the bar, and that duty extends both to current active members and affiliate members, and that is part of saying you are a member of the Idaho Bar and your name is in the desk book, so you are holding yourself out to the public as a person who is able to practice law.”

 

Senator Davis asked if on Monday when Mr. Oths puts on his black robes, as assumes the role of judge, would he also pay the $20 as well. Amid much laughter, Mr. Oths responded that if Diane Winnick sent him an invoice, he wouldn’t question it and would pay it, as he personally wouldn’t object, but that members of the judiciary don’t pay it for reasons he did not know.

 

Senator Sorensen commented that she feels much like the out-of-state attorneys, and wondered why very honest attorneys would want to pay for the dishonest attorneys and how much is needed in that fund. Mr. Oths said if they relied on dishonest attorneys to pay, then obviously they wouldn’t have a fund. They are relying on the good people, as for many other things in life, to cover the mistakes of those who aren’t good and honest and in that regard, most people in their lives would never consider stealing money, but are being asked as part of their obligation to the profession to do that. Senator Sorensen asked that if dishonest attorneys are identified, why are they not fined the amount of dollars which is needed to go into the fund. She continued, ‘it makes more sense that they should be the ones to take care of this situation.” Mr. Oths replied that when someone is paid from the Client Security Fund, they do get a release and assignment of claims that the client would have against that person. Unfortunately, the claimants are frequently judgement proof or not able to pay, but this is always held over their heads before the attorney would be reinstated to practice. Senator Burkett asked if they seek restitution orders against these individuals and was told they do, but it is an empty promise for getting restitution.

Motion:

Senator Burkett made a motion to send S1019 to the floor with a do pass. Second was by Senator Sorensen and the motion carried by a voice vote. Senator Burkett will carry this bill on the Senate floor.

S1028

Mike Becar deferred to Kathy Holland Smith from the budget office, who presented this legislation to make a technical correction for a cross-reference as to where funds are deposited; and to allow for ten percent of the civil court fees to be redirected from the state’s General fund to the Peace Officer Standards and Training (POST) fund. This was unintentionally left out of legislation that passed during the 2001 Legislative Session dealing with revenues to support the POST academy. This money goes into the general fund and when the bill was written it included criminal, but not civil penalty funds. POST is designated to receive 10% of every fine, or roughly about $6.00, from infractions ( See attached Fine Distribution Illustration list ) out of the general fund for their operations. Where the officer issues this citation determines where the dollar amount is spent, and this helps cities, counties, and the state.

 

The original state fiscal impact of enhancing revenues to the POST Academy in the 2001 session was $550,000 annually. The actual impact was $157,100 in fiscal year 2001 - resulting in a shortage of $328,900. This bill will redirect the funds to make up that difference each year, There is a cap to make sure that the POST fee is not allowed to maintain a balance of more than $1 million dollars at the end of the fiscal year, so they cannot build up their fund at the expense of the General Fund. Their appropriations are at $1.9 million a year, and will probably go over $2 million this year. The revenues that are being collected are not matching that appropriation, and the fund balance, without any changes to code, are going down significantly. This year the appropriation will be about $200,000.00, which is not sufficient to go into this fiscal year.

 

Senator Darrington stressed that this bill is a result of an oversight last year in drafting which did not include both civil and criminal. This legislation came as a result of Kathy, himself and Rep. Gould, who were searching for a way to avoid coming before the Legislature each year for POST fees. With the increase in population, and the resulting increase in tickets, this solution would grant the increases to POST as they go along. Ms. Smith said the intention was a more modest increase in the fine amount that the agency could live with, and that fee would grow by increase each year.

 

Senator Burkett said he couldn’t see the logic of the intent to apply this to civil fees, for example a disagreement between a landlord and a tenant, but POST should be supported by fees from criminal proceedings. Ms. Smith answered that the logic was to determine what portion of the amount that the courts deposit in the general fund would be an appropriate funding source for POST not whether it was tied to subject matter, but on an ongoing basis would support an entity. Two years ago this was passed, and then they were searching why the mechanism wasn’t working as they hoped, but it took some time to understand that the money wasn’t all being collected due to this omission.

 

Mike Becar, Director of POST, clarified the question of civil clients, in that POST trains all the sheriffs, and all civil people as well as law enforcement, so the civil fines have more of a relationship to POST than it appears.

MOTION:

Senator Davis made a motion to send S1028 to the floor with a do pass. Second was by Senator Lodge and the motion carried by a voice vote. Senator Darrington will carry this bill on the Senate floor.

 

Bob Marsh, Public Policy for Boise State University gave a very informative report to the committee, and passed out an excellent source of reference for the Prosecution of Child Sexual Abuse. A copy is in the Judiciary and Rules Committee Office. (AIso see attached page #2)

 

This is the fourteenth annual report to the Idaho Legislature concerning the prosecution of child sexual abuse cases in Idaho. While the report focuses upon prosecutions for the year ending June 30, 2002, it also includes compiled date for the years 1993 through 2002, submitted by county clerks and county prosecutors. At the present time, there are 4.03% per 100,000 people, or about 434 cases for FY 2001. The victim gender is predominately female, and the groups remain consistent for teens and younger children. Adult abusers are about 75% of the cases and the other 25% is unknown. Most children under 11 years of age are being abused by acquaintances or relatives, very few strangers, The focus should be to teach parents what is a child sex offense so they can help their children to be aware and know what to do. He mentioned that consensual sex between two teen-agers under age 15 if reported would be a felony sex abuse charge. He has been to schools to educate kids so they don’t end up on the sex offender registry. Mr. Marsh also told the committee that parents of teenagers are shocked when they learn about the statistics that make up child sex abuse cases.

Adjournment:

Meeting adjourned at 2:42 p.m.





DATE: Friday, January 31, 2003
TIME: 1:30 pm
PLACE: Room 437
MEMBERS PRESENT: Chairman Darrington, Vice Chairman Lodge, Senators Sorensen, Richardson, Bunderson, Davis, Sweet, Marley, Burkett
MINUTES: Senator Richardson made a motion to approve the minutes of January 29th as written. Second was by Senator Sorensen, and the motion carried by a voice vote.
Committee Vote:

Gubernatorial

Appointments

Motion was made by Senator Lodge to recommend to the full Senate, the Gubernatorial appointment of Robin Sandy to the Commission of Pardons and Parole. Second was by Senator Sorensen and the motion carried by a voice vote. Motion was made by Senator Bunderson to recommend to the full Senate the Gubernatorial appointment of E.E. "Bud" Brinegar to the Commission of Pardons and Parole. Second was by Senator Sweet and the motion carried by a voice vote.
GUBERNATORIAL APPOINTMENT:

Pamela J. Huntsman of Twin Falls, Idaho, reappointed to the Sexual Offender Classification Board for a term commencing January 1, 2003 and expiring January 1, 2009

Kathy Baird, Executive Director of the Sexual Offender Classification Board introduced Pamela Huntsman to the committee and also the members of the Board, who are Thomas Hearn, Dr. Gary Horton,and Moscelene Sunderland Ms. Huntsman is from Twin Falls, and has a BA degree in Sociology. She has been with the Department of Correction as a senior parole officer, since 1997 and a member of the Board since 1998. She feels the Board has brought a lot to the state through introducing legislation which was passed. Probation and Parole plays an integral part in protecting society and it is their job to enforce the courts order and whatever directives the parole commission issues for those individuals on parole. This board assists when people are coming up for parole that they be designated VSP (Violent Sexual Predator) if they need to be. Only a few have come through with that designation, and have to register every quarter instead of every year. Pardons and Parole assists in making sure that is done, verifying that they have complied with those requirements, and hopefully keeping them from re-offending. Senator Burkett asked what she was doing as a member of the Board versus what she is doing as a parole officer, and how many classifications are there other than VSP. As a Board member, she doesn't do any type of enforcing, but does review and vote with the rest of the Board to determine if a person is a VSP. At that point, the local sheriff's department is notified that this individual needs to register quarterly as opposed to annually. Senator Sorensen asked if there is difficulty determining the classification applied to sort out a VSP from others, and what is the criteria. She answered that the clinician in the institution does an evaluation on a particular individual and if they feel this person needs to be reviewed by the Board, then they are sent to the Board. Then the clinician does a psychosexual evaluation which involves testing of personality, mental health, sexual history involvement and psychopathy then that report is prepared and sent to the Board. The Board also does a complete file review of the individual, old PSI's, police reports, how they have done in the institution and victim's statements. If the victim wishes to have more statements at this time they can do so by telephone call, by writing, or by personal appearance at the Board. Once all the information is gathered, the Board reads it and then votes to determine if this person needs to be classified. She said there are two classifications, Violent Sexual Predator or Not, as Idaho doesn't have a level system as some other states do. Senator Sorensen asked how they make sure these offenders register, as other states are having trouble with this. The Idaho State Police maintain the registry, which is set up by county, and they register where they live. If they fail to register, the county sheriff will notify the Idaho State Police and then it is up to the county and the State police to determine whether a new felony has been committed.

Senator Richardson asked if it was more difficult to rehabilitate a Violent Sexual Predator. Ms. Huntsman answered that "tough question" by telling him that sex offending is a cognitive based behavior; it starts in your head, you make choices, and therefore treatment requires a completely cognitive restructuring. For a 40 year old, the treatment provider has 40 years of programming to restructure, but it can be done, and there are success stories, with people going into the community and living full lives. It all depends on whether the individual wants to or not, as people can change their behavior. As to prevention, there is Education, Education, Education. Also people can learn to protect themselves, and when the Board has worked with someone who has offended, they hope that they never do it again. If someone feels they are innocent, it is called the "denial process" and each and every person has to go through their own denial process, no matter how long it takes.

S1016 Rex Blackburn, Uniform State Law Commissioner presented this bill to provide the adoption of the Uniform Child Witness Testimony by the Alternative Methods Act. This act circulated through members of the Idaho State Bar, the Courts, Judiciary, the Trial Court Judges throughout the state, who all gave input and he addressed the concerns expressed, but there was not really opposition to this legislation. Senator Darrington had a concern that the age was being moved from 16 to age 13, but there was total support in the Attorney General's Office and the Prosecutors Office for this change. Mr. Blackburn said that this act sets standards and procedures for a child who has to testify in either a civil or criminal proceeding to determine if they will be permitted to testify by a means other than face to face confrontation with others in a courtroom. The purpose behind the act is to balance the rights of a party to confront and cross-examine a witness and yet balance the interests of children with their sensitivities. Idaho made an effort to address this in Code 19-3024a, which addressed only criminal proceedings. This bill repeals that section and covers both civil and criminal proceedings. This act is needed to provide uniformity, and the advantage if adopted in surrounding states, is that we get the benefit of the judicial interpretations of the same acts in those states. This was read in two separate annual meetings of the National conference and passed last year.

The first of the four concerns was if the court could, on its own motion, start the process to permit a child witness to use an alternative means of testimony. The statute may not be very clear, but the official comments to the statute do expressly provide that the court can start this process, and is also the intent of this act. The second concern was the wording "another person of sufficient standing" to bring the motion. In an effort to use language that would cover all the labels that are attached to the equivalent of a guardian in the various states, this wording was adopted. The third area asked if a written order was required, and it is not the intention by this statute to require a written order, as a tape recording would be sufficient to review the findings upon appeal. Lastly, there was a question about the repeal of certain statues. This act repeals 19-3024a, which deals with alternative testimony by children in criminal proceedings, and this act replaces the former one. Section 19-809a dealing with preliminary hearings, is similar but it is not the intention to repeal that statute. Section 19-3024 should have been changed in the beginning to include civil testimony.

Senator Darrington asked Patti Tobias, from the Supreme Court if Mr. Blackburn had addressed all the issues, and she confirmed that he had.

MOTION: Senator Davis made a motion to send S1016 to the floor with a do pass. Second was by Senator Lodge and the motion carried by a voice vote. Senator Davis will carry this bill on the Senate floor
Rules Review: Idaho Division of Veterans Services
Docket

21-0101-0201

Richard Jones, administrator of the Division of Veterans Services presented the pending rules. This rule addresses the current admission requirement that a veteran be eligible for, apply for, or be in receipt of a VA disability pension as a prerequisite for admission to a State Veterans Home. Peacetime veterans are now eligible for admission but don't qualify for VA disability pensions, so this requirement will only apply to wartime veterans. Since the Veterans Homes became Medicaid-certified in 2001, nursing care residents now pay their maintenance charges in advance and are not required to pay a security deposit.
MOTION: Senator Burkett made a motion to accept Docket 21-0101-0201. Second was by Senator Darrington and the motion carried by a voice vote.
Docket

21-0102-0201

This rule would insure that Emergency Grant funds are available to veterans who are truly in need, and that veterans be required to list Idaho as their home of record in order to be eligible for an Emergency Grant. This would eliminate abuse by those who travel from state to state collecting available veteran benefits. Surviving spouses also qualify by benefit of their eligible veteran spouse. Also, there is a change that only one county service officer training session per year be held, rather than 2. Also individuals who request reimbursement for travel or training must be official county service officers.
MOTION: Senator Sweet made a motion to accept Docket 21-0102-0201. Second was by Senator Darrington and the motion carried by a voice vote.
Docket

21-0103-0201

When State Veterans Homes were initially certified for Medicaid, it was determined that the maximum monthly nursing care charge would be uniform in all three homes. This rule change strikes that requirement and makes the charges more accurately reflect the cost of care in each home.
MOTION: Senator Burkett made a motion to accept Docket 21-0103-0201. Second was by Senator Sweet and the motion carried by a voice vote.
Docket

21-0104-0201

This is an entirely new chapter establishing the rules for the operation and maintenance of the Idaho State Veterans Cemetery. Groundbreaking ceremonies for the Cemetery were held on October 31, 2002. Construction started in November 2002 and will continue through 2003 and 2004. It is scheduled to open during the summer of 2004. Mr. Jones told the committee that there would be no cost for a veteran for a cremation crypt, but the funeral home would have to be paid. Senator Burkett asked who qualified, and was told that any individual who served on active duty and received an honorable discharge would be eligible. The only exception would be if that veteran was convicted of a capital crime, such as Timothy McVeigh, and would not be eligible to be buried in the cemetery.
MOTION: Senator Sweet made a motion to accept Docket 21-0104-0201. Second was by Senator Darrington and the motion carried by a voice vote.
Docket

21-0105-0201

This is also a new chapter establishing rules for the operation of the pilot Transportation Payment Program for wheelchair-confined Veterans. The 2002 Legislature appropriated $30,000 for this program, and this chapter of rules sets forth who may use the program. There has been very positive input from those who have used it, as many injuries to these wheelchair-confined veterans occur when their spouse tries to help them into a car. Those in a nursing home are not eligible for this program. Twenty-eight of the forty-four counties spent under $1000 in six months for this carrier service.
MOTION: Senator Burkett made a motion to accept Docket 21-0105-0201. Second was by Senator Marley and the motion carried by a voice vote.
This concludes the rules review for the committee for this legislative session. There will be no committee meeting on Monday, February 3.
Adjournment: Meeting was adjourned at 2:28 p.m.




DATE: February 5, 2003
TIME: 1:30 pm
PLACE: Room 437
MEMBERS PRESENT: Chairman Darrington, Vice Chairman Lodge, Senators Richardson, Bunderson, Davis, Sweet, Marley, Burkett
MEMBERS

EXCUSED:

Senator Sorensen
MINUTES: Senator Richardson made a motion to accept the minutes of January 31 as written. Second was by Senator Lodge and the motion carried by a voice vote.
Committee Vote: Gubernatorial Appointment

Pamela J. Huntsman of Twin Falls, Idaho, reappointed to the Sexual Offender Classification Board for a term commencing January 1, 2003 and expiring January 1, 2009

Motion: Senator Sweet made the motion to recommend to the full Senate the re-appointment of Pamela Huntsman. Second was by Senator Richardson and the motion carried by a voice vote.
Bob Aldridge, who has worked with the Probate and Trust Section of the Idaho State Bar presented a series of bills to the committee which are part of an ongoing review and revision of the complex area to reflect modern estate planning methods while preserving basic protections for family of the deceased.
S 1029 This bill passed originally in 1987, provides for limitations on the civil liability of officers, directors, and volunteers who serve without compensation for a nonprofit corporation or organization. Part of the Section cross references two Idaho Code Sections in the old Idaho Nonprofit Corporations Act. However, that Act was repealed in 1993 and a new Idaho Nonprofit Corporation Act adopted. The cross reference sections are therefore now incorrect. The remaining equivalent section in the new Act which requires a cross reference is Section 30-3-82 (Loans to or guarantees for directors and officers). The actions covered in the old cross-referenced sections are otherwise covered by sections of the new Act; for example, Section 30-3-85 covers standards of conduct for officers of nonprofit corporations and the consequences for violation of such standards. Therefore, that section does not need to be cross-referenced and the bill simply corrects the old cross references to the proper new cross reference.
MOTION: Senator Lodge made a motion to send S1029 to the floor with a do pass. Second was by Senator Sweet and the motion carried by a voice vote. Senator Lodge will carry this bill on the Senate floor.
S 1030 The alternative to probate is called summary administration, which is a convenient way of passing property from a deceased spouse to a surviving spouse without going through a full probate proceeding. Because there is no probate, all debts of the deceased's estate are assumed by the surviving spouse and there is no administration of the estate. Because this is not really a probate proceeding, the 3-year period limitation on probate proceedings does not apply. This bill eliminates the confusion of whether the spouse must appear at a hearing, or can submit the affidavit by telephonic appearance or electronic transmission, which lowers the costs of summary administration.
MOTION: Senator Lodge made a motion to send S1030 to the floor with a do pass. Second was by Senator Sweet and the motion carried by a voice vote.

Senator Richardson will carry this bill on the Senate floor.

S 1031 This bill is an update for the Uniform Law Commissioners on probate transfers and unlike the existing law, provides a clear statement of the definition of a "nonprobate transfer"and what liability the transferee has to the estate of the deceased. The language is clear and direct, and gives clear guidance which allows the deceased to provide in will for their preferred order of reimbursement. One important point is that the bill does not extend or change whether a debt or right can be enforced against a non probate asset; the bill only clarifies the procedures and also that the decedent can specify the order in which non-probate assets are liable for the debts or rights granted in probate to surviving spouses or minor children. This bill will not interfere with the ability of persons to use non-probate transfers: it merely makes it clearer what will happen at death.
MOTION: Senator Sweet made a motion to send S 1031 to the floor with a do pass. Second was by Senator Davis and the motion carried by a voice vote. Senator Sweet will carry this bill on the Senate floor.
S 1032 This bill is to correct an improper cross reference. When the Idaho Non-profit Corporation Act was amended in 1997, prior sections were repealed and replaced by parallel sections as noted in the compiler's notes to the current Idaho code. However, the reference in Section 30-1209A was not corrected; therefore anyone looking at this section would have to know that the reference was incorrect and also know where to find the compiler's notes and parallel sections table.
MOTION: Senator Lodge made a motion to send S 1032 to the floor with a do pass. Second was by Senator Richardson and the motion carried by a voice vote. Senator Lodge will carry this bill on the Senate floor.
S 1033 The main purpose fo this bill is to exempt property allowance for children of a decedent when there is no surviving spouse. There is provision in existing law for certain types of exempt property to pass to a surviving spouse, or children if there is no surviving spouse. Two years in an overhaul of the exemptions in Idaho Code, a question arose as to whether the will of the decedent could provide that such exempt property allowance not be given to children, or only to some of the children. In one case, the child has been convicted of criminal assault on the parent and was incarcerated for that crime. Nonetheless, the child appeared to have had a right to claim the exemption under the existing statute. This amendment clarifies that the will of the parent can provide that a child cannot claim the exemption, and also carries out the general philosophy of the probate act that the decedent can override many of the default provisions of the act by express terms and conditions in a will. The amendment does not apply to surviving spouses; such allowances for a surviving spouse can be taken care of in prenuptial or postnuptial agreements.

Senator Davis asked what the Uniform Act provided, and was told that it didn't have any provision one way or another, that it was simply unclear. Fortunately, there are a number of similar situations in the Uniform Probate Act that are clear as to what effect the will of a decedent can have or trust. The Uniform Trust Act is being looked at on a three-year procedure for the ability of the person during lifetime through their trust documents to effect, and also look at the Uniform Probate Act. Since 1997 the Uniform Probate Act has come to a halt, the number of states that have adopted have remained constant and so they haven't been doing much in terms of probate sight, so we will have to do it on our own. The feeling of the committee is that the decedent should have the ability to control things within certain limits.

MOTION: Senator Richardson made a motion to send S1033 to the floor with a do pass. Second was by Senator Bunderson and the motion carried by a voice vote. Senator Burkett will carry this bill on the Senate floor.
S 1034 This bill was originally brought about in 1991,because of Desert Storm, to provide for a simple method to delegate the temporary care, custody, and control of a minor to another person. Since its enactment, the statute has expanded in its use, but without amendment. In addition to being used for school purposes, where a minor may attend school in a location away from his parents, the power can also be used when a family member, having problems with drugs for example, wishes to have grandparents or other family members care for a minor child of the family member. In many cases, the child is left with the grandparents or siblings and the parent disappears, sometimes for an extended time. The existing statute contains a six-month limitation for standard cases and twelve months for military personnel serving outside the United States. This often creates a problem when the parent disappears and the power cannot be renewed. This has been occurring quite often since that time.

This bill provides that when the grant of power is for a minor and is granted to a family member (grandparent, aunt or uncle, or brother or sister of the minor) the power lasts for three years instead of six months, if the power is otherwise silent as the expiration of the power. The power can set specific events or time periods for the termination of the power, which can be longer or shorter than the three year period, but must be specifically set forth in the power. The power does not have to be notarized or recorded to be valid, but it if is recorded, the revocation has to be recorded before it is effective, for the protection of third parties relying on the power. The effect of this change in law will be to avoid having minor children automatically forced into guardianship/ conservatorship proceedings to into the foster care system, when the parent of the minor cannot be located easily within a short time. By not requiring notarization, the power can be signed when a parent drops off a child to a relative at 2 a.m., and then disappears and the grandparents end up raising that child. If no time period is specified, this power continues for three years. There has been a lot of discussion with probate judges on these issues, and they felt comfortable with the three-year expiration date. This power may be revoked prior to this expiration date in writing delivered to the grandparent or sibling by the parent. This also does not have to be notarized to be valid.

Senator Davis was concerned with the revocation procedure, as he has tried cases dealing with the right to terminate guardianship. The court held the position that the right to terminate guardianship exclusively belonged to the parent, and the best interest of the child was irrelevant and the prior guardianship was terminated. He is concerned about the delivery requirement, and that this could be made impossible by the family, and perhaps the recording would be a direction that the state wouldn't want to go. Mr. Aldridge responded that there was extended discussion on those topics, and first, delivery need not be in person, it can be done by outside parties, by certified mail, or by any number of ways. That term was left as broad as it could be. Many times there will be confrontations, but they felt that oral notification created too many problems. They needed a clear format, so they knew when the power really was revoked. If the power was going to be recorded, and become public knowledge, then they wanted something public, so hospitals, schools, etc could see what the status was. This is also part of the complete re-examination of the powers of attorneys act as it stands in Idaho and looking at a substantial expansion of that especially for protection of the elderly. The notarization issue was discussed. The grandparents, and others who experience this, felt that these things don't happen between 8 and 5, they happen at night and on weekends. The intent with the passage of this bill is to create a good form that has as much information as possible, and have direction to see an attorney if possible, get notarized, if possible, but at least in an emergency situation, the form can be signed and get something in place. For those reasons the committee drafting this, felt notarization should not be a requirement.

Senator Davis asked if he understood this correctly, "nothing in the delegation of powers would be construed by the court, in your opinion, to be a delegation of any parental rights that are subject to modification other than the granting of the powers by the written instrument." He was told that was exactly right.

Senator Burkett asked about the powers of the parents granting these powers to another family member, that parent still has those powers themselves, but someone else has the parallel power in a situation, and if a parent shows up on the weekend, they woujldn't have to do anything, but those with the powers would have to give the child to the parent. Mr. Aldridge told the Senator that this was correct, and that there has been extended discussion, especially with grandparents that would give them the authority to turn the parent away, but that cannot be done. This is a limited situation and this will always be the case.

Senator Burkett also asked about use of the word "delegate" instead of "grant". Mr. Aldridge said that language was in the original Uniform Act and they didn't want to change it. They felt that the word delegate expressed the correct idea that gives someone the right to "operate in my stead, and do the things I can do but I'm not releasing, granting over to you, conveying the subject of those powers.

Senator Davis looked up the definition of the word "delegate" being "to entrust to another, to appoint as one's representative, to assign responsibility or authority." He felt that the this word is accurate to fit the needs and he felt "peaceful" with this legislation.

Meri Brennan for the Dept. of Health and Welfare, Children and Family Services said they supported what this bill is attempting to do, but they have concerns about the way the bill is written and requested a postponement, so they could partner with the sponsors in an effort to make the bill stronger and perhaps more effective. They felt that the bill has no legitimate way to document the authenticity of the transfer of powers. With no notarization to verify, it may put others in a precarious position in wondering fi the person presenting the child and a piece of paper is legitimate. As currently written, individuals will be forced to rely on a document that any one could create.

Jack Jones, representing AARP commented on grandparents raising grandchildren. The 2000 census data shows 6 million grandchildren living in households maintained by grandparents with or without the presence of parents. Data also states that 2.1 million children are being raised solely by grandparents or other relatives. He told the committee that this legislation reduces one of the important obstacles by extending the power of attorney to three years, and he urged the committee to "do pass on Senate Bill 1034".

Georgia Mackle, President of the Treasure Valley Grandparents as parents Support Group spoke in favor of this bill. The group has been in existence for about 14 years and they have found that the parents are not available for long periods of time to grand additional power of attorney. Many grandparents receive a power of attorney when the parent of their grandchildren goes to jail and the parent disappears as soon as they are out of jail. Grandchildren have been denied participation in school activities, such as taking field trips, sports, and even little league because they didn't have power of attorney. Also, this bill would enable the grandparents or other relatives to secure health care for the children. This will bill allow all children to be equal and not be discriminated from others because they are in the care of grandparents who willingly step in and provide a stable and loving environment for their grandchildren.

MOTION: Senator Davis made a motion to send S 1034 to the floor with a do pass. Second was by Senator Lodge and the motion carried by a voice vote. Senator Davis will carry this bill on the Senate floor.
Adjournment: Meeting was adjourned at 2:42 p.m.




