2004 Judiciary & Rules
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January 14, 2004
January 19, 2004
January 21, 2004
January 23, 2004
January 26, 2004
January 28, 2004
January 30, 2004

February 2, 2004
February 4, 2004
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March 1, 2004
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March 10, 2004
March 15, 2004

DATE: January 14, 2004
TIME: 1:30 p.m.
PLACE: Room 437
MEMBERS
PRESENT:
Chairman Darrington, Vice Chairman Lodge, Senators Sorensen, Richardson,
Bunderson, Davis, Sweet, Marley, Burkett
MINUTES: There were no minutes to approve, as this is the first meeting of the session.
Welcome: Dian Walton was introduced as the committee page for the first half of the
session. Dian is from Emmett High School and is already doing a great job for
the committee. Senator Darrington welcomed the committee back and
explained that Chief Justice Trout sends an annual letter to the Court noting the
defects in the law. The following legislation is to correct those defects.
RS13558 Tom Frost, Idaho Supreme Court introduced this legislation relating to victim
restitution. This bill provides that any restitution ordered for a crime victim shall
have priority over any payment the defendant is ordered to pay to a
governmental entity. Section 20-614(7) requires a payment to a governmental
entity, i.e., reimbursement of jail confinement costs.
MOTION: Senator Sorensen made a motion to send RS13558 to print. Second was by
Senator Marley and the motion carried by a voice vote.
RS13559 This bill, presented by Tom Frost, amends Section 37-2738 which authorizes the
waiver of substance abuse evaluations with respect to certain first-time drug
offenses, and also adds the non-narcotic misdemeanors as first-time offenses
which qualify for a waiver. This bill is anticipated to have a positive impact on
local funds by eliminating costs associated with unnecessary evaluations that
otherwise would be borne by county governments. There is no change in the
penalties of a crime, merely a procedural change for judges to waive
unnecessary evaluations.
RS13559 Senator Sorensen made a motion to send RS13559 to print. Second was by
Senator Lodge and the motion carried by a voice vote.
RS13561 Tom Frost told the committee that this bill amends various sections of the Idaho
Code to correct the outdated references to the Youth Rehabilitation Act, which
was replaced by the Juvenile Corrections Act in 1995.
MOTION: Senator Lodge made a motion to send RS13561 to print. Second was by
Senator Sorensen and the motion carried by a voice vote.
RS13564 Heather Reilly, Deputy Ada County Prosecuting Attorney presented this
legislation for Bill Douglas, Kootenai Co. Prosecuting Attorney. This legislation
is to create a means by which statewide recognition will be given for
extraordinary acts of valor and heroism by firefighters and police. The fiscal
impact of this law will be minimal and may include travel and lodging for the
eight committee members, depending on how many will have to travel to the
semi-annual meeting. In addition, the cost of the casting of the initial medallions
is anticipated. Senator Richardson asked what the cost of this would be. Ms.
Reilly replied that Mr. Douglas was hoping that this could be accomplished by
donation. Senator Bunderson felt that the fiscal impact statement should be
clear as to who pays for it. Senator Sorensen asked if the committee could
meet via teleconference and save some expense. Senator Burkett was
concerned with the term “Medal of Honor” and wondered if the use of that term
was cleared through the Pentagon. Ms. Reilly said this was patterned after
similar legislation from Washington State, and there wasn’t a concern about the
term. Senator Bunderson suggested that the word “Idaho” be put in front of
“Medal of Honor”.



Senator Lodge asked why they needed to meet semi-annually when they meet
annually to give a medal. Ms. Reilly said they must meet not less than six
months to take care of matters that arise.



Senator Darrington suggested that with the concerns expressed by the
committee, that the RS should be returned to the sponsor, to be corrected as
suggested and returned to the committee next week.

