2003 Judiciary & Rules
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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 ControlPeg 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.