DATE: February 7, 2003
TIME: 1:30 pm
PLACE: Room 437
MEMBERS PRESENT: Chairman Darrington, Vice Chairman Lodge, Senators Sorensen, Richardson, Davis, Sweet, Marley, Burkett
MEMBERS

EXCUSED:

Senator Bunderson
MINUTES: Senator Lodge made a motion to accept the minutes of February 5. Second was by Senator Marley and the motion carried by a voice vote.
RS 12410 Dale Higer, Uniform Law Commissioner presented this legislation which amends Section 39-6306A, of the Idaho Code, relating to the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act. The act removes language prohibiting the courts from enforcing support provisions of foreign protection orders. It also provides that the validity of an ex parte foreign protection order depends upon a respondent having had or having in the future an opportunity to be heard in a manner consistent with due process rights.
MOTION: Senator Sorensen made a motion to send RS 12410 to print. Second was by Senator Lodge and the motion carried by a voice vote.
RS 12878 Brent Reinke, Director Department of Juvenile Corrections presented this legislation to clarify the ability of the Department to collect reimbursement from parents whose juveniles are in custody of the Idaho Department of Juvenile Corrections. They have always had reimbursements from the parents, but due to a new law, the Dept of Health and Welfare cannot help with this collection, so an amendment was needed. The Department anticipates that this amendment will allow collection of between $300,000 and $400,000 by Fiscal Year 2005 in support and reimbursement orders from parents of these juveniles. It is further anticipated that once the collections systems are stabilized and funded through this amendment, the Department will maintain an annual revenue of approximately $450,000.
MOTION: Senator Lodge made a motion to send RS 12878 to print. Second was by Senator Marley and the motion carried by a voice vote.
RS 12880 Brent Reinke also presented this legislation which amends the Juvenile Corrections Act, and adds a section regarding secure detention of status offenders in the Juvenile Corrections Act. Change is needed to make Idaho statutes consistent and to keep Idaho in compliance with requirements of the federal Juvenile Justice and Delinquency Prevention Act of 1974, as amended.

These modifications in the Juvenile Corrections Act should minimally affect local governments by decreasing the number of juveniles they might otherwise detain. Violations of federal law place Idaho out of compliance with requirements of the act cited above, and as a result, the state and counties could experience a negative fiscal benefit by losing federal funds that are directly linked to keeping status offenders out of secure detention.

Tom Frost from the Supreme Court worked closely with this legislation, helping to define "status offense" and "status offender". "Status offender" means a person who commits a status offense. "Status offense" means an act, omission or status that is prohibited by federal, state, local or municipal law or ordinance by reason of minority only, regardless of where the same occurred.

Senator Marley asked about the language, "minority only" in this phrase. Mr. Reinke responded that meant there would not be an offense if that individual were an adult.

MOTION: Senator Sweet made a motion to send RS12880 to print. Second was by Senator Richardson and the motion carried by a voice vote.
RS 12891 Brent Reinke also presented this legislation which would amend Idaho Code to allow the custody review board of the Idaho Department of Juvenile Corrections to conduct an executive session, when authorized by law. This will also amend Idaho Code to exempt from disclosure certain records of the custody review board and add a new section, stating the duties of the custody review board to comply with open meeting laws, hold executive sessions and retain confidential reports of proceedings, to be available to certain parties. He told the committee that this is a mirror image of the Pardons and Parole section, regarding the Public Records Act.
MOTION: Senator Sorensen made a motion to send RS 12891 to print. Second was by Senator Marley and the motion carried by a voice vote.
H 85 Bill von Tagen presented this bill on behalf of the Attorney General's office. This bill amends Section 13-128 to provide the attorney general authority under the direction of the Department of Lands to prosecute actions for the recovery of penalties and costs incurred by the Direction of the Department of Lands or the Fire Warden of any forest protective district.

Currently, only the county prosecutors fo the county where the costs are incurred have the authority to recover costs. The Department of Lands is represented by the attorney general's office and needs to included in this process. After the decision to go forth is made, the attorney general assigns it to a deputy attorney general, and more specifically assigns it to the deputy assigned to the Dept. of Lands. Basically, he takes a file, carries it down the hall and delivers it to desk of the deputy AG. The problem is that the statute does not reflect this practice, but requires a referral to the prosecuting attorney. "The prosecutors don't do these cases, have never done these cases and in my opinion, they really don't want to do these cases, as they are busy representing the counties and prosecuting crimes." This bill adds the name of the Attorney General to where the reference says prosecuting attorney as "one who can bring these actions at the digression of the director of the department of lands." There is still the ability for a local prosecutor who feels strongly and contacts the Dept. of Lands, that the case could be referred back to him. At the present time, it states that the action will be brought where the cause arose, and this bill changes that to say that the venue would be provided by Idaho law which provides some alternatives such as the county the defendant resides, or Ada county.

MOTION: Senator Sorensen made the motion to send H85 to the floor with a do pass. Second was by Senator Lodge and the motion carried by a voice vote.
H50 Jim Woods, Program coordinator for the Department of Corrections presented this bill, which will cover administrative and membership costs required by the Interstate Commission for Adult Offender Supervision, which is a new commission that consists of interstate compact states where offenders can be shipped in and out of the state. There is a membership fee, that is applied to each state each year, and pro-rated by the amount of offenders. The fee for this year is $18,000.00 and there are no funds readily generated to cover this. Current practice allows probationers and parolees to leave the state on the Interstate Compact Agreement and it costs approximately $50 to $100 to process the application. Because of the interstate compact rules, the Dept. does not collect cost of supervision once the offender has been accepted in another state. As a result, all the cost of the transfer is borne by the Idaho Department of Correction. The bill would allow the Department to charge offenders up to a maximum of $100 for an interstate compact application fee when they leave the state of Idaho and move to another state.

Senator Richardson asked if a prisoner moves to another state, would that state assume parole. Mr. Woods confirmed that a prisoner would be monitored by the state they live in and they also would have to pay the cost for that monitoring. Senator Darrington commented that "there is no downside to this, that if the guys under parole want to move, they will pay their own way. The fiscal impact is enough to cover the cost of our fee into the association as well as some of the administration. With $40,000 tied on to the bill as part of the anticipated Fiscal Impact, it tells you that there are a pretty good number of inmates who move out of state. "

Senator Davis asked if the chairman was aware of any judicial challenges to this type of approach on constitutional rights of people traveling between states. Senator Darrington replied that he was not aware of this, but this is something that has taken place under has been recently updated. It is a practice that has been widely occurring for 50 to 60 years. The State of Idaho doesn't have to let these offenders leave the state."

Senator Richardson asked if this bill was appropriating $40,000 annually for the membership in the committee. He asked if this could be done or if it was the responsibility of JFAC. Mr. Woods responded that the fees are collected and will go into a dedicated fund that is specifically for probation and parole administration, so they wouldn't be asking for funds from JFAC as far as the general fund, but this money would be generated from individuals paying for the Interstate Compact application. Then Senator Richardson asked if the amount would be built up to $40,000 over a period of time, and was told that it would, and there should be no ceiling or cap, but it was an anticipated amount of revenue in the course of the years activities.

Randy Tilley, Department of Financial Management responded, at the request of the chairman, concerning the appropriation from JFAC. He told the committee that in the budget recommended by the Governor, there is an amount from the fee for the appropriation, for the interstate compact which is recommended at $18,000 and will be subject to JFAC's appropriation.

MOTION: Senator Sweet made a motion to send H50 to the floor with a do pass recommendation. Second was by Senator Lodge and the motion carried by a voice vote.
Adjournment: The meeting was adjourned at 1:55 p.m.




DATE: Monday, February 10, 2003
TIME: 1:30 pm
PLACE: Room 437
MEMBERS PRESENT: Chairman Darrington, Vice Chairman Lodge, Senators Sorensen, Richardson, Davis, Sweet, Marley, Burkett
MINUTES: Senator Richardson made a motion to accept the minutes as written except for a change in the date to reflect February 7th , instead of February 5th. Second was by Senator Marley and the motion carried by a voice.
RS12449C1 Rick Collignon, Idaho Department of Parks and Recreation presented this legislation that pertains to Recreational Trespass-Landholder Liability Limited. The Idaho Supreme Court has ruled that when fees are charged by a governmental entity for recreational purposes the existing limitations on liability for recreation trespass do not apply. The intent of this legislation is to clarify the liability of governmental entities for providing recreational opportunities whether or not a charge is imposed. Many recreational opportunities are supported by a user fee charge to partially defer some of the cost of providing these public services. Through this fee system the users who most directly benefit from these programs are expected to at least partially pay for the opportunities they enjoy. Due to a recent Idaho court decision, these charges could potentially lead to expansive undefined liabilities for governmental entities.

If this issue is not addressed legislatively, other management alternatives that governmental entities will be forced to consider other management alternatives that could include: eliminating or reducing recreational opportunities currently subsidized through user fees; subsidizing these recreational opportunities exclusively with taxpayer dollars; or increasing user fees sufficiently to cover additional operating costs associated with managing these services under the new standard for liability or potential losses due to increased liability exposure.

If this legislation is not passed, important recreational programs and services will be negatively impacted. This legislation has been recommended by several agencies.

MOTION: Senator Sorensen made the motion to send RS 12449C1 to print. Second was by Senator Lodge and the motion carried by a voice vote.
H 52 Sarah Scott, Program Operations for the Commission on Aging explained this bill. She oversees case management and activities carried out by the staff in the field and she said this bill is necessary to set up athreshold at which the Idaho Commission on Aging is required to report to law enforcement complaints of abuse, neglect or exploitation. In the past, the Commission has been required to report all complaints where such abuse, neglect or exploitation has caused any injury. This requirement has caused reports to be made to law enforcement that never reach the level of sustaining a criminal action. The Commission has received requests from law enforcement agencies that only complaints involving serious injury be reported. This bill would give the Commission the necessary discretion to screen cases that are reported to law enforcement. This mostly applies to care facilities, but could apply to a family member trying to care for a vulnerable adult. They don't have the capabilities to handle them, and could drop them, causing an injury and then be accused of abuse.

The statute is the Adult Abuse Neglect and Exploitation act. In the very first section, there is a declaration of policy and that the adult protection program is to investigate allegations of Abuse Neglect and Exploitation of vulnerable adults. In conjunction with that, part of their duty is to make appropriate referrals to law enforcement. Ms. Scott defined the terms in the statute: Abuse is the intentional or negligent affliction of physical pain injury or mental injury. Neglect is the failure of a caretaker to provide food, clothing, shelter, or medical care, reasonably necessary for sustaining the life and health of a vulnerable adult. This could also be intentional or unintentional. Exploitation is any kind of financial exploitation, any circumstances under which someone is trying to abscond an elderly person out of their funds or belongings. In the past, the adult protection statute, says appropriate referrals must be made to law enforcement, to report any case of injury. This proposed amendment would give the Commission the necessary discretion to screen cases that are reported. The goal is to do whatever is necessary to resolve the situation where an injury or neglect has occurred.

Jim Baugh, Executive Director of Comprehensive Advocacy Inc. spoke in opposition to this bill. Their duties is to investigate cases of abuse or neglect of people with disabilities, most are in facilities. Even though he understands it, and he also sympathizes with adult protection workers, but he felt is sets the wrong standard. Whether a case goes to law enforcement or not should be based on how serious the injury is, but not on the behavior of the abuser, and whether it is intentional and poses a threat to the person in the future. He felt this bill should go back to the Commission on Aging to work on and establish a standard which would look at whether the injury was intended or unintended, accident or the result of intention action or the reckless disregard for the safety and well being of the person.

Senator Burkett asked Mr. Baugh if an investigation was accomplished, there should be a report and then it should go to law enforcement. The critical language, is where it says "law enforcement agencies shall initiate an investigation, and shall determine..." It is requiring law enforcement to act. There was much discussion on how serious an injury is, whether it needs to be reported to law enforcement, but the real problem is whether the injury was intentional or not., Most of the patients have dementia and can't tell anyone what happened, which creates a real dilemma.

MOTION: Senator Bunderson made a motion to send H52 to the floor with a do pass. Second was by Senator Marley.
SUBSTITUTE MOTION: Senator Sorensen made the motion to send H52 to the 14th order for amendment. Second was by Senator Davis and the motion carried by a unanimous voice vote.




DATE: Wednesday, February12, 2003
TIME: 1:30 pm
PLACE: Room 437
MEMBERS PRESENT: Chairman Darrington, Vice Chairman Lodge, Senators Sorensen, Richardson, Davis, Sweet, Marley, Burkett
MEMBERS ABSENT: Senator Bunderson
MINUTES: Senator Lodge made a motion to accept the minutes of February 10 as written. Second was by Senator Sorensen and the motion carried by a voice vote.
RS 12983 Chris Bray, presented this legislation that was passed by the Senate last year as S1419, but did not come up for a vote in the House Judiciary Committee before the session ended. It concerns instances where the parent who is ordered to pay child support is asked by the custodial parent to assume the care and support of the child. This would solve a problem by allowing a credit for a period of time when the parent who is obligated to pay child support has physical custody of the child.
MOTION: Senator Sorensen made a motion to send RS 12983 to print. Second was by Senator Lodge and the motion carried by a voice vote.
RS 12984 Heather Reilly, Idaho Prosecutors Association, presented this legislation that would amend the Accessories law .The purpose is to clarify that a person may be charged as an accessory to a felony under Idaho Code when the person having knowledge that a felony has been committed, willfully withholds or conceals the felony; or harbors and protects the person who committed such felony even when the person who committed the felony has not yet been charged with or convicted of the crime. Currently, under Idaho Code the person who committed the felony must be charged with or convicted of the felony, such as murder, before a charge of accessory may be filed against a person who is hiding the murderer or concealing the crime. There were concerns from the committee that the law wouldn't apply if a person just harbored or protected the person committing the felony. Ms. Reilly was willing to work with those concerns of the committee.
MOTION: Senator Davis made a motion to return RS12984 to Ms. Reilly. Second was by Senator Sorensen and the motion carried by a voice vote.
H 3a Representative Jim Clark presented this bill that changes the current law that was created in 1998 as S1297, concerning the sexual offender registry and community right to know.

Representative Clark said there is a certain small group of people whose whereabouts should be known to ensure public safety. This legislation applies only to the worst sexual offenders as designated by the Sexual Offenders Classification Board about 6 months prior to their parole date or full term release date.. There are currently 21 individuals in Idaho with this classification of Violent Sexual Predator, who would be affected by the bill. These individuals include offenders convicted of rape or first-degree murder during rape. At the present time, a list with all the sexual offenders goes to the sheriff of each county, the Dept. of Health and Welfare, and to the school districts around the state. This legislation will identify the "worst of the worst" and the sheriff's will inform the community by placing ads in the local newspaper each week for three weeks. This sets a time frame of 30 days to get the notification out to the community, which will provide name, address and crime committed by the VSP. Also the VSP will be charged $50 to offset the cost of the ad. Since the VSP has to register every year and verify their address every 90 days with law enforcement and immediately after changing residence, for the rest of their lives, the procedure set up in this amended bill will add the element of public safety to the Community Right to Know portion of the law.

Bonnie Heilander, from Coeur d'Alene testified in support of H3 and was thankful to those who have supported this important law. Her daughter, Carissa was 14 years old when she was murdered by a registered sex offender. He is now serving a fixed life sentence in the Idaho State Penitentiary. The sex offender who murdered her daughter by de-capitating her after raping her at a campground, lived next door to her family, and seemed like a normal father. He went to work like other fathers, and the children went to school with her children. She knew he had moved from Washington, but what she didn't know was that he was a registered sex offender who had violently raped a 5 and a 9 year old girl and had also served time for child molestation. Although David Merritt was registered as a sex offender in Kootenai County, there was no way that the Heilander's could have known he was a child molester. Mrs. Heilander felt that if David Merritt's name had been published, her daughter would be alive today. She told the committee that "if predatory cougars were released into a populated area, it would be mandatory to warn the public so they could protect themselves. Predatory sex offenders are as dangerous if not more dangerous and are released to live among us everyday. We need to be warned so we can protect ourselves and our children."

Senator Darrington commented that just this last week he had looked at the VSP's on the internet. They are available for the public to see at the Idaho State Police Website, which is www.isp.state.id.us and follow the links for Violent Sexual Predators. This tells where they are living, the crimes they committed and where those took place. This was available about two weeks ago for the public to view.

Kathy Baird, Executive Director of the Sexual Offender Board answered some of the committee concerns. The Board has reviewed 43 offenders, and 21 of them are out. Right now, 5 have moved on to other states, 1 is waiting for a jury trial for molestation, 1 was recently arrested for domestic battery and was arrested immediately upon release, and 14 are currently incarcerated. The hope of the Board is that they will do better upon release, and not re-offend. Ms. Baird said there is currently a list of heinous crimes in the Idaho Code and if an offender fails to register, this is a felony punishable by up to 5 years in prison.

Senator Sweet asked Ms. Baird why these kinds of people are let out of prison and she was told that the Board has no choice, they are all sentenced, they serve their time and they are going to get out. There are no commitment laws in Idaho to keep them in prison, like there is in Washington state.

Senator Darrington commented that the Commission of Pardons and Parole is more reluctant about granting parole to sex offenders.

MOTION: Senator Sorensen made a motion to send H3 to the floor with a do pass. Second was by Senator Richardson and the motion carried by a voice vote. Senator Lodge will carry this bill on the Senate floor.
H72 Representative Leon Smith present this bill that amends on that was heard last year relating to small lawsuit resolution. The Supreme Court had the comments of judges and justices. This bill has been word smithed to death, with no substantive changes. There are just technical corrections to make the act function in different court settings and in conformance with existing law and Supreme Court rules.
MOTION: Senator Davis made a motion to send H72 to the floor with a do pass. Second was by Senator Burkett and the motion carried by a voice vote. Senator Davis commented that Section 10 provides for an emergency clause and went into effect January 1, 2003, so these amendments need to get in place as soon as possible. Senator Davis will carry this bill on the Senate floor.
Adjournment: Meeting was adjourned at 2:35 p.m.




DATE: February 17, 2003
TIME: 1:30 pm
PLACE: Room 437
MEMBERS PRESENT: Chairman Darrington, Vice Chairman Lodge, Senators Sorensen, Richardson, Bunderson, Davis, Sweet, Marley, Burkett
MINUTES: Senator Sorensen made a motion to accept the minutes of February 12 as written. Second was by Senator Davis and the motion carried by a voice vote.
RS 12823 This legislation would remove the sanitary supervision of barber shops, hairdressing parlors, retail cosmetics dealers, public bathrooms and bathing places from the jurisdiction of the Director of the Dept. of Health and Welfare.
MOTION: Senator Sorensen made the motion to send RS12823 to print. Second was by Senator Lodge and the motion carried by a voice vote. This will return to the Health and Welfare Committee as a bill.
RS 12992 Rondee Blessing, Boise City Attorneys Office presented this legislation. This was presented in the 2002 legislative session as S1451, originally proposed with felony punishments for second and subsequent offenses. This bill was then amended to remove felony punishments making all violations of this section a misdemeanor. However, the language "for a first offense" was left in the amended version of S1451a. This legislation will clarify that the offense of Intentional Destruction of a Telecommunications Line or Telecommunication Instrument is a misdemeanor that cannot be enhanced for a second or subsequent offense of this statute.
MOTION: Senator Sorensen made a motion to send RS12992 to print. Second was by Senator Lodge and the motion carried by a voice vote.
RS 12984C1 Heather Reilly presented this legislation which was corrected to clarify the requirement that a person knows when a felony has been committed and then harbors that person. This is the same legislation as she presented last week, but now it is more clear who will be charged as an accessory to a crime.
MOTION: Senator Davis made a motion to send RS12984C1 to print. Second was by Senator Richardson and the motion carried by a voice vote.
RS 12962C1 Senator Burkett presented this legislation that would amend Idaho Code relating to the duty of persons who do not disclose known information related to convicted sex offenders who are registered under the Notification and Community Right-to-Know Act. The purpose of this legislation is to amend section 18-8325 to require private employers to inform their minor employees and parents when the child is working with a convicted sex offender. This legislation is needed because it is not feasible for children or their parents to identify registered sex offenders in the workplace and they should know when the employer has such information. The employer may incur civil liability for damages if they are negligent in informing minor employees and their parents.

Senator Davis asked how it imposes a duty for those circumstances where an employer does know. His concern is that the legislation doesn't have any language requiring actual knowing by the private employer, and wondered if he was missing this part.

Senator Burkett responded that it indicates employers would have to provide notice if the minor employee is working with a convicted sex offender. He noted that the word "knowledge" is not in the legislation, but he felt the inference was there that the employer has the duty to report if they knew of the offender status.

Senator Davis asked how they would identify the parent or guardian, and how the notification would be given. Senator Burkett said that the legislation as written does not require written notice, but it would be good for the employer to give notice in writing. In a job application the employer could obtain the names of the parent or guardian.

MOTION: Senator Davis made a motion to return RS12962C1 to the sponsor. Second was by Senator Sorensen.
Discussion Senator Davis commented that this legislation should probably not be put in the immunity section of Code, and there should be plain language that they only disclose what they have actual knowledge of and if there is a duty to investigate. He also questioned what the sponsor's expectation of the employer is concerning an investigation. He also struggled with the negligence issue and was troubled by the joint liability language in line 25, which makes every potential employer liable for damages. " Parents and guardians are not as easy to identify these days and that fact should also be considered," Senator Davis concluded. Senator Darrington suggested that this legislation be discussed with the business community before it is brought back to the committee for printing.
VOTE: Motion carried by a voice vote.
S1093 Dale Higer, Uniform Law Commissioner presented this bill addressing the requirements of the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act. The Act removes language prohibiting courts from enforcing support provisions of foreign protection orders and provides that the validity of an ex parte foreign protection order depends upon a respondent having had or having in the future an opportunity to be heard in a manner consistent with due process rights.
MOTION: Senator Sweet made a motion to send S1093 to the floor with a do pass. Second was by Senator Sorensen and the motion carried by a voice vote.
Adjourn: Meeting was adjourned at 1:58 p.m.




DATE: February 19, 2003
TIME: 1:30 pm
PLACE: Room 437
MEMBERS PRESENT: Chairman Darrington, Vice Chairman Lodge, Senators Sorensen, Richardson, Bunderson, Davis, Sweet, Marley, Burkett
MINUTES: Senator Sweet made a motion to accept the minutes of February 17 as written. Second was by Senator Lodge and the motion carried by a voice vote.
S1115 Chris Bray, presented this legislation and told the committee that this bill concerns instances where the parent who is ordered to pay child support is asked by the custodial parent to assume the care and support of the child. This would solve a problem by allowing a credit for a period of time when the parent who is obligated to pay child support has physical custody of the child.

There are frequent instances where the parent who is ordered to pay child support, is asked by the custodial parent to assume the care and support of the child. Too often, after years have gone by, the custodial parent has successfully sued to enforce the child support obligation even though the custodial parent didn't care for the child. The present law, set forth in Sec. 32- 709(1), Idaho Code can be construed to require payment even under these harsh circumstances. The purpose of this bill will remedy this problem, by allowing a credit to be given against an accrued child support obligation in one limited circumstance. A credit would be allowed for a period of time when the parent who is obligated to pay child support has physical custody of the child with the knowledge and consent of the custodial parent. Last year, Senate bill 1419, a bill with the same concept passed the Idaho Senate by a unanimous vote. It did not come up for a vote in the House Judiciary and Rules Committee before the session ended . This bill has been rewritten to clarify that the finality of a child support judgment is not affected. It further clarifies that granting a credit in this one limited circumstance does not modify, alter, or set aside the terms of the decree. The language is the same as is established by the State of Oregon in their state law.

Senator Davis asked for a definition of the term "credit". Mr. Bray said the term credit is a specific term that limits any other alternatives. It also means that you have to establish first what the child support amount is. Offsets are larger than what a credit means. In regard to federal and state laws, the offset might allow another equitable remedy, such as medical bills paid against his child support obligation. Something like that might be legally justified, but a credit is only for application to the existing child support itself and only for an instance when the child has been with the paying parent with the knowledge and consent of the custodial parent. For this reason, the term "credit is more specific and less likely for any type of misinterpretation.

Brian Dockstader testified about his experience with this situation. His two sons came to live with him for 39 months, and then he found out he was being sued for back child support in the amount of $15,000.00. He contacted several attorneys who told him that he was out of luck. He became aware of Section 32-709 Idaho Code and with Mr. Bray began to prove that he had met his child support obligation by supporting the children while they were in his care, with their mother's knowledge and consent. He felt this bill is necessary for the good of the children, by not allowing a situation such as his to take place again, that others will be aware of these things through his experiences, and be able to save their money for their children's education and other care taking responsibilities.

Bob Gourley, of Emmett, Idaho testified that his daughter moved to live in Colorado her mother, but ran away from home. After several experiences such as this, he received a call from a Colorado social worker asking him to come pick up his daughter, which he did, as the mother could not handle her. His daughter remained with him for 25 months before returning to her mother. The mother sued Mr. Gourley for $40,000.00 child support for the time he had his daughter living with him. He was labeled as a "dead-beat" dad, according to the law. After retaining an attorney, spending a great deal of money, and over 3 years time, the matter was settled due to accurate record keeping and he was relieved of this burden.

Kirsten Ocker, Department of the Attorney General for the Dept. of Health and Welfare Child Support Services, testified that the department supports the concept of the obligated parent receiving credit for the time they had a child living with them as it happens very frequently. But, they were concerned about the wording, such as "reasonable parenting time", as it isn't clear as to the meaning. The contacted the Idaho Supreme Court who is awaiting input from the judges before making a decision. Health and Welfare will support whatever position the Court takes.

Senator Davis asked about the new language in the bill as to the final judgment, and would the parents be able to ask for a credit without filing a motion to modify. Ms. Ocker told the committee that these parents know they owe child support for that child, they just want credit for the time that the child spends with them for a lengthy amount of time. Another issue of concern is when this is allowable as it is in the statute dealing with the modification of child support, and there are a lot of situations when the parent isn't coming to the court to modify the child support they are just coming to get credit. It needs to be clear that the court can grant the credit upon a motion for credit.

Senator Darrington asked Ms. Ocker what her suggestions were for this bill. She replied that they would like to see it go to the amending order to make more clear how the process works which wouldn't take a lot of language to change it. She contacted the State of Oregon as this language came from their law, and "parenting time" is a concept they use frequently in parent law issues. It just isn't used in Idaho family law and should be cleared up as to the intent of this language.

Senator Davis asked if he understood correctly that the Dept. was not opposed to the philosophy but they just want to make sure that whenever a motion is set aside, altered, or modified occurs this section, they don't have to meet the permanent material change in circumstance, which is probably what Mr. Bray is hoping for in this legislation. Also the right to collect back child support belongs to the custodial parent, that the support has occurred, but the future right belongs to the child. Ms. Ocker told him that was exactly right as the problem is that child support enforcement is always taking action, and if they start collecting, and the order of court comes out giving them a credit that overpays the case, it causes problems for the department and a problem as a credit on future child support. There has to be a very close linkage and understanding of the actual debt.