MOTION: RS13564 was returned to Heather Reilly for correction and consultation with Mr.
Douglas to be returned to the committee at a later committee meeting.
RS13620 Heather Reilly also presented this legislation to clarify Idaho’s current forgery
statute. This includes falsely making, altering, forging counterfeiting or uttering,
publishing, passing to attempting to pass, as true and genuine with the intent to
defraud counterfeit money. Law enforcement and prosecutors throughout the
state currently investigate and file charges under this code section when a
suspect passes fake United States Currency. The crime of making and passing
counterfeit currency is a common occurrence in the cities and counties
throughout Idaho and this problem needs to be continually addressed at the
local level. This code section provides for a misdemeanor penalty which is
contrary to the other forgery and counterfeiting statues, that provides for felony
punishment. Senator Davis felt it would be important, possibly as Section 1 to
incorporate federal reserve notes, and United States currency. He felt that
adding this to the actual bill would alleviate the fear that defense counsel would
argue the intent, and find this was the way it was being done all along. It should
not appear in Idaho Code, but in the bill itself. He felt this would be the right way
and avoid the need to appeal.
MOTION: Senator Davis made a motion to send RS13620 to print. Second was by
Senator Sorensen and the motion carried by a voice vote.
Adjourn: Meeting was adjourned at 2:10 p.m.






DATE: January 19, 2004
TIME: 1:30 p.m.
PLACE: Room 437
MEMBERS
PRESENT:
Chairman Darrington, Vice Chairman Lodge, Senators Sorensen,
Richardson, Bunderson, Davis, Sweet, Marley, Burkett
MEMBERS
ABSENT :
Senator Marley
MINUTES: Senator Lodge made a motion to accept the minutes of January 14 as
corrected. Second was by Senator Sorensen and motion carried by a voice
vote.
GUBERNATORIAL APPOINTMENT
Carolyn Meline – appointed to the State Board of Corrections to serve a
term commencing August 6, 2003 and expiring January 1, 2009
Ms. Meline has been a County Commissioner for 21 years and 3 months.
She most recently was a Southeast Idaho District Health Board member.
She has served as the chair of the regional juvenile facility training in jail
crises, and feels that she is familiar with what is going on in this area. She
has been to the drug court system, and listened to the budget proposal, as
she will be able to work on the budget next year if appointed. She is the
Democrat appointment to the Board of Corrections as per the law. When
asked by Senator Darrington if she supported the death penalty, she
responded that she did, but help is needed to move us into a different circuit,
as it is too costly to keep inmates on death row. Ms. Meline would like to see
another 120 beds and get the cap lifted on the number of inmates that can be
housed. Senator Sorensen asked her about “good time” that can get an
inmate out quicker. She felt that the cooperation of judges and attorneys is
needed to cooperate to move prisoners, especially older ones to a less strict
work involved in this and she will put time in for St. Anthony, and work centers
in her area, as she has spent a lot of time with “Sisters” in the women’s prison
in Pocatello. Senator Richardson asked her what goal she was working
toward, and she answered that she would like to see the inmate get some
kind of treatment before they are first incarcerated. She would like to see
them work while being treated. She also felt they needed a facility for mental
patients.



Senator Bunderson asked her about funding of drug courts, and the
Supreme Court still accessing the request for funds, she commented that
these are changing people’s lives. Meth is a big problem, but she said if the
rest of the drug courts in the rest of the State are functioning as well as the
one with Judge Smith in her area, then it is great. Senator Bunderson asked
her if more funds should be appropriated or would they be willing to wait for
the Supreme Court assessment. Ms. Meline instructed him to keep giving the
money that is being given now, and then make sure that all seven Districts
are using the program.



Senator Sweet asked her to identify one critical issue for Corrections in the
next ten years and suggest a solution. She responded that Hepatitis C,
Mental Health and the Sex Offender are the major three issues. The cost for
innoculating each prisoner in a facility is $100 and 10% of the population is
infected. The ACT program of Health and Welfare is helping the mental
health program, but to get the sex offenders back into the community is going
to take a whole community and will be a real challenge.



Senator Burkett asked if it costs less to house inmates at a work center, and
could more inmates get into these. She is very supportive of the work
centers, but movement of prisoners is very costly and there is a need for one
in the northern part of the State.



Seator Darrington asked what the role of the Department of Correction is as
far as incarceration and rehabilitation. Ms. Meline feels the main goal is to
protect society and through vocational education to help get inmates ready to
merge into society, by having a home and a job when they are released.



Senator Darrington told the committee that the confirmation of Ms. Meline
would be voted on in the committee meeting on Wednesday, January 21.

Rules Review was conducted by Vice Chair, Senator Patti Anne Lodge

RULES REVIEW

Commission for Pardons and Parole

Olivia Craven, Executive Director of the Commission. This rule confers a
benefit to the State of Idaho and its citizens and has been revised and
expanded to include placing parolees, who meet certain criteria, on
unsupervised parole. This saves the state the cost of supervision, while the
parolee is monitored for repayment of fines, fees and court ordered
restitution. They have collected more money in restitution in the past four
years than in all the previous years, and they feel a parole officer should be
doing something else besides collecting money. Ms. Craven reported that
they would like to put parolees who have done well, but still owe restitution, in
this status. Other categories are being looked at also. This would allow
minimal monitoring and free up an expensive parole officer to work with those
needing their assistance.



Senator Lodge opened the rules review to questions. Senator Sorensen
asked how many parolees would fall into this category. Ms. Craven couldn’t
give the committee an exact number for this year, but a study was done last
year and the numbers were at about 200, but they are significant enough to
warrant the cost savings in supervision each month.



Senator Davis asked who would monitor these payments, if parole officers
didn’t not do it. Ms. Craven responded that she hasn’t had a commitment
from community corrections to monitor this, but if this rule is implemented, it
may be a commission person monitoring the payments. Senator Davis
would like an answer before approving this rule. His fear is that restitution
would be decreased by going to an unsupervised parole. Ms. Craven
believes that this won’t happen. The old system didn’t require restitution if the
person went to prison. Now, restitution is required no matter what and it will
be monitored, but it won’t take the expensive parole officer to do the
monitoring. If parolees stop making payments, they could be placed under
regular supervision. She said she would be very happy to return to the
committee with the answer of who is going to monitor these payments,
whether it be the department or the commission.



Senator Bunderson asked what kind of an increase in workload is being
experienced by the parole officers, and are there enough to do the job
efficiently? Ms. Craven responded that this could be covered in the report
she is going to give the committee on the Commission in a few minutes.



Senator Sorensen asked if the driving force behind this was cost and Ms.
Craven said it is all about the money, as they hesitate to discharge someone
who has not paid their restitution. The judgments are all civil judgments but
are very difficult to collect. The victim might have to go in on a monthly basis
to collect their restitution. This is a way to help collect the restitution, but not
have them supervised by a parole office. Senator Sorensen asked for an
amount of expected savings, and Ms. Craven agreed to provide that.



Senator Lodge thanked Ms. Craven for presenting the rules and noted that
the committee would be voting on the rules at the next meeting, which will be
on Wednesday, January 21.

Report and update of Commission – Olivia Craven, Executive Director
Senator Darrington asked Ms. Craven to give a report of the Commission
and keep in mind the question of Senator Bunderson as to the workload of
the parole/hearing officers.



Ms. Craven introduced Connie Morgan who manages the hearing process for
the Commission. She was pleased that the budget was increased this fiscal
year and the Commission was able to add 4 hearing officers, an office
specialist and an administrative assistant. The hearing officer program was
designed to assist the Commission by providing a standardized report and a
complete investigation for each inmate. This has resulted in less preparation
time for the Commissioners, as they have less documents to review, has
resulted in less time in sessions, due to having the information in a
standardized format, and the Commission believes they are making better
decisions. Better release decisions factor into a safer community. The parole
grant rate this last year was 60% and the year before was 56%.