Mr. Bray summarized by saying that the Department of Health and Welfare has had this legislation since December 3 along with copies of Oregon statute. To answer Senator Davis's question, the credit is only for arrears, or for the time the child is with the parent. There is no future ability for the court to give credit for the future. If the parent pays child support during this time, he doesn't get a credit, but only if he has not paid during this time, can he get the credit. The requirement of "parenting time" can easily be resolved by the courts, it is essentially the time spent for summer vacation. The language is in the bill, and doesn't require a motion to modify, or set aside.

MOTION: Senator Davis made a motion to send S1115 to the floor with a do pass. Second was by Senator Sorensen . Senator Bunderson felt the group working on this wouldn't have conclusions until next year, and those amendments should be seen before deciding on this legislation. He made a substitute motion to send S1115 to the 14th order for amendment. This motion died for a lack of a second. The main motion for do pass was carried by a voice vote. Senator Burkett will carry this bill on the Senate floor.
S 1096 Brent Reinke presented this legislation to amend Idaho Code to state that certain records of the Custody Review Board are exempt from public disclosure and can conduct an executive session. The Custody Review Board was empowered on January 1, 2003, and this would add a new section to the Juvenile Corrections Act to clarify the obligations of the CRB to meet under the Open Meeting Laws, to set forth details of confidential records. This is almost identical to the Commission on Pardons and Parole statutes. The reason for this is that matters discussed during the proceedings of the CRB need sensitivity and confidentially, and the current laws do not clearly apply to the proceedings of this new board. This will also preserve the privacy of victims who attend, as well as their addresses and written statements. However, normally required notices will still go out to any who have the right to attend, which is unchanged from present statute. This has been approved by the Allied Daily Newspapers and they are in support.
MOTION: Senator Lodge made the motion to send S1096 to the floor with a do pass. Second was by Senator Sorensen and the motion carried by a voice vote. Senator Lodge will carry this bill on the Senate floor.
S1095 Brent Reinke presented this legislation relating to the Juvenile Corrections Act which amends the Juvenile Corrections Act, regarding detention of status offenders, both when apprehended and then, after sentencing. This also adds a new section regarding secure apprehension and detention of status offenders in the Juvenile Corrections Act. Change is needed to make Idaho statutes consistent and to keep Idaho in compliance with requirements of the federal Juvenile Justice and Delinquency Prevention Act of 1974, as amended. This will also consolidate handling of status offenders in one section. Several sections of the JCA conflict with one another in appropriate management of status offenders in Idaho.
Tom Frost from the Supreme Court worked closely with this legislation, helping to define "status offense" and "status offender". "Status offender" means a person who commits a status offense. "Status offense" means "an act, omission or status that is prohibited by federal, state, local or municipal law or ordinance by reason of minority only, regardless of where the same occurred."

Senator Sorensen asked about the stricken language in Section 2, subsection (c). The language says "When there are reasonable grounds to believe the juvenile has committed a status offense. Status offenses are truancy, running away from or being beyond the control of parents, guardian or legal custodian and curfew violations." She was told that this language was eliminated at the request of the Juvenile Justice Advisory Board and will be put into the new section, Section 20-516a, section 3. . Mr. Reinke quoted part of the new section 1: " A peace officer may take a juvenile into custody, or a private citizen may detain a juvenile until the juvenile can be delivered into the custody of a peace officer, without order of the court when there are reasonable grounds to believe the juvenile has committed a status offense." This is a key part and one of the concerns throughout the state, is to make sure to provide for law enforcement to detain that juvenile. The Status offender who has been taken into custody but who have not been before the court, shall not be placed in a juvenile detention facility longer than 24 hours. " This is very important as to how status offenders are handled throughout the state. Also, it says "No status offender shall be sentenced to serve time in a county jail or be committed to the department of juvenile corrections." They don't want juveniles committed to the DJC on status offenses only. Three status offenses inside of 12 months constitutes one misdemeanor, but it is important that it is looked at that way, so juveniles are not committed on status offenses only and it has happened in the past.

Senator Burkett asked if a private citizen could detain a juvenile and was told that it would apply to curfew, runaway or incorrigible situations. Senator Burkett then asked if a 19 year old could detain a 17 year old that he happened to dislike. Mr. Reinke responded that this applied only to status offenses. Senator Sweet commented that the right of a citizen to arrest, however, could apply in the case of willfully concealing merchandise.

Tom Frost, Idaho Supreme Court was asked to explain this to the committee and told them that the Juvenile Justice Advisory Board and the Magistrate judges suggested that the language needed to be taken out of section (c) as it was too limiting to only these offenses.

Mr. Reinke said smoking and alcohol are handled in adult court, but it is a ticketable offense to find someone smoking underage, but not necessarily a status offense. Senator Sorensen asked if a child was smoking in a private home, could the parent report them? Nancy Bishop, attorney for the Department told that parents have the ability to call police on their own kids and do so quite often. At school, the School Resource Officer will ticket them for smoking at school.

MOTION: Senator Richardson made a motion to send S1095 to the floor with a do pass. Second was by Senator Sweet and the motion carried by a voice vote. Senator Richardson will carry this bill on the Senator floor.
S 1094 Brent Reinke presented this legislation which would amend code to clarify the department's ability and methods to collect funds from parents of juveniles in IDJC . Legislative intent is that parents pay, in whole or in part, the state's cost for the care and treatment of these juvenile offenders. As has been discussed before, the Department of Health and Welfare was earlier able to collect these funds, but Federal collections rules make that system no longer viable. This lack of funds has negatively impacted the state general fund, and the department's funding. He distributed a reimbursement sheet showing actual cases and how the amount that parent's pay is determined, as they try to work with these families not to put an undue hardship on them. (See attached #1) These payments will continue until the juvenile's 18th birthday and then cease.
MOTION: Senator Bunderson made a motion to send S1094 to the floor with a do pass. Second was by Senator Marley and the motion carried by a voice vote. Senator Bunderson will carry the bill on the Senate floor.
H219 Brent Reinke also presented this bill which amends the Juvenile Corrections Act to strike the language "criteria and operating procedures." It is not the role of a state agency to determine criteria and operating procedures for county probation departments.
MOTION: Senator Lodge made a motion to send H219 to the floor with a do pass. Second was by Senator Sorensen and the motion carried by a voice vote. Senator Marley will carry this bill on the Senate floor.
Adjourned: Meeting was adjourned at 2:47 p.m.




DATE: February 21, 2003
TIME: 1:30 pm
PLACE: Room 437
MEMBERS PRESENT: Chairman Darrington, Vice Chairman Lodge, Senators Sorensen, Richardson, Bunderson, Davis, Sweet, Marley, Burkett
MINUTES Senator Lodge made a motion to accept the minutes of February 19 as written. Second was by Senator Sorensen and the motion carried by a voice vote.
RS13071 This legislation had the number RS12387 on the Statement of Purpose and was presented by Ken Debert relating to qualifications of a designated examiner for purposes of adult and children's mental health services, to furhter define terms of becoming a designated examiner. This will be sent to the Health and Welfare when printed.
MOTION: Senator Sorensen made a motion to send RS13071 be to print. Second was by Senator Lodge and the motion carried by a voice vote.
RS13057 Bob Aldridge presented this legislation which will clarify some language in Idaho Code Section 15-6-107. This section, both in its existing state and as it is proposed to be amended by Senate bill 1034, refers to how creditors of a deceased may seek payment for debts of the decedent from non-probate assets. That section is primarily procedural. Since 1961, Idaho has had provisions exempting certain insurance products from debts. This bill is a follow-up bill for Section 15-6-107 enacted in 1972 and its amendment in this session, to make this even more clear by adding the subsection "This section shall not be affected by the terms of section 15-6-107, Idaho Code."
MOTION Senator Sweet made a motion to send RS13057 to print. Second was by Senator Richardson and the motion carried by a voice vote.
S 1121 Rondee Blessing, Boise City Attorneys Office presented this as a clean up bill to remove the language "for a first offense" which was left in the amended version of the bill as it appeared last year, S1451a. This will clarify that the offense of Interntional Destruction of a Telecommunications Line or instrument is a misdemeanor that is not enhancable for a second or subsequent offense of this statute.
MOTION: Senator Bunderson made a motion to send S1121 to the floor with a do pass. Second was by Senator Sorensen and the motion carried by a voice vote. Senator Sweet will carry this bill on the Senate floor.
S 1122 Heather Reilly returned with this bill to clarify when a person may be charged as accessory when the accessor harbors and protects a felon. This language needs to be in place to broaden the ability to charge and accessory before the trail and sentencing of the felon.
MOTION: Senator Lodge made a motion to send S1122 to the floor with a do pass. Second was by Senator Burkett and the motion carried by a voice vote. Senator Richardson will carry this bill on the Senate floor.
H 115 Mike Kane, representing the Sherrif's Association presented this bill designed to take care of a problem occurring in jails relating to sexual contact with a prisioner. This is supported by ICRIMP, who has paid out claims for this type of behavior.
MOTION: Senator Sorensen made a motion to send H115 to the floor with a do pass. Second was by Senator Marley and the motion carried by a voice vote. Senator Darrington will carry this bill on the Senate floor.
H 116 Mike Kane also presented this bill which is to clarify existing law regarding who may be liable for deliberately ignoring signs, barricades or other devices, entering closed areas and becoming lost, thereby causing the need for a search and rescue. Currently the law does not explicitly state that persons who are authorized to be on the land and who become lost cannot be held liable. This bill will make it clear that such persons cannot be proceeded against in court.
Senator Darrington asked if the sign has to be posted, and Mr. Kane responded that a verbal agreement or a sign posted every hundred feet or so is in keeping with the trespass law. This just applies to persons with actual knowledge have to prove knowing deliberate intentional violation.
Senator Burkett asked if this applied to private land, and was told that the existing law is used on private land. Ski hills are private land, but the county is called to go to rescue people who go into areas that are off limits. This is broad enough language to include land owners. Senator Darrington asked about 2477's and mentioned that there is a lot of conflict between those who want access from the land owner and this legislation. Mr. Kane told he committee that if an area is closed to the public by anyone, and someone goes there deliberately and gets lost, then they will be held liable for all the costs incurred.
MOTION: Senator Burkett made a motion to send H118 to the floor with a do pass. Second was by Senator Lodge and the motion carried by a voice vote. Senator Marley will carry this bill on the Senate floor.
Adjournment: Senator Darrington told the committee that there would be no meeting on Monday, February 14, and that the committee would hear H92, the Tort Reform bill on Monday, March 3. Meeting was adjourned at 1:58 p.m.




DATE: February 26, 2003
TIME: 1:30 pm
PLACE: Room 437
MEMBERS PRESENT: Chairman Darrington, Vice Chairman Lodge, Senators Sorensen, Richardson, Bunderson, Davis, Sweet, Marley, Burkett
MINUTES: Senator Lodge made a motion to accept the minutes of February 24 as written. Second was by Senator Sorensen and the motion carried by a voice vote.
RS13062 This concurrent resolution would reject a pending rule of the Idaho Commission on Aging relating to senior services program fees and client contributions. The bill will be sent to the Health and Welfare committee.
RS13064 This concurrent resolution would reject a pending rule of the Idaho Department of Health and Welfare relating to eligibility for aid to the aged, blind and disabled and concerning rebut table presumption.

Senator Darrington told the committee that these were concurrent resolutions being sent to print by our committee at the request of the chairman of Health and Welfare, and will return to that committee. If these resolutions are adopted by both houses, it would prevent the agency rule from going into effect.

MOTION: Senator Sorensen made a motion to send RS13062 and RS12064 to print. Second was by Senator Lodge and the motion carried by a voice vote.
RS13096 This is relating to regulation of installers of heating, ventilation and air conditioning systems, and is a bill being printed in our committee at the request of Senator Andreason and the Commerce Committee. It will be returned to that committee as a bill.
MOTION: Senator Sorensen made a motion to send RS13096 to print. Second was by Senator Lodge and the motion carried by a voice vote.
RS13098 This is a resolution to recognize March 3 as "Read Across Idaho Day" and honors Dr. Seuss's birthday as a time to remember the importance of reading. Senator Malepeai and Senator Marley co-sponsored this bill and asked the committee to send it right to the floor, so it would be in place by next Monday.
MOTION: Senator Richardson made a motion to send RS13098 to print and to the Senate floor. Second was by Senator Sorensen and the motion carried by a voice vote.
S1109 Rick Collingon, Parks and Recreation presented this bill that would clarify the liability of governmental entities for providing recreational opportunities whether or not a charge is imposed. The Idaho Dept. of Parks and Recreation was created with the intent to secure areas of scenic beauty, historical significance, recreational utility and to provide recreational opportunities for our citizens. They have also been directed by the legislature to make reasonable charges for the use of these areas. There are now more than 75 State parks and recreational trailways used by more than 3 million residents and visitors each year. At most of these parks and trailways, there is some type of self-supporting user fee to help offset the cost of operating and maintaining the operations. Collectively these user fee/self-tax efforts offset more than $7 million of the cost of operating these each year. In Idaho, all State Parks and public parks regardless if they are managed by the state or a political subdivision are financed 100% by public funding.

The intent of this legislature is to address the issue of whether or not there is in fact a difference in an individuals responsibility for their own actions while in a public park or participating in a public recreation program whose cost of operation and maintenance cost are supported by public revenues generated from taxpayers in the form of sales taxes, income taxes, property taxes, registration fees or user fees. Also, it needs to be determined if it was the intent of past legislative bodies to treat public agencies that were created for public recreation purposes the same as private businesses who charge fees, as a source of profit for the use of their property for recreation purposes. This bill creates a definition for the term "charge" where there has been no definition provided. The new definition states that a "Charge for the purposes of this chapter shall mean a fee collected by or on behalf of the owner of private lands to secure authorization to use private lands for recreational purposes, but excluding therefrom fees collected by or on behalf of the owner of public lands to defray the cost of publicly-supported programs or services related to recreational purposes".

This language makes it clear that publicly supported programs or services that are operated with public funds are treated differently from private landowners who charge fees for the recreational use of their property as a means of adding to their income. Diane Hill, director of Weiser recreation department told the committee that Weiser, Midvale and Cambridge funds are limited and rely on user fees. They have concern for children of these communities and don't deny any child to participate if they don't have registration funds. She presented a letter from the Mayor in support of S1109. (See attached letter #1)

Dave Fair, director of Parks and Recreation for Post Falls, testified that this issue affects all communities from the smallest to the largest. This bill is supported by the State Organization. The oldest park is 87 acres on the Spokane River and is open from Memorial day to Labor Day 24 hours a day 7 days a week. People can walk into the park without paying a fee, but must pay to park. They wondered how they could protect themselves when they don't charge a user fee. The parks have high usage and are open to vandalism. Large cities can cover increased costs by passing it on, but smaller cities cannot. This is too great an impact on residents, but could be accomplished by user fees and donations.

Senator Burkett asked what is the difference between parks and recreation areas and private. He was told that if a spot was private, there would be a fence around it, and they would have control of access. Parks have open access and cannot control the number of people going into the area. There is no charge for the activities inside parks, such as rock climbing, volleyball, boat launching, hiking, volleyball courts, and picnic shelters. If a private entity, every activity could have a charge.

David Kerrick - Idaho Trial Lawyers Assn. spoke in opposition to this bill. As written, he feels there are problems with inserting this statute into a section that is encouraging people to invite others onto their property without charging. He read from an article he gave to each committee member, quoting Walter Bithell commenting about a similar issue. (See attached article #2)

Mr. Bithell states that "there is no rule in Idaho requiring the owner of land to place signs on the land indicating that the land is private property. Whether a landowner is responsible when a person is injured on his land depends on the status of the injured person, whether they were an invitee, licensee or trespasser." An invitee is someone who enters the land for the purpose connected with the business conducted on the land, and the landowner's duty is to warn them of a hidden or concealed danger and to keep the property in a reasonably safe condition. A licensee is a visitor who goes on the land with the consent of the landowner in pursuit of the visitor's own purpose. A common example of a licensee is a "social guest." The landowner is only required to share the knowledge of any dangerous conditions on the land. A trespasser is anyone who goes onto another's land without permission or invitation. A landowner's duty is very limited-he must only refrain from "willful or wanton" acts which might cause injury. In other words, the landowner cannot set a trap for an unwary trespasser, and they will not be responsible for any unsafe conditions or activities taking place on the land.

Mr. Bithell also states" There may be protection by Idaho's Recreational Use Statute, which is designed to encourage landowners to make their land and water available to the public for recreational purposes. It applies to both private individuals and public entities and governs a wide variety of recreational uses including hunting, fishing, rafting, motorcycling, snowmobiling and boating. If the landowner permits the public to use his land, the statute limits the landowner's liability if something should happen. However, the statute only protects those landowners who do not charge for the use of their land. If the landowner conditions entry on the land upon some type of payment, for instance a vehicle entrance fee, he loses the protection offered by the statute."

Mr. Kerrick asked the committee to hold the bill and take care of this in the soverign immunity section of the law. The problem is in line 9, "The purpose of this section is to encourage owners of land to make land and water areas available to the public without charge for recreational purposes." He told the committee that under current law, the government has no duty to check for safety on lands. Their duty is to warn about obvious dangers.

Senator Darrington told the audience that this discussion would have to be continued on Friday, due to the time constraints for this meeting. The committee will reconvene at 1:30 p.m. on Friday, February 28.

Adjournment: The meeting was begun at 2:20 p.m. and was adjourned at 2:55 p.m.




DATE: February 28, 2003
TIME: 1:30 pm
PLACE: Room 437
MEMBERS PRESENT: Vice Chairman Lodge, Senators Sorensen, Richardson, Bunderson, Davis, Sweet, Marley, Burkett
MEMBERS

EXCUSED:

Chairman Darrington
MINUTES: Senator Marley made a motion to accept the minutes of February 26 as written. Second was by Senator Sorensen and the motion carried by a voice vote.
Committee Vote: H62 was referred to our committee and needs to be re-referred. Senator Sweet made a motion to send H62 to the floor to be re-referred to the Commerce Human Resources committee Second was by Senator Sorensen and the motion carried by a voice vote.
RS 12506C1 Senator Bunderson presented this legislation which bans the promotion of or participation in Badman, Tough man, ultimate fighting and martial arts events, whether amateur or professional, with certain exceptions. Violators will be guilty of a felony. Throughout the nation, these "events" often result in serious injury and death of some participants. In 2002, a participant in one of these events in Pocatello was killed. Prohibiting such events is sound public policy.
MOTION: Senator Sorensen made the motion to send RS12506C1 to print. Second was by Senator Bunderson and the motion carried by a voice vote.
S1109 Rick Collingnon, Idaho Parks and Recreation gave an update to re-acquaint the committee on the discussion from Wednesday. This legislation addresses recreational trespass in a section of code where a state allows itself to be sued for land used for recreational purposes.

Brad Eidam, Idaho Trial Lawyers Association spoke in opposition to the bill and amplified Mr. Kerrick's concerns. This legislation is found under the fish and game statute, and if not changed to common land, couldn't be held accountable. An amendment was made in 1980 to include public lands. Whether private or public land, if you don't charge, you will simply be a trespasser. Their concern is that public and private land is on the same level of care. This reduces the government obligation to the public, such as a picnic shelter, or a zoo or museum.

Mike Kane spoke in behalf of the Idaho Association of Counties which supports S1109. The bill clarifies the liability of governmental entities, including local government, when they provide recreational opportunities and charge a user's fee. This fee is to defer some of the cost of these programs offered to the public. The court has ruled that imposition of such fees exposes governmental entities to liability from injury claims. By clarifying the definition of a "charge", this bill exempts local governments from such liability in these situations. Without the protections offered by S1109, recreational opportunities would be reduced or user fees increased, as governmental entities seek to manage the increased liabilities attached to such activities.

Senator Sorensen asked if it would help to define the term, "publicly supported programs", and Mr. Kane said it certainly wouldn't hurt.

Senator Davis asked if someone comes on private land, what happens and was told that if the land owner is negligent, they will be liable. Senator Davis then asked if that land were public, and was told that negligence doesn't apply, but willful, wanton and disregard of property would apply. These are the statutes that have been in place the last 20+ years and operated for that time. He couldn't tell the committee what the best situation was, but that a cost in defense is a hit on the cities, and we just don't live in a perfect world.

There was a lot of discussion about the word "charge" and what it covers, and that possibly it should be defined further to distinguish public from private.

Lynn Luker, an attorney representing himself, spoke in opposition of the bill and likened it to a bridge built for passenger cars that someone wants to drive trucks over. He told the committee that in 1980 suggested immunities should have gone into the TORT act. There is a standard of negligence, that if you were hiking up a trail, you don't expect anyone else to be liable, but if you go to a waterslide in a park, you expect it to be operated in a responsible manner. He proposed to move this statute into the Tort Claim act.

Senator Marley asked if we can't change and close off parks and people go in there anyway, what liability is there, and was told that there is no change from the present law and there is no liability.

Jim Dickinson, Ada County Prosecutor's office spoke in favor of the bill as did Roger Fuhriman, Bureau chief of Idaho Department of Fish and Game. Senator Sorensen asked him if this would be better in a Tort Claims act, and was told that the state has to address in Tort claims, as the solution is there. The issue is policy guidance and both sides are headed in a different direction. When asked how close to compromise they came, they were told the line was drawn at negligence and reckless.

MOTION: Senator Bunderson made a motion to send S1109 to the floor with a do pass. Second was by Senator Marley. Senator Davis said he was not in favor of this bill and there shouldn't be a difference in standard care for a private or public land. The definition of owner needed to be defined. Senator Sorensen said the legislation wasn't clear and correct and if parks are closed it will impact the issue of state funding. She would not be voting for the bill. Senator Burkett said that there was a need for a separate statutory scheme. By combining these sections of code, it messed it all up. He didn't feel that parks would be closing if this didn't pass, but it needs to be held and the issues addressed. Senator Burkett made a substitute motion to hold the bill in committee for re-drafting. Second was by Senator Sorensen and a roll call vote was held. Vote was 4 to 3 in favor of holding the bill.
H 216 Representative Mack Shirley presented this legislation for the Board of Certified Shorthand Reporters to permit them to continue to fulfill the statutory mandate to protect the public welfare through licensing and enforcement activities, it is necessary to increase the previously established cap on the amount that the board can charge for renewal fees. This board is a self-sustaining agency in Idaho, and this will raise the fee for renewal to $75.00. They are audited annually and fees paid come from court reporters. Increasing the cap rate on renewals will provide the board with the flexibility to adopt, by rule, renewal fees that exceed the currently established amounts.
MOTION: Senator Sorensen made a motion to send H 216 to the floor with a do pass. Second was by Senator Davis and the motion carried by a voice vote. Senator Lodge will carry this bill on the Senate floor.
H 253 Rick Collingnon presented this bill he worked on with Representative John Campbell. The purpose of this legislation is to reduce some penalties from misdemeanors to infractions for certain recreation laws. This relates to penalties for violation of recreation laws to provide for infraction penalties for violations of statutes or rules of the department of parks and recreation. It mainly addressees 4 penalties within the code. They are for Registration of ATV and motorbike, transfer of sticker (15-day requirement), non-resident registration exemption, and noise abatement - ATV and Motorbike.
MOTION: Senator Sorensen made a motion to send H 253 to the floor with a do pass. Second was by Senator Davis and the motion carried by a voice vote. Senator Sweet will carry this bill on the Senate floor.
Senator Bunderson gave the committee copies of his report on the Task Force of key leaders to evaluate Idaho's Statutory Rape Laws. After all the data was gathered and reviewed, there appeared to be no compelling reason to move forward with any legislation at this time, and accordingly none was recommended. At the chairman's request, the report will be a part of the official minutes. (See attached report) Senator Sweet asked about male rape and was told by Heather Reilly, Prosecuting attorney's office that male rape is in a separate code section, and there is not a comparable subsection criminalizing what is commonly referred to as "statutory rape".

Senator Lodge, acting as Chairman suggested to the committee that this discussion carry over, according to the call of Senator Darrington when he returns. Senator Burkett suggested bringing forth some legislation for this year. Senator Sorensen was also in favor of that suggestion.

ADJOURN: Meeting was adjourned at 3:20 p.m.




DATE: March 3, 2003
TIME: 1:30 pm
PLACE: Room 437
MEMBERS PRESENT: Chairman Darrington, Vice Chairman Lodge, Senators Sorensen, Richardson, Bunderson, Davis, Marley, Burkett
MEMBERS

EXCUSED:

Senator Sweet
MINUTES: Senator Sorensen made a motion to accept the minutes of February 28 as written. Second was by Senator Marley and the motion carried by a voice vote.
H 92 Ken McClure representing Givens Pursley on behalf of the Liability Reform Coalition spoke in favor of Tort Reform, and presented a list of the Members of the Idaho Liability Reform Coalition. (See attached #1)

He said this was brought about to modify rules for the determination and imposition of tort liability in Idaho, and Mr. McClure asked the committee to take another look at some of the decisions made when tort reform was considered before, as the coalition felt they were not appropriate and asks for correction at this time. Three provisions of tort reform would be modified, as the original tort reform was enacted in 1987 and has not been revisited since. It would clean up the repeal of joint and several liability by repealing exceptions for environmental damages and damages associated with medical devices and pharmaceutical products. It would reduce the cap on noneconomic damages to $250,000.00 It would impose limits on punitive damages. Finally, it would modify the appeal bond requirements to enable defendants to appeal large awards for punitive damages by posting a bond for compensatory damages and the first million dollars of punitive damages. To the extent that it makes civil disputes more efficient to resolve, it should reduce costs for governmental units involved in those disputes.

In 1987, the "deep pockets" rule was repealed except for subsection 5 which basically says that either party is responsible for actions of another. Subsection 6 and 7 are now stricken, but were only placed there in the beginning as two committee members said they wouldn't vote for reform if that language was not there. These concern cause of action arising out of a violation of law relating to hazardous or toxic waste or solid waste disposal and also the manufacture of any medica devises or pharmaceutical products.

Limitation on noneconomic damages is being reduced from $400,000 to $250,000 beginning July 1, 2004. In Idaho Code 6-1603, Economic damages is described as "mean objectively verifiable monetary loss , including but not limited to out-of-pocket expenses, loss of earnings, loss of use of property, cost of replacement or repair, cost of obtaining substitute domestic services, loss of employment, medical expenses, or loss of business or employment opportunities." In the case of a wrongful death, each gets up to $250,000. This cap is constitutional and violates the right to a jury trial. There is no history of large punitive awards in Idaho and this is award is not designed to compensate for injuries, but for civil punishment for the person causing the injury. The function of the judicial system is to compensate, but not more than necessary. If a person owes another, and they know it, why does there need to be a lawsuit, unless the person wants to become rich and retire off the lawsuit.