Last year 2026 parole hearings were held; an increase of 210 from 2002.
The parole grant rate is 60%, with 1175 releases. Also, 57 Mexican Nationals
were returned to Mexico.



The Commission has the authority to reinstate parolees back to parole at any
time and did reinstate 240 parolees back to parole or discharged their cases.
Last year, 431 parole violators were returned to prison.



Warning letters are issued in many cases to try to avoid the issuance of a
report of violation resulting in a warrant. Last year, 170 warning letters were
issued, up from 116 in 2002. She explained that just because a warrant is
issued does not mean the parole violator will go back to prison. The
Commission directed 100 of these violators to a TC program, and they will
most likely be released again. Of those, 69% returned with new felony or
misdemeanor crimes, 14% absconded parole, 16% were technical violators,
and 77% of the revoked parolees were serving parole for property and
drug/alcohol crimes. The overall return rate for 2003 was 29%, down from
35% in 2002. Another unscientific note is that 59% of parole violators used
meth while on parole reinforcing the fact that meth is a huge problem.



There are some big issues for the Commission. Over the past 12 months,
they have worked with IDOC to make the release process not only more
efficient, but to get inmates out in the shortest time possible.



Previous to this fiscal year, the IDOC caseworkers had to provide a progress
report for the Commission on each inmate, which took their time away from
working with inmates, helping with their parole plans, and providing
rehabilitation programs. Now, these IDOC employees are free to carry out
their mission, rather than provide support services. The caseworkers now
provide information to the hearing officers without having to complete a
report. From one institution alone, they believe there is a savings of $26,000
a year.



The hearing officers interview\hearing is open to the public and allows for
testimony from the inmate’s family and from victims. The Commission does
not hear every case again, but they do conduct a second hearing for violent
and sex crime cases and DUI’s, but the non-violent cases may be decided
based upon that information. The Commission does not have to follow the
recommendations of the hearing officer, but their decisions remain
independent.



With the addition of the new administrative assistant, the length of time it was
taking to process parole violators has decreased from “a sometime high” of 9
months to an “average” of 3 months. This assistant has made it possible to
process parole violators more efficiently by taking over all of the hearing
scheduling, notices and allowing the hearing officers to simply process the
actual hearing and report.



In summary, The Commission’s authority is to determine who goes on parole;
who might be brought back to prison on violations; who might be discharged
from parole early; who might go on medical parole; and to determine
clemency issues. The Commission is a part-time, 5 member board, that
meets monthly. They are Governor appointees for a three year term.

Ms. Craven told the committee that in the future they need to look at the
management of the Commission as she is not going to work forever.
Senator Darrington voiced concern over her workload and felt she needed
an assistant.
Senator Darrington thanked Ms. Craven for meeting with the committee
today and said that the committee would vote to approve the rules at the next
committee meeting on Wednesday, January 21.
Adjournment Meeting was adjourned at 2:40 p.m.






DATE: January 21, 2004
TIME: 1:30 p.m.
PLACE: Room 437
MEMBERS
PRESENT:
Chairman Darrington, Vice Chairman Lodge, Senators Sorensen, Richardson,
Bunderson, Davis, Sweet, Marley, Burkett
MEMBERS

EXCUSED:

Senator Marley
MINUTES: Senator Richardson made a motion to accept the minutes of January 19th as
written. Second was by Senator Lodge and the motion carried by a voice
vote.
COMMITTEE

VOTE on
appointment:

Senator Lodge made the recommendation that the appointment of Carolyn
Meline be approved tot he Board of Corrections. Second was by Senator
Sorensen
and the recommendation will be passed to the full Senate.
COMMITTEE

VOTE on
rules:

Senator Sorensen made a motion to accept the rules of the Pardons and
Parole Commission as presented. Second was by Senator Lodge and the
motion carried by a voice vote
RS13443C1 Brent Reinke, Dept. of Juvenile Corrections presented this bill that will make
some technical corrections and update the Juvenile Corrections Act by 1)
removing all references to forestry camps, 2) clarifying that programs should
be research based, and 3) clarifying reimbursement to counties for holding
juveniles committed to the state. Also there is a provision for transportation
of certain apprehended juveniles to the department’s nearest regional facility.
MOTION: Senator Davis made a motion to send RS13443C1 to print. Second was by
Senator Sorensen and the motion was carried by a voice vote.
Senator Darrington turned the meeting over to Senator Lodge to conduct
the rules review for the Office of the Attorney General.
RULES
REVIEW:
Office of the Attorney General.
Brett DeLange, Deputy Attorney General, Consumer Protection Unit presented
Docket 04.20.01, rules implementing the Idaho Tobacco Master Settlement
Agreement Complementary Act. He explained that it was the tobacco
settlement that prompted the Attorney General’s office to promulgate rules,
which are necessary to effectively implement and enforce Idaho’s Tobacco
Master Settlement Agreement Complementary Act, effective July 1, 2003.
This rule was adopted to effect the purposes for which the Legislature adopted
this Act, which is to prevent violations of Idaho’s Tobacco Master Settlement
Agreement Act and thereby safeguard the master settlement agreement, the
fiscal soundness of the State and the public health.



The temporary rule and the proposed rule have been amended to clarify the
appeals process for the Attorney General’s determinations related to the
removal or exclusion from the directory of a brand family or nonparticipating
tobacco product manufacturer; provide additional grounds for when a
nonparticipating tobacco product manufacturer must provide quarterly
certifications and quarterly escrow deposits; describe with more detail the
deadlines for providing notice related to quarterly certifications and quarterly
deposits; set forth the consequences for untimely or incomplete quarterly
certifications and quarterly escrow deposits. This will also address the status
of the directory for the time period July 1, 2003 to September 1, 2003, and
provide for the giving of notice to stamping agents and tobacco product
manufacturers prior to the AG removing a brand family or tobacco product
manufacturer from the directory. This makes it clear that the burden of proof is
on the tobacco product manufacturer to establish that it or a particular brand
family is entitled to be listed in the directory.



The office has not received any objection from stampers or tobacco
manufacturers to this rule and they are hoping for approval to make it final.



Senator Sorensen asked what happens to the money for the nonparticipating
tobacco product manufacturers. Mr. DeLange responded that they have two
choices. One is to join the master settlement agreement and the other is to
set up an escrow account. This account cannot be withdrawn for 25 years.
This stipulation was made into law in 2000 to assure that there are funds
available, in case Idaho brings suit against any tobacco pipe manufacturer. If
there is no suit in 25 years, in the 26th year, one years payments would be
withdrawn, and the next year another year’s payments would be withdrawn,
and this pattern would continue from that point on.

MOTION: Senator Sorensen made a motion to approve the rules of the Office of the
Attorney General as presented. Second was by Senator Sweet and the
motion carried by a voice vote
RULES
REVIEW:
Sexual Offender Classification Board
Kathy Baird, Management Assistant to the Board presented Docket 57-0101-0401, IDAPA 57. Last year, she presented a legislative proposal that effected
the certification of sex offender evaluators. The existing law required the
courts to determine whether these evaluators were qualified, under the
standards that the Sexual Offender Classification Board was originally
mandated to set. That bill also provided authority for the board to promulgate
administrative rules to carry out the certification process and other
responsibilities. IDAPA 57 which is temporary and proposed rules, is the
result of last year’s legislation. They need the approval of the legislature to
remain in effect until completion of the pending rules process and finalization
next year. This is the first time that the Sexual Offender Classification Board
has presented rules and several terms needed to be defined.
There was a great deal of discussion among the committee, board members
staff and legal counsel as to the definition of violent. Ms. Baird pointed out
that the definition for violent was included because of the misperception that a
Violent Sexual Predator has hurt or maimed the victim, where in reality sexual
offenses in and of themselves are violent acts against another person.
_____________________.