Senator Darrington asked what you say to a young person who has been in an accident, the economic damage not especially great, as they can work and go about their normal activities , but they are in tremendous pain and will be for the rest of their lives, they suffer day in and day out, and with a $250,000 cap awarded in full, they might get $150,000.00 if this were to become law. Mr. McClure told the committee "At some point you have to acknowledge that payment of any amount of money doesn't make pain go away. Unfortunately, irrespective of the amount of money paid, the pain continues. "

Senator Darrington then commented that according to his mail, doctors and business people expect that the passage of this legislation will ease, alleviate and cure their insurance problems, and asked what he should say to them. Mr. McClure told the Senator to say to them what he would say to them, that he "hoped they were right." There are a number of things that affect the price of insurance and this is principally an insurance bill.

Senator Davis asked in the interest of time, to submit three pages of questions to Mr. McClure and asked if they could be answered and returned to the committee at the next meeting. (See attached #2)

He did ask Mr. McClure if the proposal the coalition brought forth in 1987 had an escalator clause put in and was told it did not. The follow-up question was if that escalator was put on the $250,000 that was proposed as anticipated year, what would it be today. He was told that it would be $426,350. Then Senator Davis asked why that wasn't the starting number this time. Mr. McClure said it was a benchmark and from their point of view, there isn't a great need to tab that to an inflationary index which would require them to say, $250,000 was the number then so therefore it must ever be more the same. States are still enacting caps on noneconomic damages, and the government is proposing caps in that amount. Senator Davis asked about the problem with punitive damages in Idaho as he has seen that they are rarely if ever given in Idaho and was told that they are rarely given, but are given in an amount that causes great concern, as there were cases up to $25 million. Ninety per cent of cases are settled upon expectation of a jury in a trial. Senator Davis then asked if a person couldn't sue for punitive damages, but had to get the courts permission to add that to the litigation, and was told that was true.

Senator Bunderson asked about punitive damage in the public sector domain, and can it go to the claimant? A number of states have opted to recognize that punitive damages would go on some basis to the public sector and he wondered if this was considered in deliberations. Mr. Mc Clure responded that several states have done that, but they chose not to because you pay a punitive damage claim to the general fund, and it might be seen as a tax relief to juries, but this idea was of merit and not an easy decision to reach.

Senator Marley asked for a better definition of "wanton" as it was talked about being a lawyer term. Mr. McClure responded that "wanton" was "willfull and wanton" and essentially means that a defendant has acted with an acknowledgment of the great risk associated with their actions and are indifferent to those actions.

Senator Burkett asked about the people who have written letters expecting their insurance costs to go down on passage of this bill, and is there evidence on the impact of controlling insurance costs. He was told that there is evidence that it will and evidence that it won't as the studies go each way. In a competitive market, if the costs go down, the price will go down. The Dept. of Health and Human Services conducted a study, but there are many studies.

Senator Richardson was trying to weigh the value of the mail he has received and asked what is urgency of this bill in our state. He was told that we are fortunate in Idaho not to be in as dire straits as our juries haven't given such awards, but there are significant changes in insurance, as it is becoming less available, and also with premium increases. Mr. McClure said the house is not on fire, but we don't need to wait until the house is on fire to take action.

H92 David Kerrick, representing the Idaho Trial Lawyers spoke in opposition to H92, as he has grave concerns with the bill. The concerns are not so much for the claim of existing clients, but for future victims of negligence in this state, and who might be affected by this. Idaho is not known for being the insurance or manufacturing capital of the United States. So when we look at this bill, we wonder how this is going to help Idaho, and the net effect is to help out -of-state interests by protecting corporate wrong doing, insurance companies, and big manufacturers at the expense of Idaho citizens who will have their fundamental jury rights drastically curtailed. If you don't think this is a drastic piece of legislation, think back to when you first heard about it. The doctors have been really pushing this bill, which is misguided as very little of the bill relates to doctors. The first part of the bill protects manufacturers of medical devises and pharmaceutical companies, which if you were a doctor involved in a negligence action, you would want to make sure that it was possible for a claimant to recover against a large pharmaceutical company or someone who manufactured a defective medical devise, both of which are outside the state of Idaho.

The second provision, the cap of $250,000 on non-economic damages doesn't just involve medical malpractice, it covers every kind of negligent action. The 3rd and 4th sections are not applicable to doctors, because they have to do with punitive damages and there has never been punitive damages awarded against a doctor in the history of this state. In order to get a punitive damage award, a plaintiff has to prove that the conduct was intentional, outrageous, willful or wanton, and no Doctor is intentionally going to amputate the wrong leg- it just doesn't happen in the context of medical treatment. The purpose of punitive damages are to punish evil behavior and deter that person or corporation from undertaking such a conduct again. The jury must determine what is appropriate under the circumstances of the case. An amount of money deemed sufficient to deter and punish an individual of modest means may be significantly different from the amount necessary to deter and punish a huge corporation worth hundreds of millions or billions of dollars.

The Idaho Trial lawyers have provided a lot of documents over the course of the last couple of months and Mr. Kerrick asked that they become a part of the record. One of the key pieces of legislation passed in 1987 shows that Idaho already has TORT reform, in fact, extensive tort reform. All the states were analyzed as to their tort reform and they were put in three categories, those that enacted none or little tort reform , moderate amount and then those that enacted a heavy level, and Idaho is in the last category. Then the 15 years since then were analyzed as to insurance rates, and the conclusion is: It doesn't matter if you have a lot of tort reform in your state, or a little tort reform , insurance rates operate independently of tort reform. Primarily the driving factor behind insurance rates are conditions in the insurance market. The president of the tort reform association is quoted as saying "We wouldn't tell you or anyone that the reason to pass tort reform would be to reduce insurance rates." Mr. Kerrick told the committee "There has been no evidence offered to show that this bill will lower insurance rates, control insurance rates, or moderate insurance rates, and the proponents are asking such a drastic sacrifice to your rights and those of your constituents, there should be some statistical data that they are relying on."

He distributed a letter from Patti Tobias, Administrative Director of the Courts with findings of a survey of the courts asking "How many tort cases in the last two years has the judgment for non-economic damages exceeded the sum of $250,000?. " Thirty of the 38 judges responded and reported a total of 9 cases in the last two years, exceeding this amount. With 500,000 cases a year going through the Idaho courts, nine cases is not a lot of cases. Ms. Tobias points out on behalf of the judges that H92 will increase the workload, as motions to amend a pleading to allege a claim for punitive damages are a "relatively common event." At the present time, the judges have to have evidentiary hearings to "weigh the evidence", or a mini-trial, and a case would be tried twice with witnesses and exhibits. The other point of concern from the judiciary is that in the 4th section of the bill, §13-202 the proposed amendment conflicts with existing Supreme Court rules.

The fiscal impact on this bill is inaccurate, and you will learn from other witnesses that by placing a cap of $250,000 there will be more trials. A case that normally would settle for this amount, could end up in a trial for two years, so the insurance adjuster would feel it could be worse, so they will offer a lesser amount. The experience of others with a cap, especially in California where they have a $250,000 cap on medical malpractice cases, shows that all cases are tried because the insurance companies force it to trial so the plaintiff can get the full $250,000.00. The fiscal impact statement essentially says that this will reduce litigation but this is not the case. The bill states on the fiscal impact "This bill will have no negative fiscal impact. To the extent it makes civil disputes more efficient to resolve, it should reduce costs for governmental units involved in those disputes."

"When a measure such as this that violates our traditional notions of justice in this country, that the wrongdoer should pay for the damages caused by their conduct or omission, and if you are going to limit the damages that the wrongdoer would pay, then who is going to pick up the rest of the cost. The victim will pay a portion, their families will absorb the loss and in some cases the taxpayer will end up picking up the social cost of injured clients." Mr. Kerrick told the committee and then asked :" As legislators do you want to say that you are smarter than a jury that can sit and listen to all the facts of the case and decide what the value of that loss is, and say that it could never exceed $250,000. The same applies to a non-working spouse or a retired parent. " A lot of people take the lesser amount offered by insurance companies rather than go through the stress of a trial and this is a payoff for the insurance companies that are being protected by this legislation.

Mr. Kerrick felt that there wasn't a problem, especially in Idaho. Juries in Idaho are conservative and careful in the damages they award, and we don't have runaway jury verdicts here. There are no examples of ridiculous cases in Idaho, but there could be cases in other states. This is a fundamental right in Article 1, section 7 - the right to a jury trial and this is a violation of the right to a jury trial. "You wouldn't consider capping the number of guns a person could own, the amount of religions tolerated in the state, or capping the amount of free speeches, and so why would we be capping the right of a trial by jury?, he concluded.

Senator Bunderson was looking at a report from Price Waterhouse Cooper on rising health care costs, which reported that damages awarded in malpractice suits are skyrocketing, with the median award increasing 43% in 2000. A few claims ran as high as $40 million, but awards are only part of the picture since the majority of cases never result in a judgement, but cost millions of dollars to defend. The threat of litigation is a significant driver in the unnecessary use of treatments and medicines. He questioned that even though it was indicated that this law doesn't hit medical malpractice, that it did cover it. The cost of liability insurance driven by claims made elsewhere but the risk has to be evaluated by the insurance company for what is going on in the industry. If economic development is to be improved in Idaho, put a cap on the claims, which will drive industry to Idaho, and asked for comments.

Mr. Kerrick responded that he had not seen that article, but noted that it said there was a problem elsewhere, but not in Idaho. H92 will cap the rights of Idaho citizens to the benefit of insurance companies in other states, because the insurance industry does not set rates based on what happens in small states like Idaho. Senator Bunderson said he agreed with that, unless Idaho is differentiated from others, but there were businesses that wanted to locate in Idaho. He felt that the marketplace will drive action to write such policies in Idaho, if businesses want to come here because of the benefits.

Senator Sorensen asked where frivolous claims are mentioned, as she couldn't find it in the Statement of Purpose or the legislation. Mr. Kerrick told her that seems to be one of the urban legends that drives legislation of this kind, and there isn't anything in the legislation or Statement of Purpose that discusses frivolous claims. For follow-up she asked if $250,000 was considered to be an artificial arbitrary number, and how is the $400,000 determined or is it also arbitrary. She was told that the opponents are not trying to change that cap, so burden isn't on them to explain, but on Mr. McClure who brought the legislation in 1987 and is now bringing the new number now.

Senator Richardson asked where the right to have a trial by jury was taken away. Mr. Kerrick responded that there will be a right to a trial by jury, but a portion of that right is being taken away for the injured victim by capping the damages.

Senator Sorensen mentioned that in Nevada the Ob-Gyn's are struggling as their insurance is above the $150,000 level per year and they are exiting the state because they cannot afford the premiums. "Why in a state like Nevada is this occurring and not in California? ", she asked. Mr. Kerrick referred to a handout that shows Nevada passed a tort reform package at the request of the medical profession and within days, the insurance industry announced that it was going to raise rates. On August 7, 2002, in Nevada caps were established, and on August 9, Nevada's largest malpractice insurance carrier said it would not cut rates in 2002 or 2003 and within weeks other insurance companies also said they would not reduce rates. Without some kind of guarantee in the legislation, Idaho isn't going to have any better luck to get insurance rates lowered than Nevada did.

Senator Sorensen felt it was very clear that in Nevada rates have soared whereas in other states, such as California where they have had tort laws, such as this, their rates have stayed more stable and availability of the carriers is far greater. Mr. Kerrick responded that he was glad that the California example was brought up as they had passed Proposition 103, which creates a commission , similar to Idaho's Public Utility Commission, where insurance carriers have to request increases to justify their rate increases and that is what has moderated the rates in California. The actual cause is that the insurance companies were trying to vie for market shares and now the market is down, the interest rates are down, and the insurance companies have to raise their premiums to stay profitable.

Senator Davis said that if on September 11, 2001, a plane was hijacked and flown into the state capital, what would be the limitation of the non-economic loss as well as punitive damages if this bill became law. He was told that the non-economic damages would be capped at $250,000 and the punitive damages would also be capped, assuming that there was a cause of action against the hijackers or organizations that promoted this, they would be partially immunized.

Senator Bunderson asked then what would be the economic damages, considering the earning capacity of all the people and the impact of investigating and the damages tot he physical structure, there would be a number that couldn't be estimated. Mr. Kerrick responded that the plaintiff doesn't gain anything by economic damages-if the bills are paid, the doctor is happy, and if my wages are paid, I would have that anyway, so the economic damages doesn't compensate me.

Senator Burkett asked for the definition of non-economic damages and was told that the definition was in Section 6-1601. Then Senator Burkett asked if the loss of a family incurred, and he thought it would be non-economic, but wondered how the loss of income for retirement years would be classified. Mr. Kerrick verified that the expectation that when you turn 65, you can live on your pension, play with grandchildren, work in garden, then those are non-economic damages.

Mr. Kerrick turned over some of his time to Kurt Holzer who showed data from judges throughout the state asking if there were verdicts that in Idaho where juries are making decisions awarding non-economic damages that are out of control and making punitive damage award that are out of touch with what is going on. The short answer is that there is not a problem in courtrooms in Idaho today. In the response to the judges survey, 32 of 38 judges with 235 years of combined experience, thy could only identify 3 punitive damages in their careers in excess of $1 million dollars. One was the Aryan nations. Another was where the insurance company stopped payin medical expenses for an 84 year old lady and there was a $4 million punitive damage to this woman who relied on them to provide her medical care. The other was $2 million against a strip bar in Meridian, as the bartender had intentionally gotten the driver of a car drunk so he could slip out and not pay the driver for work done at the bar.

There were no punitive damage awards against a medical providers in their experience as a judge or in their career as a practicing attorney. "We hear over and over that there are a lot of frivolous claims but that certainly isn't the experience that judges in this state would relate to. H 92 does nothing to get at frivolous claims, the only claims are the strongest cases, the ones with the best liability cases, or the largest damage.", he told the committee. Only the horrendously injured people that are really affected by this case, but not the frivolous claims at all as those cases are not being affected by this legislation. Non-economic damages are pain and suffering. If a child is killed, the loss is non-economic as the child is a liability, as you have to feed, clothe and provide medical care to that child. Based on research which seems to be the same as Ms. Tobias, less than 10 cases in excess of $250,000 were found. Frivolous lawsuits get tossed, and nobody gets any money from them. Idaho juries are under control, they are doing the right thing by Idaho companies, and fellow citizens in making decisions on the facts presented to them and not their emotions. He expressed his problem with this legislation is the distrust of the citizen juries of Idaho. He told the committee that he "talks to those individuals, who are smart, conservative and they make good decisions. Even when I lose a case, I can understand why the jury makes that decision and the reasoning they get to after they examine the specific facts and losses of the case, instead of the one size fits all legislation that is before you today."

Adjourn: Senator Darrington noted that the time was passed for this committee meeting and the discussion on H92 would continue on Wednesday. Meeting was adjourned at 3:00 p.m.




DATE: March 5, 2003
TIME: 1:30 pm
PLACE: Room 437
MEMBERS PRESENT: Chairman Darrington, Vice Chairman Lodge, Senators Sorensen, Richardson, Bunderson, Davis, Sweet, Marley, Burkett
MINUTES: Senator Richardson made a motion to approve the minutes of March 3 as written. Second was by Senator Sorensen and the motion carried by a voice vote.
PUBLIC TESTIMONY ON H 92 - TORT REFORM
PRO: Jerry Davis spoke in favor of the bill as executive director of the Idaho Dental Association. He represents about 800 businesses comprising the Association, who gave full support of the bill. They endorse a national liability insurance program through the Assn. and that program provides liability risk management continuing education courses for those people covered under the program and if they attend the courses, they get a premium credit back. It seems that any insurance company who recognizes those who will attempt to avoid litigation and give a credit, has some impact. Even though this bill puts a cap on non-economic damages, they recognize that this is a reasonable bill and would like to see it passed.
CON: Senator Fred Kennedy spoke in opposition to this bill. He has been a licensed attorney in Idaho for almost 40 years, many of those as a trial lawyer. He has struggled with this issue in an attempt to resolve it in a manner that would hold down increasing insurance costs, while preserving the rights of people to seek redress in the courts for damages caused by the negligent, reckless or intentional actions of other people or corporations. When Idaho enacted strict tort reform legislation in 1987, the insurance companies had represented that these changes would hold down the costs of insurance. He told the committee, "It didn't work then and I don't believe it will work now". He asked that if the legislature didn't believe punitive damages should be allowed in cases against doctors, hospitals and other medical provides, then specifically exclude them from the other cases where punitive damages can be awarded, but don't dismantle Idaho's system of justice to the extreme harm of innocent people by passing this legislation which is being sought by insurance companies under the false pretext that it will result in lower insurance premiums.

Senator Sorensen questioned why he felt that the tort reform of 1987 hadn't helped. He answered that the reform in 1987 was to hold down the rising rate of insurance and they have risen dramatically since, because tort reform didn't work for the purpose in which the insurance companies said it was intended to do. In answer to Senator Richardson's question about modifications being justified in the bill, and Senator Kennedy said there is a great concern among people and the legislature that punitive damages have been resulting in a windfall to claimants. He believes that punitive damages and the right to collect them are a necessary part of the judicial system and they can be used to set an example for wrong conduct and we need it in order to convince companies to operate in that fashion. We can protect against a windfall by making a provision that the plaintiff isn't going to get all the damages, and make the State of Idaho the owner, but don't punish the people who deserve the punitive damages, which are a necessary way to show those who do wrong. He doesn't feel that lawyers want to upset the health care system, or go after doctors, hospitals but substantial safeguards can be put in for them, for liability and punitive damages, but the entire legal system doesn't have to be blanketed to offer protection to one small group.

PRO: Julie Taylor , spoke in opposition to the bill as Governmental affairs coordinator for Blue Cross, which is the largest insurance company in the state with 3000 members. She referred to the Price, Waterhouse, Coopers report about the study for American Assn. of Health Plans, The Factors Fueling Rising Healthcare Costs. Beyond general inflation, other forces are driving recent healthcare cost increases, which rose 13.7% in 2001-2002, or 5 billion dollars. The study finds that increased consumer demand, drugs, medical devices, and other medical advances are behind nearly half of the increase. The other half is driven largely by litigation, mandates, and rising provider expenses. Damages awarded in malpractice suits are skyrocketing. The median malpractice award increased 43 % in 2000 to $1 million, according to Jury Verdict Research. A few claims even ran as high as $40 million. Awards are only part of the picture, since the majority of cases never result in a judgment, but cost millions of dollars to defend. The doctors don't ever feel they have done enough for the patient, and might get sued. The threat of litigation is a significant driver in the unnecessary use of treatments which means 4 tests instead of two and several medicines, which not only add to the cost of healthcare, but may actually dilute its quality. Senator Burkett asked if a patient with a large salary would be treated differently as they would have a larger economic damage claim, than the patient that was low-income or a child. Ms. Taylor said that should be left for the physicians themselves to answer.

Senator Davis asked her how much of these claims are in Idaho and she responded that they pay almost a half billion dollars in claims. He also asked how many million dollar verdicts were in Idaho and she said they had no claims of a million dollars against them.

CON: Susan Wilcox spoke in opposition to the bill. She was hit by a drunk driver in March of 2001, lost her husband, William and will be handicapped for the rest of her life because someone decided to make a mistake. She is glad this bill wasn't passed when she had her accident, as she would have more problems, such as enough money to cover all her medical bills, and money to survive on for the rest of her life. She suffers from many disabilities as a result of her accident, and has permanent nerve damage in her left hand and arm and has burned herself seriously when she is cooking, as she has lost feeling in her limbs. Her right shoulder is shattered and permanently damaged so she has limited use of her hand and she has sustained permanent brain damage. She also cannot have children and her voice box was permanently damaged. She asked that this not be allowed to become a law as it should be up to a jury of people, case by case to decide the compensation for a victim, as $250,000 is not enough for the pain and suffering. Her complete story is on file in the committee office.
PRO: Dr. Jim Scheel, Idaho Medical Association spoke in favor of H92 from his experience of 33 years as a physician and he presented a graph showing liability insurance costs that Dr. Ring had prepared, and said his costs mirrored those. He was the most expensive doctor in Jerome in 1970,charging $6.00 an office call, but paying malpractice insurance of $250 to $300 a year. There was almost no malpractice going on, but by the end the 70's that changed and in the early 1980's the costs of liability were $15 to $20,000 per year. In 1987 tort reform went in and within 5 years his costs were back down to $5-6000 a year and he was delivering babies then. By the mid 90's the costs were down ot $3000 and he wasn't delivering babies any more. In 2001 he stopped full-time practice and became a lobbyist in 2002 and since he has been working part-time for Primary Health as a fill-in. Primary Health has 50-60 providers and when someone needs a replacement, he would fill in. He found out that he no longer has insurance, and Primary Health's insurance went up $1 million dollars this year, or 350%, and they don't cover the fill in physicians. So when someone leaves, they don't have anyone to cover. He would like to argue the fact that Mr. McClure made on Monday, that there is no crisis insurance, and would like him to ask the chief of Primary Health if that increase is a crisis, as it certainly is for him because he no longer has any liability.

Senator Sorensen asked why the tort reform didn't help the liability costs. He told her that the level of judgments across the United States are going up against physicians, and that would be his assumption as why it isn't helping.

CON: Mitchell Curtis of Rigby, spoke in opposition of the bill. He was diagnosed with thyroid cancer in 1993, underwent a thyroidectomy, and had radioactive iodine treatments in an attempt to kill the cancer cells. He was in good condition as long as he stayed on his thyroid replacement hormone, which took the place of the missing thyroid but also suppressed the cancer cells. In October of 1998 his doctor changed his prescription and called it into a Rite-Aid Pharmacy. The pharmacist made a gross error and filled the dosage with 1/10th of the dose required. Mr. Curtis's metabolism became slow and he heart rate decreased, so he was cold and sluggish all the time. After 5 consecutive refills, he went to another pharmacy to get his prescription filled and in April, 1999 the error was discovered. This resulted in him having to have additional cancer radiation treatments, but for months they thought he would die. Had the new pharmacist not discovered the error when he did, Mr. Curtis would have soon slipped into a coma and died. Upon investigating they were told that the pharmacists were so busy they didn't even have time for a break. Eventually, Mr. Curtis and his attorney found that Rite Aid was engaged ina nationwide plan intentionally putting profits ahead of public safety. Rite-Aid had reached an agreement with the Washington State Pharmacy Board after 134 complaints of dispensing errors over 3 years, and the chain agreed to pay $50,000 in fines and review its staffing policies. At the same time, Oregon Rite Aid paid $60,000 to resolve a pharmacy board investigations. He was the victim of a huge company making conscious decisions to put profit again of safety with conscious disregard of the consequences of their conduct. This happened in Idaho even without H92. He thinks money talks with these companies, and if H92 is passed, it will enable unscrupulous companies to continue to compromise safety by taking away the deterrence that civil punitive damages provides. He feels the courts should decide these issues on the facts of the case.
PRO: John Eaton, represented the Idaho Building Contractors Assn., who stand in support of this legislation. The building contractors in the last couple of year have experienced as severe increases in the affordability and availability of general liability insurance in Idaho. In some cases there has been a growth of 200% in rates annually. Most companies that provided coverage have left the state, and now the contractors are in a secondary market. Two years ago a contractor paid between $6000 and $8000 for insurance and last year he paid $25,000 and this year it is $75,000. They believe this legislation will provide a more stable marketplace for insurance.
CON: Paul Curtis, an attorney from Ammon, who is the brother of Mitchell and worked on the case with Rite-Aid. He felt it was ironic to appear to gather information before the committee makes a decision on the bill because the bill basically closes out people like Mitch from presenting their information to a jury, because the decision is already made on how much punitive damages apply to his case, without the facts. He wanted to address this issue and felt it was worth driving 8 hours to have 3 minutes to present his testimony that a one size fits all damage award doesn't fit. If his brother had died, he would have had huge economic damages, as he ha high income, and 3 times the punitive damages. Fortunately, for his family and 4 children, he lived and his damages aren't very big and the punitive damage would be lower under this bill, but the conduct was the same and that conduct should have been punished. This bill gives the same damage award regardless of what happened. In Idaho the jury instruction is to award the plaintiff an amount that would punish the defendant and deter them from engaging in similar conduct in the future. He told the committee if you reduce the deterrent, you reduce the amount of damages effect on these people. The inmates in jail are doing time for wrong conduct, but you can't put a business in jail. The way to deter businesses is to award punitive damages and the way to stop high punitive damages is to stop the conduct. The point is that by reducing the punitive damages, the conduct is not being deterred, it is being encouraged as they can continue to commit wilful, malicious, oppressive wanton conduct and gross negligent conduct in conscious disregard for the safety of others, so we want you to reduce our punishment.

Senator Bunderson said a number of other states direct a percentage of punitive damages to public purposes, and not in the domain of the plaintiff and asked Mr. Curtis how he felt about that. Mr. Curtis answered that as a trial attorney it would be great to get those punitive damages and get a percentage of that, but he agreed that modifications might be reasonable, as this bill is not reasonable. Directing the punitive to the public might be reasonable, as sometimes people can't afford attorneys. He felt the only reasonable part of the bill was that the damage standard was clear and convincing standard for damages, but to punish someone should have a higher standard.

PRO: Alex LeBeau representing the Idaho Assn. of Relators., which is a member of the Idaho Liability Reform Coalition, spoke in favor of H92. They believe the proposed amendments will help control the insurance rates over the long term, but aren't sure if it will have immediate effect. The premise of insurance is to spread cost and risk of the needs of a few among the many. If the amount and frequency of damages of individuals expand, costs are passed on to the group. He said it is a curious assumption to claim that laws which serve to control risk have no impact and H92 is designed to reduce the incentive to file claims that he believes have little merit.

He told the committee that the real estate industry is being ravaged by mold claims and some predict that these claims will surpass asbestos matters in terms of case value and volume, as one attorney is quoted "with mold, it is naturally occurring and the supply is endless." Most of these claims re illegitimate because even the Center for Disease Control has stated that the health claims associated with mold are unproven scientifically. They are following the same method as the asbestos claims whereby 80% of the plaintiffs that sued were unimpaired. It is the fear of these statements coupled with the American Trial Lawyers latest initiative to file mold claims that prompted companies like State Farm Insurance to completely suspend the issuance of new homeowners insurance policies in Idaho for a period earlier this year. He urged support of H92 without any changes.

Senator Bunderson mentioned that the Environmental Common Sense committee had a presentation on the mold question as two people had to vacate their home, and the result was the health districts said the word "toxic mold" is a creation of the press, and doesn't exist in their literature and there isn't a health problem with mold. The committee laid the issue rest, and he asked Mr. LeBeau if heavy litigation was moving forward and settlements being made and was told that was correct. Senator Davis asked how many mold jury verdicts are there in Idaho, and was told that there haven't been any jury verdicts yet in Idaho. Senator Burkett asked how many mold cases have resulted in non-economic damages, and Mr. LeBeau said there was one in Texas for $23 million dollars on the allegation they have continuing health problems without actual causality and it was a jury verdict. Senator Sweet if the contractors are having difficulty securing insurance because of the mold issue, and was told that they were aware of that could be.

CON: Pam Dowd passed out some packets describing her situation as one of the youngest breast cancer patients in Idaho, who at age 27 underwent a radical mastectomy. Five years after that she started her "journey through breast reconstruction hell". She has had a muscle transplant, 3 ruptured breast implants, skin grafts and undergone numerous surgeries costing thousands of dollars and must still face more surgeries to clean up the mess left behind. In her packet are stories from other breast implant patients, who would wonder why a surgeon would repeatedly use the same brand of implant if it were so faulty it had to be replaced in so many women, some within a few days. Also, it is a wonder why the manufacturer would continue to supply the implant to these doctors when the procedure is not done properly. This made her understand that when money is the end object, even doctors may lie. She has studied H92 hoping that those who don't have a law degree can understand it but feels it is written in such strong legalese that no ordinary person can understand what rights are being given away with this legislation. Concerning "clear and convincing evidence", she said, "No corporation or others who are responsible through their own negligent acts for damage to others will willingly give over damaging information to the individuals harmed by their acts. This evidence will require a researcher at a great cost per hour. Concerning punitive damages, imposing a limit of $250,000 passes the buck for the health and welfare from the negligent parties directly to the taxpayers of the state. This bill gives non-working women a value of $250,000. Yet if we are disabled through the negligent actions of others, the health care will deplete the family finances. This leaves the taxpayers of Idaho to pick up the tab, and this is wrong. There are barriers to excessive awards and frivolous lawsuits, and the statute of limitations pus many medical malpractice suits out of reach. Judges have the judicial oversight to amend any award that is excessive and appeals and out of court settlements cut down on these. She urged the committee to table this bill and trust the juries of Idaho to do the right thing.
PRO: Jane Gorsuch, represents two organizations, the Associated Logging Contractors of Idaho and Intermountain Forest Association, which are in support of this bill which addresses liability compensation and limitations in Idaho. They feel the bill could be the difference between bankruptcy and solvency in many small business situations, and does not unjustly punish them nor exonerate those guilty of malicious crimes. The liability insurance of the timber and milling business is an important item, as several are small family run bushiness with limited resources. This costly insurance is a necessary item but one that puts great strains on operating budgets. She urged the committee to pass the bill.
CON: Walter Ronk testified against this bill as he has a current lawsuit pending for the loss of his eye and feels the cap for damages is ridiculous. Evidence states that Idaho juries are very competent and are not running away with high damage awards, as they are well informed. This bill is taking away what should be left to the judiciary and judges and juries to hear case by case. He felt these are constitutional issues, as old English common law, the Declaration of Independence, the Federal Constitution and the State of Idaho constitution. In our state constitution it declares the Federal constitution to be the supreme law of the land and there shall not be a law that will go against this constitution. His dreams were taken away that are worth more than $250,00. He would rather have his eye back, as he cannot do the job he was trained for, because of an impact in a car. Now, if he is hit in the face, he could be totally blind for the rest of his life. He feels because of this law, that corporate entities are pushing this with their attorneys
PRO: Brent Olmstead, executive director of the Milk Producers of Idaho, spoke in support as members of the Associations are in favor of this legislation because of four basic key points: it reduces the cap on non-economic charges to $250,000 and indexes that amount for inflation, it places a cap on punitive damages at $250,000 or three times the amount of the compensatory award ­whichever is greater. It places a cap on the size of the bond a defendant must pay in order to appeal a negative decision from the court. Presently a business must pay a bond of 136% of the award. This bill limits that amount to the first $1 million awarded. Finally, the bill repeals the remaining references to "joint and several liability." This is the infamous "deep pockets" theory where one defendant can be held liable for damages caused by others simply because the other parties are unable to pay. The ever increasing cost of providing insurance benefits for employees has created a definite hardship on businesses throughout the state, but particularly those engaged in the commodity markets. This is a great concern for the Milk Producers as they are presently suffering through the lowest prices for their product in over 20 years which places not only the dairy industry in jeopardy, but threatens the entire rural economy of Idaho. House Bill 92 will take an important first step in slowing the increased costs of providing benefits for their hard working employees and they encourage support of it.
CON: Jan Frieze of Boise was signed up to testify, but was unable to come due to her health today, so she sent her comments to the committee as follows: "I have signed up to testify against H92 at the hearing on Wednesday, but am unable to attend at this time. Thank you for reading what I had planned on saying. The general sentiment is as follows: I do believe that Doctors do a lot of good, but some Doctors make mistakes and they do commit malpractice. In my situation, a terrible mistake happened during a routine medical procedure, which resulted in three further surgeries attempting to correct the problem. (She had her colon punctured during a colonoscopy) That was October 23rd, 2002, and I still am unable to perform normal jobs, in taking care of my house and family. Two hundred and fifty thousand dollars would never, ever be enough to compensate for the pain I was put through and still do experience every day of my life. I am almost guaranteed further complications and can't plan for the future. The medical expenses are astronomical and I expect them to continue. Our out of pocket expenses are also very great and unplanned at this time of our lives. I think this bill is unfair and it should be voted against."
CON: Sam Hoaglund is a registered pharmacist, has been an attorney for over 20 years and is an instructor of pharmacy law at the Idaho State College of pharmacy, and spoke for himself. What he finds the most objectionable about this bill is that tit takes the situation where the persons are injured the most or have to suffer their injuries the longest are asked to pay the cost by not getting fair or full compensation for their injuries. Most cases have never reached the caps, and most lawyers income is not affected by this bill as few cases will ever reach these caps, but the ones that do are the ones that are most injured and most severe. He referred to a young lady, age 10, run over by a car and burned very severely over 30% of her body. She is going to be maimed and scarred for the rest of her life, and if that is 75 years , with the $250,000 that works out to be about $3000 or $10 a day to be maimed and scarred for the rest of her life. That would be the impact of this bill andt hat is my main objection. Another concern is the tax issues, Federal law provides that punitive damages are taxable and non-economic damages are taxable, and if you hit this $250,000 with taxes, the highest Federal rate is 38% and the state rate is 8-10%, you are looking at 50% of this award is going to taxes, which has an economic impact to a state and a economic detriment to the person receiving it. He didn't want anyone to think this money is a windfall to the individual, where in fact, about half is a windfall back to the government. Senator Sorensen questioned that the amount of money this young girl would receive were economic damages. He was referring to the non-economic damages of the psychological impact of living with the scarring and pain and what she would get under this bill. Senator Sorensen said that even under today's law, she would get up to $682,000 and if that is divided up that is also a minimum amount. Mr. Hoaglund responded that the economic damages would cover medical and lost wages, where the non-economic damages don't have a receipt, like pain and suffering, humiliations, embarrassment, those mental damages.
PRO: Representative Bob Ring testified as a physician and came to explain the chart that was presented earlier, concerning liability insurance and its relation to the tort reform, and variations in the stock market. The chart (see attached) was prepared by his bookkeeper when he was in the Caldwell Women's Clinic for the last 25 years, to determine what each physician in the clinic paid each year for a standard $1 million-$3 million malpractice policy. In 1983 each paid between $5 and $6000 for a standard malpractice policy. In succeeding years, it capped out in 1987 at $43,000 per year and that did happen despite a booming stock market. Tort reform was enacted in 1987 and in the next 3-4 years, it dropped to around $10,000 despite the 1987 stock market crash.

Senator Lodge asked if he had any big judgments against him. He responded that he had a very large case but it didn't result in his insurance company paying out any money other than cost of his defense. Senator Lodge then asked if his rates went up because of that case, and he said that happened in 1988 and it dropped from $39,000 to $10,000 after that.

Senator Richardson asked if Dr. Ring practiced defensive medicine due to the rates, and was told that "yes, indeed, I did. Approximately 20% or more of his fee went to tests and procedures that did not contribute in the least to well being of the mother or the fetus, but it was to cover his backside in case he got sued."

Senator Burkett referred to the chart and felt it was a reverse mirror image of the stock market and during the boom of 1988, insurance rates were low, until 3 years ago the rates didn't take off again. Dr. Ring responded that he didn't know how many insurance rates are set, but his statements were to say that there is relatively little connection between the malpractice rates and the stock market, but due principally due to the perceived threats of lawsuits.

CON: Wendy Gunn spoke in opposition to this bill, as she was a juror in the case of Robinson v. State Farm in Ada County. She used to be offended when she heard that a jury had handed down a large punitive damage award, and thought that was reckless. She can see now, that after knowing the details presented at a trial, a jury does make a rational and informed decision is such cases. She told the committee that " By passing this bill, you are sending future jurors of this state a message that, while they are required to spend their precious time serving the system, they really are incapable and incompetent to make a decision themselves as to what non-economic damages or punitive damages should be awarded on a case by case basis. Each trial is unique in the details and circumstances and of course, one verdict does NOT fit all. This bill essentially destroys the entire constitutional concept behind allowing a jury trial in civil cases." She now understands that the word "punitive" implies that punishment should be imposed. The jury she sat on handed down a verdict of $9.5 million and anything less would not have punished the defendant, State Farm Insurance Company. After much debate over 3 days, the majority of the jury decided to punish the defendant by approximately 1 day of its profits. This amount sounds obscene but after having the information, it sounded insufficient in the punishment department. The message they were trying to send to all insurance companies was that their actions in this case were improper, outrageous and that as ordinary citizens, they didn't want to find themselves in the victim's shoes one day. If this bill passes, the large companies, including the insurance industry is being sent a message that they can cheat and mistreat people of this state as long as they can afford a slap on the wrist, and are willing to pay this minor fine.

Senator Bunderson asked how much of that settlement was economic and non-economic. She answered that the bulk was punitive damages and the jury discussed that the damage should flow to the public and not to an individual, and said that would have made her decision a lot easier. She was physically sick with the responsibility they had to decide. They had to separate the facts that they were awarding someone this money, or punishing State Farm Insurance. Senator Marley asked if he heard correctly, that the $9.5 million was one day profit for State Farm, and was told that it was actually less than one days profit as it turned out, and it wasn't one day income, but it was the money left over after all the money was set aside to pay the claims they anticipated paying, and all the costs involved. So the intention was one day's PROFIT as the insurance company was reckless in their treatment of the person, and the jury felt that they drug their feet in settling and didn't fulfill their responsibility.

PRO: Pete Skamser, State director of NFIB, representing 7000 business owners in the State of Idaho and urged the committee to send H92 the floor unamended with a do pass. His members are facing problems relating to two areas of insurance. One is the insurance they buy to protect themselves and their assets, and are finding it hard to find companies willing to write policies for businesses and the premiums are oging up and out of fear of large judgments, they tend to want to buy more insurance to protect themselves. On average, the members spend 7% of gross sales on insurances, not counting health insurance, and that is a large amount when their margins are 2% or 3% or 4%, they are spending more for insurance than they make. Only half are able to provide health insurance for their employees, and they cannot afford to have it themselves. The hospital director from Moscow, they testified that their malpractice went from $8000 a month to $50,000 a month.
CON: Bryan Smith, Idaho Falls attorney spoke in opposition to this bill. He is an attorney, but not a member of ITLA or any defense or insurance organizations, but he does represent insurance companies, and businesses and injured people. He is representing himself today to voice opposition to bill. He shared some observations about this legislation. He worked in a medical malpractice defense firm in California. That firm started in 1975 with 9 or 10 lawyers, and by 1994 when he moved back to Idaho, there were 33 lawyer who did mostly malpractice defense. During the 70's the microcap of $250,000 was passed which was supposed to reduce the complaints that was filed against doctors, and it was supposed to encourage settlements. In the Fiscal Impact of this bill it says the bill produces efficiencies and will have no effect on this state. He has sat in meetings with lawyers when people are injured. When there was a cap for general damages, they discussed why would we ever offer the cap on a settlement when that is the most that a person can receive at trial. If that is the outside risk, why would this ever be offered for settlement. The answer is that if that is the outside risk you have no risk besides that. The plaintiff would say, as the lady who had her breasts removed because the doctor put the slide in the wrong slot. The insurance company would say we won't pay more than $250,000 and the lady would say that her breasts were worth more than that, and that was a recipe for trial. They saw more cases go to trial than before the microcap had passed and the result was that it took longer to get to trial, because the legislature didn't appropriate more money for courthouses and judges, it took longer and people said there are too many frivolous lawsuits on trial and we can't get to trial. They need some sort of tort reform, and it becomes a vicious circle. His personal experience has been when you draw arbitrary lines result in the sand, they result in uneven bargaining power, that causes fewer cases to settle (catastrophic cases) and they will get tried more often if H92 passes.

Senator Richardson said that a Health and Welfare report said the tort reform in California really helped the insurance rates and could he enlighten us. He answered that in a case that involved a $250,000 cap or more for general damages, the insurance carriers were much more vigorous about defending those cases and committed more resources to them than they did in the past because their risk was reduced and it did not promote settlement. He didn't know what chart or graph Senator Richardson was referring to, but he knows what he saw personally.

Adjourn: Meeting will be continued on Friday, and those who are signed up will have a chance to give their testimony then. Meeting adjourned at 3:02 p.m.




DATE: March 7, 2003
TIME: 1:30 pm
PLACE: Room 437
MEMBERS PRESENT: Chairman Darrington, Vice Chairman Lodge, Senators Sorensen, Richardson, Bunderson, Davis, Sweet, Marley, Burkett
MINUTES: Senator Bunderson made a motion to accept the minutes of March 5 as written. Second was by Senator Sweet and the motion carried by a voice vote.

GUBERNATORIAL APPOINTMENT

Anna Jane Dressen of St. Maries, Idaho was reappointed to the Commission on Pardons and Parole for a term commencing January 1, 2002 and expiring January 1, 2005.

Ms. Dressen shared with the committee the challenges that the board faces with mentally ill inmates, parole violators, and inmates who don't want parole or refuse programs in order to receive parole They deal with a lack of hearing officers for the facilities in Pocatello and Orofino . The Board goes there on a quarterly basis, but has no hearing officers for those facilities. There is a deep concern about the availability of the programs that are so vital for preparing these people to go back into society. She was pleased that the spouses of the legislators spent time this week with the Board and attended the residential substance abuse program. They sat in with the inmate participants, and they were impressed with the program. She welcomed all the committee to attend these meetings or hearings. She said there are rewards after every session review and a successful parole. When they are discharged, it makes you feel so good as they are on their way to a good life without drugs, or other problems. Recently, they had an inmate interviewing for parole and his family was there in support. His brother was a parolee and told him "If I can do it, you can do it too." When the board asked him how he had stayed clean, he said " Parole is a piece of cake if you stay away from drugs- the rest is easy, and I am going to keep reminding my brother of that." Ms. Dressen said the Board worked very well together and they strive to make good decisions for Idaho, to make it a better and safer place.

Senator Darrington asked how many individuals are in prison that shouldn't be in the first place, and she said there are some, but not many. Senator Richardson told Ms. Dressen how much his wife enjoyed the meeting and was very impressed with the Commission, how courteous they are and what they do. The other members of the commission were in attendance and are Del Ray Holm, Robin Sandy, and executive director, Olivia Craven.

H 92 TORT REFORM - Continuing testimony
PRO: Ray Stark, representing the Boise Chamber of Commerce, spoke in favor of the bill as the cost of power and energy are big and this is an economic development issue for the Chamber. The Chamber's 1700 members feel this will improve the economic outlook in the state. The competition with Utah, Nevada, New Mexico and other surrounding states, and the more positive things that Idaho has, such as tort reform are an advantage to the Boise Chamber.
CON: Wayne Soward, was asked by the Trial Lawyers to answer the insurance questions raised by H 92. He has been in the insurance business since 1964, including being the director of the Idaho Dept. of Insurance from May 1984 to 1987. He is now an insurance litigation consultant for Idaho, Washington and Wyoming. He said there are significant factors affecting Idaho insurance rates and they are financial markets, reinsurance payments, dividends, claims against insured, governmental rate regulation and state minimum surplus requirements. Insurance companies in the 1990's were guilty of underpricing. When the market became better, they needed to increase their premiums. Some companies have gone out of business because of lack of reinsurance payments. Companies made money on underwriting and returned the money to the stockholders. He emphasized that H92 will not stabilize insurance rates and will not cause them to go down. What it will do is remove a deterrent to bad conduct - the existing system works and the $250,000 cap is not a deterrent.

Senator Richardson asked if Tort Reform helped in California and Mr. Soward told the committee that tort reform had little effect, but that Proposition 103 made the companies comply with underwriting and premium increase standards which really helped. H92 won't affect that at all in Idaho. Mr. Soward said that some of the insurance companies are out of control, and are adversely affecting the people of Idaho.

PRO: Jack Lyman, representing Idaho Mining Association and Idaho manufactured Housing told the committee that the two organizations he represents strongly support H92 and ask that it be sent to the floor without amendment.
CON: Jim Petrowski, a labor and employment lawyer in Idaho said he didn't have a stake in punitive damages, but to ask that the committee not lend support to H92 because of the clients he represents. One of his clients is comprised of the 400 plus employees of Wal-Mart, who for 5 years have been trying to force Wal-Mart to pay them for the actual hours they have worked. This issue came because Wal-Mart has the employees clock-out and then keep working for free. There has been some substantial success in the case, but he came today to let the committee know that there is still no change in the conduct of the largest employer in America. This misconduct is still continuing in Wal-Mart stores. The reason there is no change in the conduct, is that their downside is limited to economic damages. The litigation can't result in punitive damages, and without a realistic threat that wrong doers, or that intentional lawbreakers be punished by the court of this state and others, there is no reason for these out-of-state employers to behave within the law. Without the realistic threat of punitive damages, big companies are better off economically violating the law and taking their chances with litigation rather than settle with an employee. This affects Idaho as this conduct reduces the wages of employees. Companies based here care about their reputation and obeying the law. Large out of state corporations have no stake in the welfare of Idaho. They can't be held accountable as there is no downside. As members of the bar, attorneys needs tools to deal with these issues and put them in a position where breaking the law in Idaho doesn't make economic sense.
PRO: Robert Vande Merwe Executive Director of Idaho Health Care Assn. spoke in favor of the bill. He recognized that the bill was not about insurance premiums, but about tort reform. Without H92, it is hard to calculate risks. Things happen in nursing homes, and it is unfair not to help protect nursing homes from increasing lawsuits when Medicare and Medicaid pay less than the actual cost of care, but pay up to 80% of all nursing home costs. He feels the reason that insurance rates have increased dramatically is because of the huge increase in the frequency of lawsuits in the last few years, and because of billion dollar settlements in Florida, Mississippi, Texas and several other states. Even though we haven't had the billion dollar settlements in Idaho, if we don't pass TORT reform, we are a part of the problem, rather than part of the solution, as litigation continues unabated.
CON: Stan Hobson signed up to testify but was out of town today, so submitted his testimony in writing. He is opposed to the legislation on the overriding basis of keeping or minimizing government intrusion in the lives of it's citizens. The judicial system on this subject doesn't appear to be broken in Idaho, as both Mr. McClure and Kerrick attested in their testimonies. There have been large punitive damage awards, but they have been overturned or reduced on appeal. That is how the system is supposed to work and it does. The medical and legal professions need to more closely monitor and take appropriate and definite actions against malpractice and those that bring frivolous lawsuits. Manufacturers, pharmaceutical companies, etc, must also take responsibility for those actions that result in harm, injury, damage or even death to the users of their products when those are shown to be defective. He also expressed concern with the inconsistency of the Legislature. In a bill just passed and signed by the Governor, juries are deemed to be sufficiently intelligent to determine when a death penalty award is appropriate. This bill suggests that juries are not sufficiently intelligent to understand the case before them and come to a conclusion regarding the culpability of a defendant. " Doesn't this say that society values money more than life itself?," he asked. He felt the bill wasn't good for the individual citizen, but good for corporate America.
PRO: Mark Benson submitted a letter as he was signed up for testimony and is out of town for this meeting. He pointed out that liability reform is about more than medical-related claims and insurance costs. He felt H92 is good for Idaho business and Idaho's citizens. (See attached letter #1)
CON: John Keenan, Goicoechea Law Office, is a trial attorney that said it is hard work to help people who are hurt as the present law prohibits large lawsuits. There are fine juries in this state and the jury system will stand up against harsh actions both from governmental and private entities. He asked the committee to consider the founding principles of this country, that you are part of the guardians and the jury is part of the checks and balances. There is also something already in place to take care of excessive verdicts, and that is the conservative State of Idaho. The nature of freedom is the ability to choose and Idaho needs a responsible independent jury system to make these types of decisions.
PRO: Steve Ahrens, President of the Idaho Assn. of Commerce and Industry, which is a charter member of the Idaho Liability Reform Coalition, the sponsor of H92. He focuses on the essential reason the business community supports H92 and that is the problem of costs involved in our tort system, costs that hit businesses of all kinds and sizes right on their bottom line. Several factors drive up tort costs for businesses and they include: Skyrocketing insurance premiums, availability of insurance, as three malpractice carriers left Idaho in the last couple of years, and the cost of defense against lawsuits, even when they are successful, is high. A study of cost was released by Tillinghast-Towers Perrin, that found the cost of the U.S. tort system grew by 14.3% in 2001, the highest single-year percentage increase since 1986. Their study also shows that U.S. tort costs are equivalent to a 5% tax on wages, and that it cost $205 billion in 2001,or an average of $721 per U.S. citizen. In September, 2002 a study by the U.S. Department of Health and Human Services reported that liability premium increases last year averaged 12% in states with caps, and 44% in states without caps. He told the committee that it is clear that reducing costs in the tort system will help control legal costs for Idaho businesses and urged passage of H92.

Senator Davis asked if Idaho was in that category of 12% states with a cap and was told that Idaho is in that category, with a cap on non-economic damages from 1987. Senator Bunderson asked what is happening to the states with the cap and what was happening to those without the cap, and was told that states with caps are better off than those without caps, but there are different kinds of caps and those proposed by H92 would be an improvement.

CON: Ken Kavanagh went through a civil trial with his wife who was seriously and permanently injured due to the irresponsible behavior of a large corporation. Prior to this he couldn't understand how someone who didn't have a case could win a case. What impressed him was how good the system is, and how serious and impartial the jury was. Day after day, he could tell by their faces that what they were doing was important to them. The jury system is a brilliant invention and a good way to resolve any case. If the jury must be able to make a capitol case, why not a judgment in civil case. There is no way to control irresponsible behavior by large corporations with a $250,000 punitive damage judgment. Then there are appeals that come after that. Living with his wife and all her pain has made him realize that this is not a fair amount to be given as a settlement.

Senator Richardson asked why it is that people relate a reluctance on the part of the insurance company to settle, and what was his experience with that. Mr. Kavanagh said that many of the large corporations are self insured. They tried to deal with their insurance company as he and his wife just wanted their medical expenses paid, but the response from the insurance people was that they would get back and let them know what portion they would pay. They were forced to get an attorney and go through a trial, which was hard on his wife and very time-consuming when it could have been solved by the company accepting responsibility and paying for the damages. Senator Richardson asked if he would settle for the quarter of a million in damages and was told that they just wanted the medical bills paid, but once they were forced to get an attorney, everything changed .

PRO: Greg Nelson, Idaho Farm Bureau Federation represents 57,400 members which is over half the farmers in the state, and they support H92. Senator Marley asked how passing this bill would help malpractice insurance. He was told that rural Idaho has trouble keeping medical professionals because of the high insurance rates to protect doctors from malpractice, although there hasn't been a lot of malpractice in Idaho. Senator Richardson asked if farmers were threatened with lawsuits, and was told that they are, as most farmers use burning to prepare their fields, and if smoke becomes a trespass, then there can be punitive damages awarded.

Senator Davis said he fears for farmers as some companies haven't been fair to them. If a farmer is destroyed the economic damages can be great, and how can they be protected against that code of conduct which will damage their crops. Mr. Nelson said that if there is damage to a farmer's crop, then that is an economic ruin to a farmer and this bill doesn't cover that. The damage will be picked up with the current provision in place. Senator Davis said there were many farmers who have had to file Chapter 11 and Chapter 12 because they are financially unable to defend themselves against these large companies. Mr. Nelson said he was not aware of any companies coming into Idaho and putting farmers out of business. Senator Davis gave Mr. Nelson a case to read over relating to this issue.

CON: Christopher Phillips, who is confined to a wheelchair testified against the bill. He was injured 18 years ago in a truck wreck on a forest road built by the Forest Service. He broke his neck and was drowned. In his lawsuit, C. Phillips v U.S. Forest Service he was awarded 3 million dollars for pain and suffering, and loss of life. This judgment was appealed, but the award was upheld, and he felt that the money he received let him stay in his own home, and not be stuck in a nursing home. It certainly wasn't enough to cover the pain he feels every hour of every day, but it made a difference in his lifestyle. He asked how a price tag could be put on quality of life and said he feels there needs to be accountability of individuals and companies. If they know that their liability is limited to just $250,000, they won't be as careful as they should be.
PRO: Bob Seehusen, CEO of the Idaho Medical Association said he just returned from Washington D.C. where he listened to the Senate majority leader, House majority leader and President of the United States saying we need tort reform, we need limits of $250,000 on non-economic damages. Idaho has a fragile health care system, especially in the area of malpractice. He showed a chart that showed the medical malpractice premiums with the enactment of MICRA, and then caps upheld, and the passage of Prop 103. (See attached #2) He answered the question Senator Richardson had asked about Proposition 103. Insurance reform micro law was passed in 1975 and Proposition 103 was years later and it never did work as they wanted it to. The rates were going up and they did flatten with Proposition 103. It was the MICRA bill that helped and Senator Diane Feinstein from California is going to introduce a MICRA bill in the United States Senate. He said that rates have gone up 167% since 1975 and this bill is proposing to stabilize rates. The issue is the cost of litigation and how it affects the patients who need health care. Insurance rates will not go down because of this legislation, but they will stabilize.
CON: Brad Eidam, Idaho Trial Lawyers said he empathizes with the doctors being gouged by insurance rates, but this isn't the answer. In 1976, the $250,000 caps were put in place in California and he passed out a graph with the statistics of California premiums from 1976 to 2001 comparing their premiums with the national premiums. (See attached #3) The source is the National Association of Insurance Commissioners, with the California premiums highlighted in yellow. The rates for California after passage of the caps paralleled the increase until about 1988 when Proposition103, insurance regulation was put into effect. At that time, rates dropped for 3 years in a row as that was part of the law that they had to drop and then they leveled out and stabilized. Caps for 13 years had no effect, until Prop 103 was passed. Punitive damages are taxable and in addition to attorney fees, a plaintiff must declare receipt of punitive damages on income tax returns as ordinary income. On a $500,000 punitive damage verdict the attorney fees would be $150,000 or more and $28,661 would go to the Idaho State Tax Commission, $136,000 to the federal government, and the plaintiff would receive $184,839 of the total verdict. The attorney fees are also taxable income to the attorney with $10,260 to Idaho Tax Commission and $49,422 to the federal government. Therefore this $500,000 punitive damage verdict generates a total of $224,843 in tax revenue to state and federal governments.