Senator Davis agreed that it is good to define “violent”, and wondered if the
statute needs to be changed. He felt the group should be allowed to work on
the definition and return next year with a pending rule.



Senator Burkett felt that the definition of “predator” be looked at also, as most
people think predators are identified because of their behavior, and then they
are tagged for the rest of their life. Those tagged feel there should be some
violence involved. If the term Violent Sexual Predator is used, the definition
should be understood by the general public.

MOTION: Senator Darrington made a motion to not approve the Rules for the Sex
Offender Classification Board. Second was by Senator Sorensen and the
motion carried by a voice vote.
Senator Darrington told the committee that they still reserve the right to
approve the rules at a later date. The reason they are not being approved
today is due to the definition of “violent” and “predator” and also because
public hearing on the rules is being held on February 21 to hear comments
and evaluate them.
GUBERNATORIAL APPOINTMENT
Dr. Gary O. Horton – re-appointed to the Sexual Offender Classification
Board to serve a term commencing January 1, 2004 and expiring January
1, 2010.
Dr. Horton has been on the Board for 4 years, has been chair for 2 years and
is now asking to be re-appointed for a six year term. He has served on the
Association for the Treatment of Sexual Abusers, (ATSA Board). He has also
been board member for the Region 6 Mental Health, where he also served as
chairman. He holds a Masters from Oregon State University and a PhD from
the University of Oregon. He is a psychologist for the Center for Human
Relations and Behavioral Reform in Pocatello.



Senator Darrington asked Dr. Horton about how many VSP’s are designated
each year, and what their reporting requirements are. Dr. Horton responded
that the violent Sexual Predator needs to report four times a year. Some go
into therapy when they are released, which helps keep track of them, but 27
are presently designated as VSP. Many of these re-offend, but communities
are notified that they are there so they can be watched.



Senator Darrington asked how many of these are true pedophiles in
behavior. Dr. Horton responded that pedophilia is a “garbage term, and that
a lot of these have normal behavior with other adults. Treatment needs to
focus on the offense rather than the designation. Judges want to know
whether an offender is a pedophile, but it doesn’t really matter, as long as the
behavior is treated. A pedophile cannot be cured, but they are taught to
manage their behavior. As a result, containment is looked at as part of public
safety.”



Senator Lodge asked if the number of offenders was growing or is a better
job being done to identify them. Dr. Horton told the committee that more are
being educated to the problem, but part of the awareness is that 15 years or
so ago, there were no women designated as VSP, and now women are a
regular participant. There are 8 or 10 VSP in women’s prison now.



Senator Sorensen asked what happens when they go into society tagged as
a VSP and was told that some have left the state, others reside in
communities and a small minority adapt, but most can’t ultimately “make it in
society”. Changes are needed to educate the public, especially young people
of the consequences of being charged as a sex offender. Many young people
don’t have any idea what they could be charged with according to their sexual
behavior and there has to be some sort of educational effort made in this area.



Senator Davis expressed concern about sex offenders and pornographic
addiction. He also questioned if the Legislature was giving them the tools they
need to do their job as a classification board and does the Board have the
tools to be able to deal with the classification. He also asked Dr. Horton if he
had a conflict between his profession of counseling and being on the board.



Dr. Horton responded that pornography is usually a high factor in most sexual
offenses. “Right now, the internet is a real concern for the Board because of
the pornography that is on it, and the availability especially among young
people to get to it”, he said and commented that “I won’t say that it is the
cause, but know it is associated”.



Dr. Horton also told the committee “There are some good statutory tools, but
we wish we had other kinds, such as treatment programs in prison. There is a
multiplicity of programs from very structured to very almost liaise faire
programs and there isn’t a good way to direct the quality and enforce
conformity. As for the conflict with my profession and the Board, I recluse
myself when I know the offender.”



Senator Darrington thanked Dr. Horton for his comments and told him that
the committee would vote on his appointment at the next meeting.