Proponents of this legislation have offered no more than a hope that rates might stabilize. "We ask that the information that we have provided for the committee and the written answers to the questions of Mr. McClure be made part of the record and that the committee make their decision on facts, not a hope and a prayer", Mr. Eidam concluded. Senator Darrington so ordered that these be made part of the record.

Senator Marley asked what the difference is between MICRA (Medical Injury Compensation Reform Act) and Proposition 103. Mr. Eidam said that MICRA was the law that put into place in California the $250,000 cap on non-economic damages on medical malpractice claims alone. That was done in 1976. In 1988 Proposition 103 was passed which specifically provided for insurance rate regulation and one of the provisions required that the dividend be returned to policy holders and also that rates in the next 3 years be reduced 20%, and that is why it shows on the chart as going down.

Senator Sweet recognized that there was a lot of debate on tort reform impact and the insurance rates and asked how it can be explained an industry where insurance companies won't offer insurance because of the amount of litigation that is occurring. Mr. Eidam answered that there could be many reasons why insurance companies leave the market that are unrelated to the cost of litigation, for example St. Paul company, a major underwriter, moved out and are in regulatory trouble in Texas. Our information has proved time and time again, that there isn't an availability problem.

CON: Lyn Darrington, Regence Blue Shield of Idaho which represent 265,000 Idahoans who have insurance, spoke in support of any measure which would contribute to any overall health care cost containment and she believes that H92 is one of those measures. She referred to the study by Price, Waterhouse Coopers that Julie Taylor of Blue Cross mentioned, about the cost drivers of health insurance benefits. Five million dollars yearly can be attributed to limitation in the united states. Regence diligently works in the areas that will have a positive and direct impact on the cost of health care benefits to their members, such as disease management and good provider network. They also advocate and support other areas that will help to control overall costs, such as litigation constraints and better access to affordable prescription drugs.

Blue Cross-Blue Shield Assn. released a study of how the national malpractice insurance crisis impacts health care costs and access to benefits. Idaho was identified as a state soon to be in crisis. Overwhelming rising medical malpractice premiums increased costs for the practice of defensive medicine and decreased a patients ability to access care from physicians in high-risk specialties, such as obstetricians.

CON: Jim Harris spoke for Breck Barton, an attorney in Rexburg, and distributed a handout prepared by Mr. Barton. It showed the 20 appellate cases that have gone before the Idaho Supreme Court and Idaho Court of Appeals in the last 10 years, for an average of 2 per year, which deal with punitive damages based on jury verdicts in the state of Idaho. The largest category of these are not tort cases, but are in fact where small businesses sue large businesses for fraud or breach of contract. You have heard a lot the last three meeting days from the business community and if a serious and accurate analysis was done of the history of punitive damages in Idaho, you will find out that the real victims are the small business owners in Idaho, who will lose the ability to sue the foreign giant corporations which victimize small Idaho businesses and are the subject of substantial punitive damages awards in a number of cases.

Also, based on an average of 2 cases a year, we don't have a problem with punitive damages cases in Idaho. There is only one case, which happened to be his case, in excess of a million dollars that was upheld by the Idaho Supreme Court and that was Robinson v State Farm, which was reversed. The plaintiff's attorneys spent $400,000 out of their own money to bring that case to trial. If this bill existed when that case was brought to trial, it would simply not have been filed. If it had not, thousands of people around the country who are insureds of State Farm as well as hundreds in Idaho would not have received refunds plus interest based on fraudulent conduct of that company. Punitive damages are important and should be considered when voting on this bill.

Senator Richardson said that Idaho seems to be following the nation and he wondered when these situations would arrive and if Idaho was ready for them. Mr. Harris told him that Idaho was very conservative-not only the judiciary, but also from the jury box and he felt that there is no problem in Idaho and he didn't see that changing in the next century or two.

Senator Sorensen asked how the refunds were given. She was told that with all the publicity about the case, even including "Dateline" TV program, State Farm decided to review all the cases and make refunds to those insured as a result of publicity, more than the desire to do the right thing.

PRO: Pam Eaton, Idaho Retailers Assn .whose members are of all sizes all over Idaho said this is a big issue to big members, but it is most important to the little businesses, and she asked for support for the bill to be passed.
CON: Marty Durand, legislative council for the America Civil Liberties Union of Idaho spoke in opposition to H92 as she felt that this legislation restricts the fundamental constitutional right, found in the 7th amendment to the US constitution and also in Idaho constitution. Anytime legislation threatens to restrict a constitution right, we must object. This legislation targets juries and their discretion to weigh wrong doing and to access damages. The framers of the constitution decided that juries must have the power to provide justice to those who are harmed. Sometimes the jury is the last defense in a democracy, as unlike elected officials, jurors are not subject to intense lobbying and are not asked to develop or implement public policy, but to look at the specific facts of an individual case, determine who is at fault and award damages to punish wrongdoing and compensate for those injuries. H92 undermines our individual system of justice, as this committee won't hear and evaluate the evidence that a juror would hear. We must trust democracy and trust the constitutionality established jury system and asked the committee to hold H92. Senator Richardson said it had been mentioned that this bill was constitutional, and she replied that if the jury's power was limited, it would be unconstitutional.
PRO: Steve Millard, President of the Idaho Hospital Association, gave three examples of malpractice insurance premiums increase for hospitals, which were Oneida County, up 54% increase; St. Lukes up 265% ; and Gritman, in Moscow up 500%. They went to the insurance companies and asked what was going on. One of the major carriers of malpractice insurance said there are three things causing them to raise the premiums. The first is the severity of the claims, not really the frequency. Secondly, reinsurance costs are up, due to the severity of these claims. Lower investment income to invest in bond market is the last reason. Their investment income went from 7% to 3%. The company in Washington that writes their insurance said it was due to lost ratios that they could not keep afloat. Their Association supports H92 as it now stands.

Senator Burkett asked why the insurance in Moscow went up so much. Mr. Millard responded that the number of companies they have to choose from has decreased dramatically and that was all they could get.

CON: Breck Seinegar, a lawyer representing himself, spoke in opposition to the bill. His dad passed away a couple of weeks ago and told him "It is always good for business to limit liabilities." There is no question you can help business by cutting out liability. In our country there are a lot of people who like to wave the flag, but there are only a few principles in this country who protect a person. First is "One man, One vote" to make sure you have fair representation to make the laws, "Free Speech" insures that you get the right information and "the power of the jury" makes sure that the law is ultimately returned to the jury. In Idaho we can be proud that our constitution says that the right to trial by jury shall be inviolate. The spirit of Idaho's constitution is that when parties have a dispute, juries should decide it. What must be important is that when someone comes to you and tells you that juries are incompetent to do this and our framers were wrong, you would demand the proof of this. That would be the issue and that would be the focus. He told he committee that they had the honor to decide if a case had been made and he hoped they would do a fair job and determine if we can trust our juries.
Summary: David Kerrick told the committee that the Idaho Trial Lawyers have presented all of the statistical evidence throughout the session that they need to make a decision. The proponents claim that insurance rates are going up, but they also admit that this bill won't lower rates, they just hope it will do something someday, someway. If you were in a court of law, and were trying to prove a case, and you told the jury, somehow, someway, someday, this bill might be of benefit to Idaho citizens, do you think the jury would find a preponderance of evidence that you had proven your case. You wouldn't have even gotten your case to a jury as the judge would have thrown it out long ago. We have presented the evidence showing you that there isn't a problem in Idaho courts, they are doing a good job, the juries are conservative and rending common sense verdicts and in some cases the Supreme Court where the judge is second guessing the juries, so there isn't a problem there. There is no promise from the insurance companies or representatives, that the rates will go down, and they are conspicuously absent from the hearing today. There is nothing in the bill that is going to affect insurance rates no matter how many times you hear it. The economy wouldn't benefit from welcoming those businesses and industries into Idaho who won't give compensation to those they wrongfully injure. He asked that the committee do what their first reaction was to this bill, before they were lobbied so heavily, and vote NO.
Summary: Ken McClure, Proponent, told the committee that the legislation brought is from businesses, professionals, small and large organizations, people who are concerned about our litigation in the state. This isn't just for people who are being sued, as they may bring cases and be forced to live by the rules that they are asking others to live by. They haven't brought something which they think is unreasonable or unfair. They think it sets a standard of conduct which they feel all people ought to adhere and it enacts a set of rules which they should be proud to enact. In response to some of the things heard the last 3 days, the concerns are with respect to the cap on non-economic damages. The Idaho Supreme Court says this cap enacted in 1987 on non-economic damages is constitutional, and it says specifically it does not violate an individual's right to a jury trial. That issue should not affect this legislation. The opponents are absolutely convinced that this will not reduce the cost of insurance or make it more available. We believe this will have a positive influence on the availability and afford ability of insurance in Idaho, for several reasons. Common sense says that if insurance is a risk sharing mechanism, if the cost goes down, then the cost in sharing also goes down. According the document of Health and Human Services, states that have caps of this level, have a lower cost of insurance and a lower loss ratio than states without caps. Another document from the insurance institute shows a significant increase in net underwriting loss, which is a result of claims exceeding premiums.

For the year 1997, there was a $1 billion dollar nationwide, loss, 1998, it became $12 billion, in 1999 it was $19 billion and in 2000, it was $27 billion and in 2001 it was $50 billion. In any given year, only a small portion of the assets of insurance companies are invested in equity markets, most are in municipal and government bonds - which have a good rate of stable returns. The last document shows that in California, MICRA has had the effect it was intended to have, that it has caused insurance premiums to grow very flatly compared to the national insurance premium growth. California is not a good place for a defendant to litigate, according to the national judicial organization. If it is a bad place for everything but medical malpractice, it can't be because their laws are strange, or their juries are irrational, it must be because MICRA has had the intended effect. He urged them to notice that Proposition 103 has not been the driving force in keeping the cost of insurance down in California. Proposition 103 places a lid on insurance premiums and has no limitation on policy holder dividends for mutual funds, yet in California, MICRA has shown significant policy holder dividends returned to policyholders of mutual companies as a consequence of the fact that the cost of insuring those claims hasn't risen to the level of the premiums allowed to be charged for them. He said this wasn't viewed as an insurance bill, but they represent people who buy and sell insurance, but most people are concerned about Idaho law. He would appreciate the committee looking at the bill and find that it is appropriate.

MOTION: Senator Bunderson made a motion to send H92 to the floor with a do pass. Second was by Senator Sorensen. Senator Richardson said he had spent hundreds of hours studying this, and he felt he was being forced to make a decisions between two options, both of which are wrong. There isn't a right answer before us today. He has sympathy with the medical community and yet he finds 17% of the doctors in America are self-insured and are able to pull in a pool like we do with the catastrophic fund in Idaho. What he is worried about is the businesses in the state and their legitimate complaints. People are injured and need to be taken care of, he is amazed how the insurance companies hold off if a person has a legitimate complaint, they fight it and hold it back, letting, and then the people are not getting much out of it. He can understand why the insurance companies are holding back because we are in a "sue society". He felt we needed a group smarter than those here today to study this and people from both sides should study the constitutionality of it and give real help as to where we need to go. We should take the decision which helps most of the people and harms the fewest.
Senator Bunderson commented that there are good people on both sides, and it has been his background to cut through and see what is happening on the farm. Businesses are being stressed through outlandish premiums, and we have heard reasons why that is and they bounce all over the table. He has personal knowledge of that, and it is common sense for someone to say "if you cut risk, you cut one of the elements that is driving premiums". This isn't an insurance bill, but it is interesting that people he talks to feel they are paying outlandish costs, and we need to cut the risk.
Senator Burkett called for a substitute motion based on Senator Richardson's comments of the two solutions that won't address the issues of caps or the punitive damages. The question is what is a reasonable level and as a committee we should set the cap. As for the punitive damages, he believes there are other alternatives that could help people in Idaho challenge big corporations and take the funds and use them for the benefit of state government. A new piece of legislation, (an RS), such as Senator Davis's, or another bill is what we should have, which would set caps as we choose, and address the punitive damage issue to bring the funds into state government. We need to take time with it and study it and this bill needs to be held in committee. Second was by Senator Davis. Senator Sorensen said that we have to be blind not to see what is going on around the nation and surely have felt the effects in Idaho of premium rates. This has been studied, analyzed, and looked at since the 70's and 80's. It is obvious that this is the time to go forward and this is the vehicle for it to go forward in and the case has been made and she would vote no on the substitute motion. Senator Davis reflected on the testimony given earlier. In 1997 the agreement was agreed to have the amount of $400,000 in the escalator. If asked if they could get the $250,000 they wanted, the amount would be $426,000. He didn't feel this was a healthy exercise and he didn't have a problem revisiting that amount from time to time. He has an RS on the table of $426,000, the number used earlier. He is concerned about the punitive damage section the most, as there are some companies that aren't of high character. He reminded the committee of recent events where an individual under the influence in Idaho took the lives of a young father and his child. This may be wanton, but to strike this language would allow for the imposition of punitive damages in a DUI case. To put a cap on the compensatory damages is troubling especially with large international companies coming to Idaho. There aren't small businesses anymore, but large companies doing business in Idaho and do we know what about their business code of conduct. He felt he owes it to the people of Idaho to not limit them. He sees it as small Idaho businesses trying to make sure they are properly protected. He previously voted for tort reform, but his mom taught him that "if you are in doubt, don't" and when he looks at H92, he is in doubt, and he won't.

Senator Bunderson pointed out that this bill was a result of a study committee, but the issue is subject to such broad interpretation that any one can say they don't agree, but this had gone through a deliberative process, and the same concerns are being expressed now. It isn't 100% for everyone, but we are 80%, and it is hard to do better than that. He opposes the substitute motion.

Senator Davis requested a roll call vote. The substitute motion is for the bill to be held in committee. Senator Lodge voted no, Sorensen voted no, Senator Richardson voted aye, Senator Bunderson voted no, Senator Davis voted aye, Senator Sweet voted no, Senator Marley voted aye, Senator Burkett voted aye, and Senator Darrington voted aye, breaking the tie vote. The motion failed with a 5-4 vote. The main motion of sending H92 to the floor with a do pass was passed by a voice vote, the chair was not in doubt . H92 will go to the floor with a do pass recommendation.

Adjourn: Meeting was adjourned at 4:10 p.m.




DATE: March 10, 2003
TIME: 1:30 pm
PLACE: Room 437
MEMBERS PRESENT: Chairman Darrington, Vice Chairman Lodge, Senators Sorensen, Richardson, Bunderson, Davis, Sweet, Marley, Burkett
MINUTES: There are no minutes to approve for today, but Chairman Darrington told the committee that the minutes that were approved on Friday, were for March 5, not March 3 as announced. The minutes were correct, but the date was wrong.
COMMITTEE

VOTE:

Anna Jane Dressen of St. Maries, Idaho was reappointed to the Commission on Pardons and Parole for a term commencing January 1, 2002 and expiring January 1, 2005.
MOTION: Senator Lodge made a motion to recommend the re-appointment of Janie Dressen to the full Senate for confirmation. Second was by Senator Sweet and the motion carried by a voice vote.
RS13078 Senator Sweet presented this legislation which is a public safety

amendment to prevent persons convicted of degrees of murder or voluntary manslaughter from shipping, transporting, possessing, or receiving a firearm after final discharge from custody from the Idaho State Board of Correction. It would eliminate the loophole allowing felons who were convicted of such crimes before July 1, 1991 to exercise this right. Based upon their past conduct, such felons have demonstrated their unfitness to be entrusted with firearms. Similar amendments to state laws have been upheld by the federal courts.

MOTION: Senator Marley made a motion to send RS13078 to print. Second was by Senator Lodge and the motion carried by a voice vote.
H214 Bob Aldridge presented this bill that concerns separate property and community property. Since 1867, Idaho has had statutory definitions of Separate Property and Community Property in marriages, in Idaho Code sections 32-903 and 906, which are in the area of the Code for Domestic Relations, Husband and Wife. The separate property definition has not been amended since 1941, and the Community Property definition has not been amended since 1980. The Idaho Probate Code, in its general definitions has two subparts which also define these properties. They parallel the definitions in 32-903 and 906, but are not exactly the same. This bill does two things, which are to change put the definitions of separate and community property in a single location and to add the language, "rents, issues, and profits" wherever the word "income" appears. This will mean that there are no inconsistent definitions in the Code and that the definition of community as to income property reflects the definition used by Idaho courts.
MOTION: Senator Sweet made a motion to send H 214 to the floor with a do pass. Second was by Senator Lodge and the motion carried by a voice vote. Senator Richardson will carry this bill on the Senate floor
H220 Heather Reilly presented this legislation which is "housekeeping" to make Idaho Code Section 19-1601 consistent with Idaho Code Section 19-1114 and 19-1115. In 2000, the Legislature amended these Idaho Code sections removing "transactional immunity" language and replacing it with "use and derivative use immunity" language. When those amendments were made, section 19-1601 (5) was overlooked. Currently, that section requires a court to set aside or dismiss a criminal indictment when a person has been granted immunity from prosecution in connection with his testimony as a witness. Contrarily, pursuant to 19-1114 and 19-1115, if a person testifies under an agreement of immunity with the prosecutor, any answer given, or evidence produced, and any information directly or indirectly derived from the answer or evidence, may not be used against the person in a criminal case, but the person may still be prosecuted. Therefore, these code sections are currently inconsistent.

Senator Burkett asked if a person takes their 5th amendment rights, then what happens, and was told by Ms. Reilly that according to Section 19-1115 when a person invokes the 5th amendment, "all bets are called off".

MOTION: Senator Richardson made a motion to send H220 to the floor with a do pass. Second was by Senator Marley and the motion carried by a voice vote. Senator Lodge will carry this bill on the Senate floor.
H266 Heather Reilly also presented this bill which criminalizes knowingly using the internet by an adult (18 or older) to solicit, seduce, lure, persuade or entice a minor child (under the age of 16) or person defendant believes to be under 16 to engage in any sexual act. The maximum penalty for this felony is 15 years. This also amends the Community Right to Know Act, by requiring a person convicted of Enticing a Minor over the internet to register as a Sex Offender. The Internet Crimes Tax Force is made up of Boise Police Department, Ada County Sheriff, Canyon County Sheriff and the FBI, who all support H266. Also the Law Enforcement Legislative Counsel, the Idaho Association of Counties support this as well.

Idaho currently does not have a law to address this specific form of commun-ication used by adults to target and groom children for sexual purposes. With the boom in technology, computers and the internet are commonly used by children and teens for communication and research. This is also a common form of communication used by predators. Twenty-one other states have laws criminalizing solicitation of minors, including Washington, Utah, Nevada, and California. This bill was modeled after Idaho's current enticement of Children Statute 18-1509.

Communications via the internet are through emails, chat rooms, and instant messaging. Ms. Reilly passed out a handout of an actual conversation between a sexual predator and a detective, posed as a 14 year old girl, in a chat room in November, 2001 in Boise. The detective put his name in as "boredboisegirl14" and almost immediately received an instant message from "sexslaveforu", a 36 year old adult man, who was later prosecuted under Attempted Lewd and Lascivious Conduct.

Being able to carry out this type of investigation with a detective undercover is imperative to prevent an actual child from being solicited and molested. Currently, the charge of attempted L&L is very difficult to prove and has resulted in hung juries on many occasions. Solicitation is happening in Idaho and this bill will help to punish these predators . It also is lowering the age to 16, which is really needed, and is consistent with enticing children laws. Some states have the age at 18 and below.

Senator Burkett asked if the statute was broad enough to apply to a 15-year old who appears to be 30, and was told that if a minor poses as a 30 year old, they would have difficulty prosecuting and it would fall out of statute. This language was added, "or believed to be under the age of sixteen years" to qualify the undercover work of a detective posing as a 14 year old.

Senator Sorensen asked how these people were identified, unless a detective finds them on the internet and was told that siblings often report to parents that they have seen something, or parents see it themselves and report it to the police.

Patrick Calley, Ada County Sheriff's office told the committee that this bill has two purposes: it puts the lock on the children's door, also anyone with internet and children should be alerted, as the goal is to educate children. This bill gives educational background and the authority to investigate as less than 10% of crimes are reported, most are found undercover by sting operations.

Senator Darrington commented on a case in Burley, that involved several states, and foreign countries with the email of pornographic pictures on the internet. Ms. Reilly said that in drafting the bill, they sought to have wording that would protect the children HERE. They would like parents to be aware, to realize that the children who tend to be troubled, or are seeking acceptance are the ones who are likely to get influenced in the chat rooms.

Several of the Senators were interested in interstate jurisdiction within a few miles, as from Clarkson, Washington to Lewiston, Idaho and how that would be charged. Ms. Reilly said in that case it would be federally charged and referred to US attorneys, but could be based on subsection 4, which says that " if the transmission that constitutes the offense originates in Idaho or is received in the state of Idaho."

MOTION: Senator Davis made a motion to send H 266 to the floor with a do pass. Second was by Senator Sorensen and the motion carried by a voice vote. Senator Darrington will carry this bill on the Senate floor.
H 71a Jim Woods, presented this bill for the Department of Correction who is seeking to increase the maximum cost of supervision fee to $40.00. Currently, the monthly Cost of Supervision (C.O.S.) level allowed by Idaho Code for all state probationers and parolees is $35.00 dollars. In addition to the monthly C.O.S., there are other offender paid costs for rehabilitation services, urinalysis testing and electronic monitoring. Each one of these requires separate bookkeeping actions. If the Department is allowed to change the upper limit of monthly Cost of Supervision to $40.00, we can include some of these programs with no additional costs to the offender. Additional benefits to the public would be better drug and alcohol programs; better electronic surveillance and more offenders impacted through shared costs.
An estimated 5,650 probationers and parolees pay into this fund each month which is subject to legislative appropriation. The Department estimates it will collect $2.3 million in FY 2003, and with this increase $2.7 million in FY 2004. This legislation will allow the Department of Correction to charge offenders for drug testing, programming materials, and for electronic monitoring and to deposit the funds into the State Treasury. The agency will be able to comply with a legislative audit finding that all fees collected from offenders, and services paid on behalf of offenders should be reported through the state accounting system.
MOTION: Senator Sweet made a motion to send H 71a to the floor with a do pass. Second was by Senator Lodge and the motion carried by a voice vote. Senator Sweet will carry this bill on the Senate floor.
ADJOURN: Meeting was adjourned at 2:32 p.m.




DATE: March 12, 2003
TIME: 1:30 pm
PLACE: Room 437
MEMBERS PRESENT: Chairman Darrington, Vice Chairman Lodge, Senators Sorensen, Richardson, Bunderson, Davis, Sweet, Marley, Burkett
MINUTES: Senator Sweet made a motion to approve the minutes of March 10 as written. Second was by Senator Richardson and the motion carried by a voice vote.
RS13102 This bill will be sent to the Commerce Committee. It is relating to a study for self-supporting day care centers for State employee's children.
MOTION: Senator Marley made a motion to send RS13102 to print. Second was by Senator Lodge and the motion carried by a voice vote.
RS13081C1 Senator Burkett presented this legislation relating to sex offender notification requiring employers to provide written notice to minor employees and their parents or guardians, if there is a known sex offender employed in the same workplace. This is the bill that was changed to address the concerns of the committee when it was presented before. It is now clarified that the employer is required to notify minor employees only if they have knowledge and this language was found to be best placed in the Juvenile Protection Act.

Senator Bunderson asked what the penalty was for someone who failed to notify the minor employees. Senator Burkett responded that this legislation requires the duty to do so, if they don't notify then they are liable. There is no criminal or civil penalty, but there was something to warrant action.

Senator Davis asked if they had gotten support of the business community and was told that they ran it by Idaho Association of Commerce and Industry and they had no recommendation to narrow it any further. However, they haven't given support to it at this point. Senator Darrington made it clear that if this bill is printed, it won't be heard this year. Senator Sweet asked if it had been brought to the attention of the National Federation of Idaho Businesses, and was told that they just wanted the bill to circulate in a wider area.

MOTION: Senator Marley made a motion to send RS 13081C1. Second was by Senator Richardson and the motion carried by a voice vote.
HJM 4 Representative Barrett presented this House Joint Memorial which urges the Idaho delegation in the United States Congress to sponsor and support legislation to create a new circuit of the United States Court of Appeals for better regional representation, wherein the judges thereof administer justice fairly, impartially and free from bias and distortion of the Constitution of the United States, and to place Idaho in this new circuit. She said there is no fiscal impact. There is already support underway to create a 12th circuit that would include Idaho, and is supported by Senators Larry Craig and Mike Crapo. Rep. Barrett told the committee that the decisions of the 9th circuit are more frequently overturned by the US Supreme Court than any other circuit in the country, for about 80-90% of the time. Senator Bunderson asked about the workload between the 9th circuit and others and was told that the 9th circuit has too many judges at 28 where the others average 12.6. They have a huge backlog of appeals which account for one-fourth of the pending appeals nationwide. The appeals filed there are more than double that of other circuits.

Senator Marley asked if there was a population trigger that determined the dividing of a circuit and what the cost of creating a circuit would be. Representative Barrett said there would be a cost, but she didn't know how it would be split up, as she felt that the Congressmen would make that decision. Her intent was just to support what the national people are trying to do.

Senator Davis told a little history of the movement to split the 9th circuit and said that the first time Congress entertained the idea, he was working there. The problem was which states to put with California, and those judges that were next in line to be a chief judge discouraged the split. There was discussion about where the head of the circuit should be, and Senator Feinstein of California fought it being anywhere else. Many judges favor a split, as do Idaho's two circuit judges. He felt the 9th circuit was very responsible, and didn't really know why their decisions are overturned so often. If the Supreme Court overturns them 80-90% of the time, wouldn't you wonder what is going on? He wasn't in favor of the sharp language in the bill, but he would be voting for it.

MOTION: Senator Richardson made a motion to send HJM 4 to the floor with a do pass. Second was by Senator Sweet. Senator Burkett said that we should approach what is best for Idaho and the 9th circuit definitely has a political slant, as the others do. From his limited experience with other circuits, he felt the 9th circuit is recognized as the most efficient, fair and impartial of the circuits. But to say that they are prejudice, bias and partial is not really good for Idaho to be putting out that message and he can't support this bill for that reason, even though the 9th circuit is big and needs to be split.

Senator Sweet felt " two things in recent times tell me that the 9th circuit regarding our 2nd amendment decision was without scholarly merit and with the recent ruling on the Pledge of Allegiance constitutes nothing less than an assault on our Bill of Rights. The language needs to be in there strongly to express our concerns, because that's how our system of government works."

Senator Lodge said this legislation, for the division of Idaho from the 9th circuit, has been at the top of her agenda for some time, but felt that the language in the memorial was very harsh, and would be received better in the 9th circuit if it were not quite so harsh. She said she would support it for the concept.

The motion carried by a voice vote.

H171 Caralee Lambert presented this bill from Legislative Services, which is a result of many hours of work by Representative Debbie Field, Senator Darrington, Ada County Prosecutors, State Appellate Public Defender, Attorney General's office Ms. Lambert, in conjunction with the other death penalty bill.

House Bill 171 is designed to bring Idaho's death penalty law into line with the recent Atkins v. Virginia decision, in which the United States Supreme Court held that the execution of a mentally retarded person constitutes "cruel and unusual punishment" and is therefore prohibited by the Eighth Amendment.

Pursuant to this legislation, the issue of mental retardation would be raised, and determined by the court in a pretrial hearing. This legislation would also set a fixed life term if the jury unanimously finds beyond a reasonable doubt any statutory aggravating circumstances. County government will remain responsible for costs associated with indigent defense. It is not anticipated that there will be additional costs because it is the current standard of practice to investigate, evaluate, and hire expert witnesses when competency is an issue in a capital case.

Senator Darrington mentioned that this is just like the other death penalty legislation, except that a pre-trial hearing held to determine whether a person is mentally retarded would be by a judge, rather than a jury. Also those who are determined to be mentally retarded will not receive the death sentence. The other proceedings with the jury after the finding of guilt would proceed the same as the other bill. Ms. Lambert said that is correct, that it sets up an additional procedure, determined by the committee to be done pre-trial by a judge as opposed to having it done post-trial by a jury. There were a number of reasons for this; a majority of other states do it pretrial by a judge. There was some concern for victim's families to have them go through a whole trial and then at the end determine that the defendant was mentally retarded and wouldn't receive the death penalty.

Senator Richardson asked if any person who commits murder must be mentally ill, that no sane person would do this and could this be interpreted in this legislation? Ms. Lambert said that "Idaho hasn't got that defense in the state, but we have competency. If you can't stand trial, then you wouldn't be liable for this." She referred to the definition which is: "Mentally retarded" means significantly subaverage general intellectual functioning that is accompanied by significant limitations in adaptive functioning in at least two of the following social skill areas: communication, self-care, home living, social or interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health and safety. The onset of significant subaverage general intelligence functioning, which means an intelligence quota (IQ) of 70 or below, and significant limitations in adaptive functioning must occur before age eighteen years.

Senator Bunderson asked if it is hard to tell the difference between someone who is mentally ill or someone who is under the influence of a chemical substance. Could a person under the influence, meet any of the requirements for being mentally retarded? Ms. Lambert said they would have to be mentally retarded in the first place, fail the IQ test by age 18 and then be under the influence. She said this applies to those who cannot make their own way in life, and the definition is narrow enough to not apply to those who are under an influence, or an older person who may have Alzheimer and would kill someone. The decision was made so that if someone is claiming to be mentally retarded they had to show evidence that prior to the event, they were declared to be mentally retarded.

Senator Marley asked if this bill has only to do with Mental Retardation and not Mental Illness. He also asked about the DSM-4, the Diagnostic and Statistical Manual of Mental Disorders 4th edition that was referred to earlier. Ms. Lambert said that the US Supreme Court made the distinctions, they didn't look at mental illness, but only at mental retardation that has the onset before the age of 18, so that is broader than what this bill is attempting to do, which is bring Idaho into compliance with the Atkins decision.

Roger Bourne, of the Ada County Prosecuting Attorneys office spoke to the committee about the Atkins v. Virginia decision. All this came about as Atkins committed a terrible murder but was then found to be mentally retarded and nonetheless received the death penalty. Last summer, the US Supreme Court said that because he is mentally retarded he can't receive the death penalty under the US constitution and directed the states that those who were defined as mentally retarded could not receive the death penalty. It was left it up to the states to give their own definition, so in drafting this legislation, the definition came from the DSM-4 manual used by the mental health experts. The Ada County Prosecutors Association is in favor of this legislation, as it brings Idaho into compliance and it gives a workable definition and procedure so that the judges can apply it when they have to make the decision before they hear the case, if the person is mentally retarded.

Molly Huskey, State Appellate Public Defender told the committee that their office is in favor of the bill. As part of the committee, she said they did select the definition of mental retardation from the DSM-4 so the judges throughout the state would have one source that they could go to be as uniform and consistent as possible. The reason the DSM uses the age of 18, is that it is a condition that an individual is born with, it isn't a result of a car accident, or a different disease process, such as Alzheimers. Therefore, it has to manifest before age 18, but that doesn't mean it has to be diagnosed. There are lots of ways it can manifest, and can be found by looking at school records, etc. Also, mental retardation is not mental illness. Mental illness is a condition that certainly can be a lifelong condition, but in some conditions can be alleviated by medication or by rehabilitation. Mental retardation is a condition that never changes as there are no medications that will heighten or increase their IQ, but they can learn life skills and be involved in the community. Mental retardation cannot be invoked by excessive drug use or chemical or substance use. There are some chemical substances that can induce mental illness like symptoms, one of which is methamphetamine, but this is different than mentally retarded which onsets before age 18. This bill parallels with two statutes already in place, one that if an individual is not competent, they cannot stand trial and cannot be executed. It also combines protections of the notice given and the way the examination is done.

Marty Durand, legislative counsel for American Civil Liberties Union of Idaho, supported a similar bill in the House. But the Supreme Court has spoken and the job of the legislature is to bring Idaho into compliance. They feel the death penalty is not appropriate because the mentally retarded are more likely to confess to a crime they didn't commit and they tend to hide their disability from others- even an attorney who could help their case. They are more likely to receive the death penalty because they have difficulties in communication, and understanding their legal rights and legal proceedings. The ACLU applauds the Supreme Court decision, and they applaud the legislative efforts to put the Atkins decision in effect, but they do have a problem with this bill as it doesn't address post-conviction relief and those that are currently on death row, who may be mentally retarded.

Senator Darrington asked Ms. Durand if she doubts that a person on death row could file for a relief under Atkins and if a judge determined mental retardation that relief would be granted. She ragreed that the Atkins decision would prohibit their execution, but the bill would be stronger if this language was in the bill.

LaMont Anderson, Deputy Attorney General, capital litigation unit, spoke in favor of the bill. He opposed the death penalty bill last year, because it didn't have an exception for the Atkins decision. On the question of retro-activity, the last paragraph of the bill covers that, by saying "Any remedy available to post-conviction procedure or habeas corpus shall be pursued according to the procedures and time limits set forth in section 19-2719, Idaho Code." This section is the body of legislation that deals with post-convictions in capital cases. Inmates on death row are not permitted to file a claim in excess of petition and litigate it. There is a provision that says new laws are not to be retroactively applied to those crimes that have already been committed. There may be a question if that is going to pass constitutional muster, and will be addressed by the Idaho Supreme Court.

There is an individual on death row, Max Hoffman, who has filed a successful petition based on the Atkins decision and the state has filed a motion for summary dismissal of that particular petition. It is their position that mental retardation was known or could have been known at the time he filed his first post-conviction petition. The basis is that the age of onset has to be age 18, and he should have known when he was over that age if he was mentally retarded.

MOTION: Senator Sorensen made a motion to send H171 to the floor with a do pass. Second was by Senator Lodge and the motion carried by a voice vote. Senator Sorensen commented that this was well thought out and a lot of time was taken to make sure that all the concerns and the potential problems have been identified and resolved. This is the right thing to do.
ADJOURN: Meeting adjourned at 2:32 p.m.




DATE: March 14, 2003
TIME: 1:30 pm
PLACE: Room 437
MEMBERS PRESENT: Chairman Darrington, Vice Chairman Lodge, Senators Sorensen, Richardson, Bunderson, Sweet, Burkett
MEMBERS

EXCUSED:

Senator Davis, Senator Marley
MINUTES: Senator Richardson made a motion to approve the minutes of March 12 as written. Second was by Senator Bunderson and the motion carried by a voice vote.
RS1392C1 Senator Bunderson introduced this legislation which makes clear that the State Division of Building Safety has the building code enforcement responsibility (plan review, permitting and inspection) for all building facilities constructed or used by state agencies including those owned, constructed or financed by the Idaho State Building Authority. It also provides that the Division of Building Safety and the Fire Marshal will work with affected local government agencies and will take into consideration their comments and ordinances and will notify them of actions taken and provide them with final copies of building plans. Questions on this arose at a meeting of Idaho Cities, and these have been addressed and agreement reached. There was a hearing held in the State Affairs office earlier and Senator Bunderson asked that this be approved and sent to the 2nd reading calendar on the floor.

Senator Sorensen, co-sponsor of the bill said there has been much discussion and input on this to resolve a testy issue of State Building Authority.

MOTION: Senator Sorensen made a motion to send RS13192C1 to print and also to the floor with a do pass. Second was by Senator Bunderson and the motion carried by a voice vote.
H169a Representative Tom Trail presented this bill which amends Idaho Code18-6101 regarding rape by clarifying the act of rape, particularly in instances where the act is perpetrated on females who are limited in their ability to make reasonable consent. Law enforcement and prosecution officers have found it difficult to build effective prosecution cases under the existing code, consequently many incidents are not prosecuted. It is believed that these proposed changes will improve the ability to prosecute as well as increase the level of deterrence to individuals to commit rape on women whose will to resist may be impaired.

Senator Darrington mentioned that the Health and Welfare Committee in their meeting this morning considered a House Bill that places GHB and its derivatives on Schedule 1, which makes them unavailable to the public. This was done by the Board of Pharmacy and there will be only one supplier for in the United States, a firm in St. Louis, Missouri for only the most extremely needy medical purposes. Representative Trail said that the drug "Ecstacy" and the other derivatives of it are available in the underground market, which is hard to control. " Regardless of how we try to prohibit it, it will still be available on the market", he commented.

Gary Young, former Representative testified in favor of this bill, as he is working with the Law enforcement as a volunteer chaplain. What prompted this bill was that the police chief in Moscow and others came to him asking for help in prosecuting acquaintance rape, date rape, and those involving drugs or alcohol, that renders females with less than the ability of resisting or giving consent. The legislation is patterned after surrounding states, and was kept with Western thinking. Alcohol will never be illegal, and will always contribute to these kinds of crimes occurring, but if GHB becomes illegal, the result of this legislation will be that fewer of these crimes will occur. Many young men have the idea that they have a free pass and are beyond prosecution when they rape a young woman using these methods. Prosecutors agree that it is very difficult to build a rape case around these circumstances.

Senator Burkett asked what states were looked at and was told that the states were California, Wyoming, Oregon and Washington, with Wyoming and Oregon being the ones patterned after the most. Senator Burkett asked if these states have an unconscious feature statute in them. Representative Young said they all have a statute of being not in a conscious state.

Senator Sorensen asked what specifically was in the law before, that held back from prosecuting these cases. Mr. Young responded that he was talking about 18-6101 as it stands now, which is driven by resistance as opposed to consent and this takes a little different view in rape cases and relative to the ability of the victim being in the state of mind to consent to the act, rather than have the act perpetrated against them. At the present time, the language can be molded into different things, but by the wording in the statute a person cannot be a victim of rape.

Senator Richardson asked what constitutes "physically resisting", and was told that this is another part of the problem of prosecution to define and use to convince the jury. When asked what is his definition of resistance, Mr. Young replied that just "saying no" is resistance and that the current law talks about physical resistance which needs to be changed. If a victim does everything they can, and the perpetrator still commits the act, there should be a charge that can be prosecuted. There have been several of these circumstances since the one that will be heard by the committee today, that have gone unprosecuted, and there needs to be a change in code for them to be prosecuted.

Senator Darrington asked if he could think of two young adults getting drunk and having sex and not having it charged as rape. Mr. Young said this happens all the time, but when the girl finds out she is pregnant, then she says it was rape. This law won't change that because they have to go back and access if it was by mutual consent or rape, and they will have to do that with this bill as well.

Angie Fisch, testified in favor of this bill as a victim of rape. She is a senior at the University of Idaho, and has completed the court proceedings in an attempt to convict her offender. The problem is that she was let down by the way the law is worded and defined. Her freshman year, she attended a party at a friend's apartment. She was handed a drink by her perpetrator, whom she knew and the rest of the night was a blur with recollections of her coming in and out of consciousness while being raped. She remembers not being able to move and feeling powerless. She also was confused and scared. This was a horrid experience that nobody could understand unless they were a victim. After much convincing by her friends, she decided to report this incident, even though telling her story to her parents as well as the police was the most emotionally draining experience of her life, and yet it was just the beginning of a long, drawn out process.

She believed that her perpetrator would be brought to justice, as he admitted to the occurrence and also admitted that she was helpless and unconscious. The evidence was overwhelming and yet when the verdict was read, the rapist was let free as the jury could not convict him without an unreasonable doubt due to the way the law is written. The jury poll showed that they believed he was guilty, they just couldn't convict him.

This is one reason that she has decided to share her story. Her family was torn apart as they never thought this would happen to anyone they know and love. She felt that citizens should be protected against rapists and action should be taken to amend the rape laws so the perpetrators can be prosecuted, be put away and not be walking the streets .

Senator Darrington asked if GHB was used in her case, and was told that it was used but couldn't be traced as it runs out of the system so quickly, but all the makings for GHB were found in the rapist's apartment. He had given Ms. Fisch a mixed alcoholic drink that he prepared himself. There is no taste or color, so it is very easy to put it in a glass of any liquid.

Senator Richardson asked if the perpetrator was found innocent, and if the decision was based on her consent. Ms. Fisch said he had admitted that she was saying no and that she was lying there helplessly, but it was all about the wording of the law referring to consciousness.

Senator Bunderson asked if the perpetrator knowingly prepared the drink, gave it to her and she consumed it, so he had his full capacity and she did not. She replied that was correct. He asked in what setting did this frequently occur, and she said that they were at a party in an apartment, it wouldn't have to be at a fraternity, or even a party, it could be with just a few people or with one guy.

Senator Burkett asked who the prosecutor was told that it was Michelle Evans who works for Bill Thompson, Latah County Prosecutor.

Dan Bruce, Moscow Police Department, who also does law enforcement on the University of Idaho campus, spoke in support of H169 and the amendments to the Idaho rape statute. He has been with the Moscow Police Department 15 ½ years. When most people think of rape, they think of a stranger wearing a mask, holding a knife, who sneaks through the bedroom window or drags a girl into the bushes. In Moscow, on the U of I campus, they don't get cases like this, but they do get cases of acquaintance or date rapes. The current statute works well for the stranger type cases, but is ineffective for the majority of date rape cases. His experience is there is no justice for the majority of rape cases investigated in Moscow because of the wording and elements of the current statute. Angi Fisch's case is a good example. She reported her rape, and felt she had been given the date rape drug. She knew the people at the party she attended and didn't feel she was intoxicated, until she was given a drink by the man who raped her. She woke up in a dreamlike and confused state, with the suspect on top of her, raping her. He admitted that when she was awake, she was saying "no-no" but when she was unconscious, she did not resist him. Her memories of the rest of the night were very distorted and fragmented.

To prosecute, the State had to prove that Angie was unconscious of the nature of the act and that this was known to the accused at the time of the incident. In the jury trial of 2001, he was found not guilty. The jury found that Angie Fisch was raped, but could not find the suspect guilty under Idaho law. The language, "unconscious of the nature of the act", and "known to the accused" were the major obstacles of the jury. Seven to ten girls come into Moscow police each year with a similar incident, but wording of Idaho law won't let them prosecute their rapists. He would support changes to the current statute to define "unconscious of the nature of the act", which would give guidelines and have a positive impact. Also, "known to the accused" would be deleted, and justice to victims would be served.

Don Lazzarini, a resource specialist with the U of I Dean of Students Office, spoke in favor of the bill, saying "if there was a better law, there could be prosecution for these crimes." It will really help prosecutors as there hasn't been a date rape prosecuted in Latah County in over 10 years. The University of Idaho is no different than Boise State, or Idaho State, in that 25% experience a completed sexual assault. There are 30 victims per 1000 women, and it is not enough to encourage them to come forth if the law won't allow suspects to be charged with rape.

Senator Darrington asked why the word "asleep" is included in the amendment. Detective Bruce said it was the same thing, as the female is not able to give consent, participate, or have knowledge of the event.

Senator Sweet asked if there was the right language to get this bill where these offenders can be prosecuted, and asked if they had worked with the prosecutors. Mr. Lazzarini said they know it occurs in a campus community but it is difficult to find a prosecutor to take a date-rape case.

Heather Reilly spoke in support of H169a if proposed amendments are accepted by this Committee. She indicated that Bill von Tagen of the Attorney General's office was also in support of the amendments and H169a if amended. The proposed amendments were at IPAA and the AG's suggestion, as the current language in the bill is confusing. One of the proposed amendments was to remove Subsection (9). However, upon further discussion the IPAA and AG agree that subsection (9) be put back in the bill. As to questions regarding defining "unconscious", it may be helpful to define "unconscious" in the statute as generally the court and state are not allowed to instruct a jury as to what it means to be "aware or cognizant".

Senator Burkett asked why the term resistance was changed, and Ms. Reilly responded that there are some cases of resistance and the jury is going to want to know how the person resisted and both subsections would be helpful there.

Dr. Cynthia Brownsmith urged the committee to vote in support of the bill, on behalf of the Idaho Psychological Assn. This bill broadens the present law to include victims who are incapable of resisting due to mental illness, mental deficiency, developmental disability or unconsciousness, or who are not cognizant, due to an intoxicating, narcotic or anesthetic substance. This would allow victims to overcome helplessness, regain control and to return to productive, healthy lives.

MOTION: Senator Sorensen made the motion to move H169a to the 14th order for amendment. Second was by Senator Richardson.
DISCUSSION: Senator Burkett would like to see the engrossed bill with the amendments. He suggested that the bill be held until the next Monday, March 17, to see that.
SUBSTITUTE

MOTION:

Senator Burkett made a substitute motion to hold the bill indefinitely at the call of the chairman. Second was by Senator Bunderson. A roll call vote was taken with 4 nay and 3 aye and the motion failed. Senator Bunderson made an amended substitute motion to bring the bill back in a week. Motion failed for lack of a second. Original motion carried and H169a went to the floor in the 14th order for amendment.
ADJOURN: Meeting adjourned at 3:20 p.m.




DATE: March 17, 2003
TIME: 1:30 pm
PLACE: Room 437
MEMBERS PRESENT: Chairman Darrington, Vice Chairman Lodge, Senators Richardson, Bunderson, Sweet, Burkett
MEMBERS

EXCUSED:

Senator Davis, Senator Sorensen, Senator Marley
MINUTES: Senator Sweet made a motion to accept the minutes of March 7 as written. Second was by Senator Richardson and the motion carried by a voice vote.
S1138 Senator Bunderson said this bill was brought about as a result of a death in an amateur boxing event. This legislation bans the promotion of or participation in Badman, Toughman, ultimate fighting and martial arts events, whether amateur or professional, with certain exceptions. Violators will be guilty of a felony.

Throughout the nation, these "events" often result in serious injury and death of some participants. In 2002 a participant in one of these events in Pocatello was killed. Prohibiting such events is sound public policy.

There will be costs of enforcement of criminal provision and civil enforcement provision. The legislation will also remove potential ambiguities in state law which may be misconstrued to suggest that the state may have liability for injury to participants thereby saving the state many legal expenses.

Senator Bunderson suggested that the best plan of action would be for the Attorney general participate in a task force that would work on the legislation and report back next year with a final version. John Vestal, of the Athletic Commission is in full support of this plan, and would welcome any comments from interested parties.

Senator Darrington told the committee that the chair would hold S1138 and no action would be taken on the bill at this time.
H123 Representative Allen Andersen presented this bill which is proposed to change the maximum possible prison sentence for the crime of incest from 10 years to 25 years. It is hard to determine a cost to the state as this is determined by the number of crimes committed, convictions and sentencing. This legislation does not establish a minimum legislation, remove any discretion judges may need when addressing persons convicted of this crime. Under current Idaho law, rape is treated much more severely than incest, however. As with rape, incest can be just as devastating and destructive. In the opinion of the mental health clinicians and counselors, there is as much or more trauma associated with incest as with rape and the sentences should reflect that. If the purpose of a sentence is to act as a deterrent, then the increase in the penalty is warranted. If the sentence is to punish, then the increase from 10 to 25 years is appropriate for this crime.

Senator Bunderson asked what the motivation was to bring this legislation forward, and was told that he was approached by the victim of incest and asked if he could help increase the penalty of the crime. Others also urged for a stronger penalty. They felt that keeping the offender in prison longer would help keep them away from the family for longer time.

Representative Elaine Smith, co-sponsor of the bill spoke to the committee and said the legislation had only 1 dissenting vote in the House committee, as that person wanted a harsher penalty. She said the reason the sexual abuse wasn't reported earlier, was that the family denied that it was happening, which is very common. This bill changes the maximum sentencing but is not a mandatory sentence.
Gloria Curl Myler, an incest victim spoke to the committee of her experiences of being sexually abused by her father from age 3 to age 18. At age 18, she was locked in a box and did not see her mother for 25 years. She did not go to school, did not go outside much at all, and was kept in bondage by her father. He molested her as a child and as an adult she was raped repeatedly by her father, who also fathered 3 of her children. Last December her father was found guilty of the crime of incest and sentenced to the maximum penalty of 10 years in prison. In the Idaho State Journal, Bannock County Prosecutor Dennis Wilkinson was quoted as saying "I lumped all of the charges together and called it incest." In the same newspaper, dated February 1, a man was awaiting sentencing in Bannock county for inappropriately touching an 8-year old. The maximum penalty for this single offense involving a non-family member is 15 years.

She told the committee that she could "guarantee from the amount of information she has received with other women since her story came out, that there are many women today who suffered from incest in their home as little girls. Their father's were important men in their communities, religious leaders, professional men, but they were men who sexually abused their daughters, as the threat of a 1-year maximum sentence is but a slap on the hand." She emphasized that RAPE IS RAPE, whether the victim is a family member or not, to force another person against their will constitutes the crime of rape as defined in Idaho Code Section 18-6101. Sentencing should be the same for an individual convicted of either rape or incest. Based upon her personal experiences, she would request a greater punishment be given in cases of incest, regardless of the age of the victim.

Senator Richardson asked why her father didn't get locked up for breaking the law. She answered that they would only charge him for rape in Bannock County, and it was cheaper to charge him for incest. She understands now, why more victims don't come forward. Then Senator Richardson asked about her children. She said she has two daughters and a son, who also got molested by her father. They were all locked in the box and her son didn't walk until he was 5 years old. Her oldest is mentally handicapped, but the other two are functioning great as young adults. She has a son on a mission in Hawaii. Senator Richardson commended her for her courage to come today and tell her story.

Senator Bunderson asked why the prosecutors didn't charge kidnapping and was told that she was 18 and it happened in Missouri where her father took her. The prosecutor there said most cases are plea bargained or there are no charges filed. Senator Bunderson then asked what sentence the judge wanted to give. Mrs. Myler answered that he said if he was able to, by law, he would have sentenced her father to life in prison, but he could only sentence him to 10 years indeterminate, which means he will be released after 10 years. Senator Burkett asked if there was a trial and she responded that there was and it took the jury only 45 minutes to convict him.

Sue Fullmer, also testified in favor of H123 and has spent many hours with Mrs. Myler since the account of her abuse has been on local radio, television and in the newspapers. She told the committee that this was the most unbelievable story they would even hear, and yet it is very true. Mrs. Fullmer also had two daughters who were victims of incest by a foster brother, who was later adopted, from the time they were 3 until they were 15, and she was not aware of the situation. "The suffering of the victim is in no way minimized because the offender of the crime was a family member", she said, "To the contrary, it is intensified! How difficult it would be to have to face the offender in your own home time and time again, where you should be protected against evil. Due to threats, shame, or fear of whatever force was used against them, the victim often remains silent and the abuse continues. When the victim finally is able to tell the story and the rapist is arrested, justice is certainly not served with a 10-year maximum sentence." She said this bill is a beginning to address a crime that has long been overlooked.

Senator Darrington asked her if she was happy with the way the case was prosecuted and she said she was very unhappy with the prosecution of the case and that the punishment he received was not a deterrent for the crime he committed.

Senator Bunderson asked if the judge wanted to give a different sentence. She told the committee that the judge told the offender if he were able, the youth would spend the rest of his life in jail, but he could only be sentenced to 10 years indeterminate, and would probably serve this time and be released.

Senator Burkett asked Ms. Fullmer if the case went to trial and was told that there was a jury trial and it only took the jury 45 minutes to render a verdict.

Senator Richardson asked if cases of incest are difficult to prove. Ms. Fullmer said that this is something people don't want to talk about. She felt that she was a good mother and yet this happened in her own home. It is very difficult to prove because usually the wife of the abuser doesn't want to recognize that this is going on, even when it is her children that are the victims. She pointed out that Gloria's father abused her for over 40 years, fathered 3 children and all he was sentenced to was 10 years.

Senator Burkett said he felt there were situations where prosecutors think it is easier to prove incest, and even though there is rape, or Lewd and Lascivious (L&L), they go forward with incest. He felt that this legislation didn't quite fit as the statute refers to consensual sex and yet those testifying have referred to incest/rape, and it is just that - rape. Representative Anderson told him that in preparing this legislation, they visited with a District Judge to get his perspective who felt that the penalty should be increased and it all should be addressed. The judge was concerned about keeping the flexibility, particularly with siblings who might be engaged in sexual relations which could be dealt with as a lesser penalty. Also they had the prosecuting attorneys Association review it , who didn't see a need for it, but said they wouldn't oppose it. Those are the reasons for the approach taken with this bill.

MOTION: Senator Bunderson made a motion to send H123 to the floor with a do pass. Second was by Senator Richardson.
DISCUSS: Senator Richardson felt that there was nothing mandatory given here but it gives the opportunity for greater punishment to be given by the judge, which makes sense. He feels there should be a bill come back that addresses incest/rape because he has a hard time believing that after what the committee has heard, that any of this would be consensual. He feels that the book should be thrown at these offenders. Senator Sweet echoed those sentiments, saying that he has seen this devastate a relative's family and there needs to be some language come back that makes the punishment commensurate with the crime.
VOTE: The motion carried by a voice vote.
Adjourn: Meeting was adjourned at 2:20 p.m.