DATE: January 23, 2004
TIME: 1:30 p.m.
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 of January 21 as
written. Second was by Senator Lodge and the motion carried by voice vote.
Committee
Vote:

Gubernatorial
appointment:

Senator Davis made a motion to send the appointment of Dr. Gary Horton to
the Senate floor with the recommendation that they confirm Dr. Horton to the
Sex Offender Classification Board. Second was by Senator Sorensen and
the motion carried by a voice vote.
GUBERNATORIAL APPOINTMENT:

J. Phillip Reberger to the Judicial Council

Mr. Reberger thanked the Governor for his confidence and the nomination to
succeed Nick Ifft on the Judicial Council for a 6 year appointment. He also
expressed thankfulness for the freedom to “disagree on many things in this
nation without being disagreeable.” He told the committee that his resume
was a simple one as he was born and raised in Caldwell, went to the
University of Idaho and within a 24 hour period of time, graduated from
college, married his wife, Nancy, and was commissioned into the Navy. He
worked in Washington D.C. with the Republican National committee, and then
was campaign manager for Senator Harry Byrd, of Virginia, before moving to
Idaho to be campaign manager for James McClure in 1978. He was the Chief
of Staff for Senator Steve Symms, then Senator Kempthorne as well as
Governor Kempthorne, until this time last year, when he retired from State
service and joined a consulting firm on a part-time basis with Pat Sullivan. As
to how these experiences would serve as qualifications for a public position
on the Judicial Council, he felt they would complement the prospective of the
other highly capable members of the Judicial Council.

The duty of the council is to submit to the governor the names of qualified
persons for the office of the Justice of the Supreme Court, judge of the Court
of Appeals, or District Judge, one of whom shall be appointed by the
Governor. The Council also recommends the removal, discipline and
retirement of judicial officers, including magistrates and such other duties as
may be assigned by law. (See attached #2)

Mr. Reberger told the committee that the council’s most visible responsibility
is to nominate members to the Supreme Court, appeals court and district
court, however, it has been his experience on the council that most of the
time is spent addressing complaints about the judiciary. Those take a great
deal of time and are very important. People who file complaints are very
interested in seeing that an investigation is done, so the complaint is heard
and then the council works with the judge.

There have been questions raised by others as to the extent of his various
public service assignments, and responsibilities in the volunteer capacity. He
was blessed by parents who encouraged him in his interests in being
involved, and it probably peaked in 1952 when he was the “I Like Ike” child in
grade school, and was on the steps of the capital when General Eisenhower
came to Boise to announce his candidacy for the office of the president. His
wife encourages him to be involved, and is also a ful-time volunteer. He wants
to be involved, likes to be involved, and those experiences have broadened
his

prospective.

He made reference to the “elephant in the room”, commenting that “there is
one in the room today, and that is University Place at Boise, as opposed to
University Place Idaho Falls, or University Place Post Falls”. He said he
wanted to address the questions on University Place, saying “If we had the
benefit of hind sight, we could do really well in a lot of areas, but in most
situations we don’t have that benefit.” He firmly believes that University Place
was, is and will be a valid concept. There have been extensive, thorough
considerations, and deliberations over a long extended period of time, by
many entities, including the legislature. And all of those entities came to the
same conclusion, that University Place would proceed.



He explained, “My role wearing hats as Governor’s Chief of Staff, a member
of the Capitol City Development Corporation Board, a member of the Idaho
State Building Authority Board, and during some of that period a member of
the University of Idaho foundation, was as a participant, active and
interested.” He emphasized, ” but not once, not one single time, did my
participation or my vote decide the issue. Collectively those issues were
decided by many members of those entities.” He took exception to the
classification that University Place is a failed project. One-third of the project
will be completed this year for the Idaho Water Center, which houses the
Idaho Dept. of water resources, US Forest Service and the University of
Idaho. Over time, that will prove to be an unique and innovative center for
water issues, which are the most important issues for this state. Another third
of that entity is the potential home of the Idaho State Health Sciences, but
that decision rests with Idaho State University. The other third sits on the shelf
but on the shelf over very valuable property in an area of this community that
is one of the most dynamic growing economic areas, the courthouse corridor,
which over time will prove to be a very beneficial area for the state”.