DATE: March 19, 2003
TIME: 1:30 pm
PLACE: Room 437
MEMBERS PRESENT: Chairman Darrington, Vice Chairman Lodge, Senators Sorensen, Richardson, Bunderson, Sweet, Marley, Burkett
MEMBERS

EXCUSED:

Senator Davis
MINUTES: Senator Bunderson made a motion to approve the minutes of March 17 as written but with one correction. He was the one suggesting that the task force meet on S1138, the Toughman bill, instead of the Attorney General, but would like the AG to participate. Second was by Senator Lodge and the motion carried to approve the minutes as corrected carried by a voice vote.
S1160 Senator Sweet presented this bill which deals with the restoration of civil rights to convicted felons. This public safety amendment prevents persons convicted of degrees of murder or voluntary manslaughter from shipping, transporting, possessing, or receiving a firearm after final discharge from custody from the Idaho State Board of Correction. It would eliminate the loophole of allowing felons who were convicted of such crimes before July 1, 1991 to exercise this right. Based upon their past conduct, such felons have demonstrated their unfitness to be entrusted with firearms. Those who have used a firearm in the commission of a crime are not entitled to have that right restored to them.

Senator Richardson asked how serious it was to ship a gun to someone. Senator Sweet said that a convicted felon cannot handle a gun, be in the same room with or work where a firearm is sold. That prohibition is in place and it is very stiff, but it is the law. Senator Richardson then asked about the responsibility when a gun is sold, is it the salesman or the buyer. Senator Sweet answered that the biggest tool in use is the national insta-tracking system (NIX) that is a data base available for any dealer to use when selling or transferring a firearm. You cannot transfer a firearm until a NIX background check has been conducted on that person. This will find any infractions or misdemeanors which would prohibit the buyer from owning a firearm. When the NIX has checked the data base, the FBI has done the background check and gives authorization for sale, then the seller has no liability unless they knowingly sell it to a felon.

MOTION: Senator Sorensen made a motion to send S1160 to the floor with a do pass. Second was by Senator Richardson and the motion carried by a voice vote.
H218 Tom Beauclair, Director Department of Corrections, presented this bill not as a prospective of compassion, but as a prospective of operational effectiveness. Maximum Security prison was designed to hold 300 inmates, and currently there are 550 housed. That design was to single cell all inmates in that prison and currently most of those inmates are double-bunked. This legislation would remove the restrictions in code and give the Department of Corrections discretion to move someone off death row, but leaving them in maximum security. There are only two other states that handle death row inmates like Idaho, Wyoming and South Dakota. This allows some flexibility in the system, while not decreasing security. One problem is that there are more dangerous inmates in general population than are on death row. They may not have a death sentence, but they are being housed there for murder or other crimes, and their behavior is much more dangerous than some on death row. Passing this legislation will actually increase the ability to provide security and they are asking to allow the Department of Corrections to do the job they were mandated to do and use the discretion they need to move people in and out of those areas as they feel the need to do so. He has talked to the correction officer in the housing area of death row, and they don'ts ee this as an increase in risk to their safety. There are 18 inmates on death row, with one being there for 20 years, and only one being executed in a long time.

Senator Bunderson asked if passing this legislation would result in freeing up some of the bed space, and was told that it doesn't save money as someone else would move into the cell that they feel is more dangerous. There are about 4 on death row that they could move, due to behavioral and an objective not a subjective process, and then he would have the final say whether that person moved off death row. If the Department of Corrections had the discretion to move someone off death row, they would be moved into the general population and they would have contact visits, more freedom in who came to visit, and they would have more exercise with other inmates in a restricted environment. If their behavior warranted, these could be double bunked. Senator Darrington asked if all visits would be at the discretion of prison officials, and was told that they would and that the department is looking at a way to manage inmate behavior. On death row, there isn't much you can offer to get an inmate to behave, but they could possibly change their behavior if they had the potential to move off death row.

Senator Bunderson then asked if the term "death row" would cease to exist, and was told that it would still exist and if the warrant execution was given then they would go back to death row from the general population. Part of the reason for this legislation was a lawsuit, which is still pending and there needed to be sure that they weren't creating a "liberty interest" created by allowing one inmate to come off death row, and another could sue for a "liberty interest". He was assured by their legal counsel that as this is written, that could not happen. Also, Mr. Beauclair said that the term "death row" is not a term of law.

Senator Burkett asked if they had that discretion under statute in present law, but had not used it and was told they have never had the discretion under the current law.



Senator Richardson said he felt that solitary confinement is not a security item, but a punishment. If a person is taken out of solitary and put into the general population, wouldn't that lesson the punishment? Mr. Beauclair told the committee that death, or execution is the punishment, not where they are housed. When the original death sentence came about, they didn't anticipate holding a person for 20 years. Maximum security is a tough place, as many are psychotic, mental health inmates and many are more dangerous than some on death row. They want to be able to house the ones that they need.

Mia Crosthwaite, legislative liaison for the Catholic Church of Idaho, spoke in support of H 218 as the Church believes that both victims and offenders are children of God and therefore deserve to be treated with basic human dignity. They believe that punishment must have clear purposes: protecting society and rehabilitating those who violate the law. Solitary confinement has been described as psychological torture and cruel and unusual punishment. It is detrimental for prisoners and has the potential to rob victim's families of something they deserve and that is a sincere apology. After time and reflection, many perpetrators who are sentenced to death with no remorse, come to regret their crimes and can apologize to the victims of the families.

Heather Reilly, Idaho Prosecuting Attorneys Association, said their association has concerns with the legislation. She testified in the House committee about the violent crime that can occur within the walls of the prison. There is nothing more to do to Death row inmates, if they commit violent crime within the walls. Their concerns are that this is the "worst of the worst" and they need the most supervision. She felt that there should be a look at the other states to see if they have rules that direct who is taken off death row, so the equal protection issue isn't a problem. She reminded the committee of a couple of inmates that saved their razors so they could kill an inmate that they believed was a child molester. They attacked him, injuring him quite severely and were tried for aggravated battery with intent for murder. Director Beauclair said that there was concern about the very dangerous inmates that are not on death row.

Senator Marley asked, if this is done in other states, what are the results from their experience with this plan. Mr. Beauclair told him that all the other states with a death penalty have gone to this system. He hasn't asked for their results, but most have been operating like this for some time. He doesn't know how those who are on death row will act when they are off death row and said he is concerned about very dangerous inmates that aren't on death row.

Senator Lodge had a concern about an inconsistency in the bill where it states in section 3 that "No other contact visits shall be permitted." and yet in section 9 it says that "Contact visits between the condemned person and persons other than his attorneys of record and the agents of the attorneys of record may be allowed at the discretion of prison officials."

Senator Sorensen also felt that there was a conflict between the old section and the new one, and suggested that it should be amended if it goes forward. She asked why these prisoners should even be allowed contact visits, and was told they would follow the law with this legislation, and if they need to establish a rule, they can do that as well. Director Beauclair told the Senator that he would favor the contact visits

Senator Sweet asked how this conflict could be resolved and Senator Sorensen suggested that this be amended, that the committee make a policy decision as to which one of the visits to allow on death row. There was also concern about solitary confinement and close custody, and she felt the terms should be consistent.

MOTION: Senator Bunderson made a motion to send H 218 to the 14th order for amendment. Second was by Senator Sorensen. There was some discussion about what to accomplish through the amendments. Senator Burkett had been looking into this bill and was not comfortable with the time that was spent on it. He and Senator Bunderson agreed to help with the amendments .
VOTE: Motion carried by a voice vote.
ADJOURN: Meeting was adjourned at 2:25 p.m.




DATE: March 24, 2003
TIME: 1:30 pm
PLACE: Room 437
MEMBERS PRESENT: Chairman Darrington, Vice Chairman Lodge, Senators Sorensen, Richardson, Bunderson, Sweet, Marley, Burkett
MEMBERS

EXCUSED:

Senator Davis
MINUTES: Senator Lodge made a motion to accept the minutes of March 14 as written. Second was by Senator Marley and the motion carried by a voice vote. Senator Richardson made a motion to accept the minutes of March 19 as written. Second was by Senator Lodge and the motion carried by a voice vote.
H269a Representative Shirley Ringo presented this bill that relates to threats of violence at schools and is supported by the Association of School Administrators. The purpose of this legislation is to create a new chapter of Idaho Code to provide defamation immunity for individuals who report threats of school violence to appropriate authorities. The proposed legislation defines terms, procedures, and requirements to afford defamation immunity. She said as she thought about this legislation," it would have been unthinkable in the past to entertain the notion that our children were not safe in their schools. And now there are situations where children are not safe in their own homes, and in their own beds."

As a former teacher, she felt the responsibility that children should be safe while they are at school. Doors at the school where she taught were retooled to lock from the inside, and other steps were taken to block the view into classrooms, and to limit the number of doors that were open. An individual was hired to watch the halls while classes met. She said this legislation would help to issue a flow of information to anticipate and prevent acts of violence at school.

Senator Darrington asked Rep. Ringo what Idaho problem would be solved with this legislation and was told that it would take steps to be prudent and ready for such situations.

Senator Lodge asked if the wording of the bill could include custodians and was told that the attorney that helped draft the bill suggested that the language not get too broad, but the intent was to channel information to the proper authorities.

Casey Green, spoke in favor of H269a, as a patrol office for the Moscow Police Department. He also serves the school district as a School Liaison officer, working closely with school administrators and students to ensure that the children's educational experience is complete and the environment for learning is safe. He told the committee, "when we look back at the horrific events that have happened, we usually see warning signs, but the most chilling aspects of the painful hindsight is hearing students relate how they saw it coming, but did nothing to act to prevent it." Most times this happens due to fear of civil repercussions for getting involved. He feels very passionate about this legislation as they have had two threats of violence in the last three years. Fortunately the threats were voiced before the action was taken and they were averted. This legislation will act as a tool to allow a person to come forth with information which can be used to prevent another tragedy from happening in a school.

He mentioned a "We-Tip" program in place where a person can call and leave information, but he said that questions aren't asked that will help information be verified, so it is treated as a rumor. The program is helpful, but not adequate enough to prevent an act of violence at school.

Senator Bunderson asked if this legislation was limited to violence or could it apply to vandalism. When told that it could apply to vandalism, Senator Bunderson felt the language would prevent this as it states "by use of a firearm, explosive, or deadly weapon".

Senator Richardson asked if there had been many false alarms reported. Officer Green that this is an "act in good faith" law.

Senator Burkett asked how many times did this apply to a student or anyone else who comes to a teacher and reports something or do many not come forward for fear of a defamation lawsuit and was told that they hadn't had this happen yet, but this legislation was patterned after a California law where this had happened.

Phil Homer, Legislative Advisor, Idaho Association of School Administrators, spoke in favor of H269a, as their number one priority is to provide the very best learning environment for all children. Research indicates that when a student brings a weapon to school, other students know about it. This bill could help establish an atmosphere in the schools where students who have this knowledge would be able to report it without fear of reprisal.

Dale Kleinert, Asst. Principal of Moscow Jr. High School spoke in support of H169a, which he felt provides one more layer of school safety for children. His life centers around the task of making sure the students that enter his building are safe, and over the years has developed multiple taps of safety plans. His school of 600 students is a community of individuals with a network of support including parents, extended family, and neighbors. That community has a broad knowledge base about potential activity that may not be safe, and they must be able to give that information and not be afraid of retribution. As an administrator, he counts on students to be the eyes and ears of the school and to report unsafe activity and the only way to keep the school safe is for these students and their families to report suspicious behavior. Recently, he heard third hand about a student showing a knife to younger students on a school bus. The incident wasn't reported for two days, because students didn't want to get involved. Most parents are hesitant to come forward as well, because of a case where a high school girl and her family incurred over $40,000 in legal fees when she tipped authorities about a threat of violence in a public school and was sued. When the family asked the school for help with the financial obligation, they were told that the school could not assist them.

Mr. Kleinert told the committee that "this legislature needs to act quickly before retaliatory lawsuits bring a real barrier to stopping acts of violence by causing parents to instruct their children not to report anything to school officials because of the fear of liability."

Senator Darrington asked if there have been other suits filed in other states, and was told that they aren't aware of any but they are working hard to identify students at risk and to get information concerning their behavior.

Senator Sweet wanted to make it clear that this bill was just about liability for those coming forward without threat of retribution and was assured it was.

Senator Bunderson asked if bringing forth this law means the other law is ineffective and inadequate to handle these situations. Rep. Ringo answered that there are parts of code that deal with defamation and this bill would just provide another layer of protection.

MOTION: Senator Richardson made a motion to send H269a to the floor with a do pass. Second was by Senator Marley and the motion carried by a voice vote. Senator Marley will carry this on the Senate floor.
ADJOURN: Meeting was adjourned at 2:14 p.m.




DATE: March 31, 2003
TIME: 1:30 pm
PLACE: Room 437
MEMBERS PRESENT: Chairman Darrington, Vice Chairman Lodge, Senators Sorensen, Richardson, Bunderson, Sweet, Marley, Roberts
MEMBERS

EXCUSED:

Senator Davis, Burkett (Barbara Roberts serving for Senator Burkett)
MINUTES: Senator Sweet made a motion to accept the minutes of March 24 as written. Second was by Senator Marley and the motion carried by a voice vote.
Senator Darrington told the committee that the bills to be heard today are a series that started in the House, and are from the officer of the Court. These are similar to the "defects in the law" legislation that started in the Senate, and shepherded by Senator Sweet.
H 335 Representative Robert Ring presented this legislation for the Idaho Supreme Court after suggestions from the Trial lawyers that amends existing law relating to sentencing criteria in drug cases; to provide that substance abuse evaluations may be waived in certain circumstances.

Prior to the sentencing for certain drug crimes, Idaho Code provides for a substance abuse evaluation of the defendant for the assistance of the sentencing judge in determining whether substance abuse treatment should be ordered as part of the sentence. As a matter of judicial economy, judges who handle these cases believe that in an appropriate case these evaluations are unnecessary and may be dispensed with if the sentencing judge has sufficient information to make an informed decision concerning whether or not a rehabilitative treatment program should be ordered. The amendment to Section 37-2738, Idaho Code, made by the bill provides that with respect to certain drug offenses committed by first-time offenders of the drug laws, the court may waive the evaluation if there is no information before the court which suggests that the defendant regularly abuses drugs or is in need of treatment. The judge may also waive an evaluation if the defendant has been evaluated for this purpose within 12 months of sentencing. The bill was amended in the House to remove the word "tool" before the word "assessment."

Judge Joel Horton told the committee that he has a background in prosecution and criminal defense so thereby has a unique prospective of looking at this legislation. This bill has fairly limited application. Judges want to have as much information as possible at the time of sentencing, but there are certain rare instances that they will have enough information to warrant dispensing with the evaluations that would otherwise be required.

Under the amendment proposed by H 335, the judge is given the discretion to waive a substance abuse evaluation and proceed to sentence the defendant if either of the following circumstances are present:

First Time Offenders ­ If the offender being sentenced has no prior or current charges with respect to any of the drug offenses covered by 37-2738, for example, manufacture or delivery of a controlled substance, possession of a counterfeit controlled substance, or of a controlled substance without a valid medical prescription, or of marijuana, AND the court has no reason to believe that the defendant has a substance abuse problem and is in need of treatment, then the court may waive the substance abuse evaluation for the offenses of possession of marijuana or possession of a counterfeit controlled substance with intent to deliver. The first-time offender exception does not apply the offenses of manufacturing of a controlled substance or possession of a controlled substance without a valid prescription.

Availability of Comparable Information ­ Additionally, and regardless of the applicability of the first-time offender exception described above, the judge may waive a substance abuse evaluation and proceed to sentence the defendant if the court has a pre-sentence investigation report, substance abuse assessment, criminogenic risk assessment or similar assessment prepared within 12 months of sentencing which divulges information regarding the defendant's need for substance abuse treatment.

There will be a cost benefit to individuals, also to counties, and the primary value is that it cuts down the delay and backlog for the judiciary that comes from these evaluations.

Senator Darrington mentioned that the evaluations can be expensive and asked if the evaluations done for the indigent are at expense of the court. Judge Horton answered that in Ada county, 5-10% of the misdemeanor cases are paid for by the county, but it is different at the district court level. At the district court level 95% of the evaluations in felony cases are paid for at county expense. He has been told the cost of an evaluation can be over $100.

Senator Darrington then asked if the Judge was satisfied with the quality of the evaluations and was told that he was satisfied with the quality of the evaluations, and it would be a rare instance that they would to do away with them.

Senator Bunderson asked what percentage of these cases would not require an assessment. At the felony court level, they might do away with them 10-20% of the time. They have felony repeaters about 20% of the time, but for first time offenders, they wouldn't be in a position to waive assessment.

Thomas A. Wilson, a licensed alcohol and drug abuse evaluator and has done about 300 a year since 1995, both for felony and misdemeanor levels. He said there are two types of counselors, the therapeutic counselor, who works with a client to make them better in whatever way they need, and a forensic counselor whose client is the judge, the judiciary , the prosecutor, and sometimes the defendant. Information is provided to help make a reasonable decision about what a person should need for sentencing. His concern is that there is no mention of standards, and the decision making process for who has a problem and who doesn't will be left to the judge, who has seen a lot of cases. As a licensed professional, he feels there are standards for making recommendations, which are based on scientific evidence that is a predictor of risk for future abuse or violence for evaluating. This bill seems very vague in how the judges are going to determine these cases. Statistics are pretty clear, that most first offenders, even though their record is clean, are going to re-offend 25-30% of the time.

Senator Darrington asked him if the judges feel they have adequate information, then would the information be supplied by incompetent people. Mr. Wilson said that no one looks very hard at first offenders, and someone needs to look at the risk factors.

MOTION: Senator Lodge made a motion to send H 335a to the floor with a do pass. Second as by Senator Sorensen and the motion carried by a voice vote. Senator Lodge will carry this bill on the Senate floor.
H 336 Representative Richard Willis presented this legislation which is along the same lines as H 335, but relating to driving under the influence of intoxicating substance. Prior to the sentencing of a defendant for a violation of driving under the influence of alcohol, current Idaho Code, provides that the defendant shall obtain an alcohol abuse evaluation for the assistance of the sentencing judge in deciding whether alcohol treatment is indicated and this is mandatory in all DUI cases. The Judiciary believes that in appropriate circumstances the sentencing judge should have the option of waiving these evaluations. In many cases, the sentencing judge already has sufficient information through other records and reports relating to the defendant's degree of alcohol abuse to make an informed decision concerning whether an alcohol treatment program should be ordered. The amendment to Section 18-8005, Idaho Code, contemplated by this bill provides that the sentencing judge has discretionary authority to determine that an evaluation is unnecessary with respect to certain Driving Under the Influence (DUI) offenses committed by persons who have no prior violations of the DUI laws if the judge has the defendant's criminal history, driving record and evidentiary test of the defendant's degree of alcohol concentration and has no reason to believe that the offender regularly abuses alcohol and may be in need of treatment. Similar to the legislation for substance abuse, this bill also grants a judge discretion to waive an evaluation in any case where the court has a similar assessment which has been conducted within twelve months of the sentencing.

Representative Wills recognized that there are no standards set, and recommended a bill for a standardized test as there are discrepancies and the judiciary needs all the tools to make this decision at the appropriate time.

Judge Horton also spoke to this bill saying the judges aren't looking for a way out of doing these evaluations, as their biggest fear is finding out that a released defendant has re-offended and taken out a family. He also gave the committee an idea of the cost savings for percentage of waived evaluations. Even 2% of evaluations waived would result in a savings of $11,062.00 annually. Evaluations take up to three weeks to prepare and this bill also save court time and resources by avoiding unnecessary delays in the sentencing of a defendant. For the first time offender under the amendment proposed by this bill, the judge is given the discretion to waive an alcohol evaluation and proceed to sentence the defendant if either of the following circumstances apply:

First-Time Offender

If a defendant has no other prior or pending DUI charges with respect to the standard DUI offense, for examplewhere the defendant has an alcohol concentration of .08 or above; or driving with an excessive alcohol concentration of .20 or above ; or aggravated DUI, when a person other than the driver is injured; and the court has:

The results of any evidentiary test for alcohol or drugs at the time of the offense; the defendant's driving record; and the defendant's record of DUI offenses; and, the court has no reason to believe that the defendant regularly abuses alcohol or drugs and is in need of treatment;

Then the court may waive an alcohol evaluation for the standard DUI offense and for a first-time excessive alcohol concentration DUI . However, the court cannot waive an evaluation, even with respect to a first-time offense, if the defendant has committed an aggravated DUI.

Availability of Similar Evaluation

Additionally, the judge may also waive an alcohol evaluation and proceed to sentencing in any DUI case if the court has a presentence report, substance abuse assessment, criminogenic risk assessment, or similar evaluation prepared within 12 months of sentencing which has evaluated the defendant's degree of alcohol abuse and need for treatment.

Molly Cox, Mothers Against Drunk Drivers (M.A.D.D.) expressed concern with this bill and said " judges are educated experts in law, not drug and alcohol issues. A one-on-one consultation with a trained evaluator is the best way for everyone to get a good picture of the issues confronting a defendant. Until a person talks with a substance/alcohol abuse treatment provider, they may not understand that they have a problem. I good evaluator can help a person come to terms with the fact that they do have issues with alcohol and/or drugs that need to be addressed. Family and friends may have tried to discuss this with the defendant, but hearing the facts from a professional evaluator may be what it takes to get this person to take positive steps to turn their life around." She felt the judges should not be given the responsibility of deciding who is in need of an evaluation. She told the committee that a first time offender has probably been driving impaired about 500 times before finally getting arrested. Their organization is concerned because felony DUI's happen only to repeat offenders and there needs to be an evaluation for these offenders even though this may be their first felony.

MOTION: Senator Sweet made a motion to send H 336a to the floor with a do pass. Second was by Senator Richardson and the motion carried by a voice vote. Senator Marley will carry this bill on the Senate floor.
H 337 Representative Dick Harwood presented this legislation which authorizes the clerk of the court to accept credit cards or debit cards in the payment of court charges such as filing fees, fines, and court costs. At least 25 other states have authorized this practice, and credit cards and debit cards are routinely used by litigants to conveniently pay these obligations in these jurisdictions. Because credit card issuers ordinarily charge the recipient of the funds a small percentage of the transaction amount for each transaction they process, issues have arisen as to the authority of the courts to accept credit cards because governmental recipients of this revenue would receive something less than their full share of the fine, fees and costs ordered by the judge. As part of the requirements of this legislation, the card user pays the costs of the transaction (including the fee charged by the card issuer), so that the governmental entities that receive this revenue receive the full amount that is due. The acceptance of credit cards and debit cards will also result in the prompt payment of these court charges, thereby reducing the risk that they will become delinquent and require court time and expense to collect them.
MOTION: Senator Sorensen made a motion to send H337 to the floor with a do pass. Second was by Senator Marley and the motion carried by a voice vote. Senator Sweet will carry this bill on the Senate floor.
H 338 Representative Mack Shirley told the committee that court records show about $56 million dollars in fines, fees, surcharges and restitution are owed by those who have been convicted of a state or local offense. In an effort to improve the collection of unpaid fines, fees, costs, restitution, and other amounts ordered by a court, other states, such as Arizona, have enacted a debt set-off program by which the courts notify the tax authority if there are any court ordered amounts in arrears, which are then satisfied from any tax refund due to the debtor. In 2 ½ months, Arizona collected $2.5 million dollars. Idaho has a similar statutory procedure where the income tax refunds are applied to the taxpayer's child support obligation.

This bill authorizes the Idaho State Tax Commission upon application of the Supreme Court to apply any income tax refund owing to a taxpayer who is delinquent in the payment of fines, fees, court costs, victim restitution, and other amounts ordered by a court to satisfy the unpaid court obligation. Only those people with a refund coming are impacted by this bill that is expected to measurably increase revenues that are apportioned to various state, county, or local funds. However, the amount of increased collections cannot accurately be estimated at this time.

MOTION: Senator Richardson made a motion to send H338 to the floor with a do pass. Second was by Senator Bunderson and the motion carried by a voice vote. Senator Richardson will carry this bill on the Senate floor.
H 369 Representative Debbie Field presented this bill that relates to funding for the drug court and family court services fund. This legislation provides for a two percent surcharge on the sale of all liquor through the Liquor Dispensary in order to provide an ongoing dedicated source of funding for Drug Courts and Family Court Services in the Judicial Branch. Section 23-217(a), Idaho Code, has become obsolete in the day-to- day operations of the Dispensary's approach to pricing products. This bill results in an overall 2% increase in the total shelf price of liquor sold at the Dispensary. Section 23-217(b), Idaho Code is still relevant because it provides for the 5% markdown on the sale of liquor to all licensees, but has an incorrect reference to code Section 23-902e. A correction is included in this legislation. This bill basically takes advantage of current Idaho Code to create a new provision to provide funding for court services without disrupting any other distributions from the Liquor Control Fund. This bill will generate approximately $1.5 million to be deposited into the Drug Court and Family Court Services Fund. This fund will be subject to appropriation by the Legislature and is anticipated that it will free up General Funds that are now dedicated to Drug Court and Family Court Services. These programs have been put at risk due to reducing General Fund appropriations in the Judicial Branch's budget. She showed the history of this bill which has been modified seven times. (See attached #1)

In Ada County, 97% of those who participated in the Drug and Family Court services became employed, and 89% were not convicted of any other crime. This program saves lives before they go to prison. If this bill passes, some inmates can be taken out of prison and go through the program.

Senator Darrington asked why the authority for the spending was given to the JFAC chairman, and was told that if this is the way to do this, it has to go through JFAC. Senator Darrington asked then if JFAC could appropriate these funds anywhere else. Rep. Field replied that the legislature can choose where monies go regardless of the source.

Senator Bunderson asked if 2% would be based on the gross proceeds and was told that originally it was 5% because cases were broken and sold, but now only whole cases are sold, so the 5% is a gratuity and possibly maybe the entire 5% can be picked up.

Senator Roberts asked if there was talk about raising the tax on liquor to meet budget needs. She was told that the liquor dispensary is a separate tax than that on beer and wine, and this legislation doesn't apply.

MOTION: Senator Lodge made a motion to send H369 to the floor with a do pass. Second was by Senator Sorensen and the motion carried by a voice vote. Senator Darrington and Senator Lodge will co-sponsor this bill on the Senate floor.
ADJOURN: Meeting was adjourned at 3:37 p.m.