Mr. Reberger continued telling the committee that It has been said “I didn’t
tell everything that I knew” and the reaction of my friends and my wife, were
‘what else is new, Phil never tells everything he knows.’ That may be due to
my training in the Naval Reserve as part of the intelligence community that
dealt with classified information. In this case it was not classified. At this time,
I had access to information at the same time as everyone else with regard to
University Place and that information was provided for decision making over a
long term for this project.”

He made reference to the Prince report which he said “is nearly a million
dollars worth of information and a 100 pages, “and if a search is done for my
name in that report, there will be a hit of 3 times, so if I was a key factor in
this, you would think my name would be in there more.”

He then told the committee that he was happy to answer any questions.

Senator Darrington
started the questions by asking Mr. Reberger, “Are you
prepared to make the time commitment necessary to not only spend the time
in meetings, do the research necessary ahead of time with the paperwork you
have to effectively serve on the Judicial Council?” Mr. Reberger replied, “Not
only am I prepared, since my appointment to the Commission I have spent
that time. I find it a fascinating process. It does take quite a bit of time, but it’s
nice to be retired from state service so I can take that time.”

Senator Darrington followed up with “Do you think you have any greater or
lesser conflicts serving on the Judicial Council because of your service on
other boards than we in the Senate do serving in the Senate while we serve
on other boards, some of which are appointed by the governor?”

Commenting on the good analogy that the Senator made, Mr. Reberger
responded that “It seems to me that those who get involved in public service
get the bug and tend to get involved in lots of things. I think that´s a positive
situation, and I think it brings greater perspective and experience.”

Senator Lodge asked, “What do you think makes a good candidate for a
judicial position?” to which Mr. Reberger answered, “I have had the
opportunity to participate on two separate panels and my perception has
changed. I have learned that each of these candidates who comes before the
Judicial Council brings some unique perspectives and experiences which
probably aren’t in our minds before we start that process. I want to know their
attitudes and their approach to the Constitution. But I’ve also learned that
their perspectives on how they approach the issues, and their experience is
very important. I’ve learned about that and I’ve considered that before making
a decision.”

“You’re close to our present sitting Governor”, Senator Lodge commented,
then asked “How would that impact your decisions on the Judicial Council?”
Mr. Reberger replied, “My relationship over a long period of time with the
governor is well known. However, number one, I know the governor well
enough to know that he will not attempt to influence my work on the Judicial
Council. However, should that unlikely event take place, I would remind the
Governor and anybody else that Judicial Council does not take that direct
intervention. There’s a distinct process to be followed, and I will follow that
process.”

Senator Lodge mentioned that she had looked at the Prince report, and
searched for Mr. Reberger’s name, and wondered why he was not
interviewed for that report. Mr. Reberger knew of no reason for that, except
the deputy Attorney General had a process to talk to those who were a key to
the report.

Senator Burkett commented that one important function of the council is
discipline and said, “I want to know how you see your role on the Judicial
Council with respect to discipline and investigations of judges, and removal of
judges.”

Mr. Reberger replied, “The procedures of the Judicial Council are pretty well
set. If there a complaint, it is examined by the executive director. He makes a
recommendation which is reviewed by the Chief Justice. That information is
then forwarded to each council member with a recommendation, then the
council members individually indicate their recommended course of action.”

“I think the council is an important safeguard between the executive branch,
which is the Governor, and the Judicial Branch, the Courts,” commented
Senator Burkett then asked, “Do you agree that separation of powers is a
principle function of the Judicial Council?” to which Mr. Reberger replied, “The
council and their procedures are set up so there is that separation.” Senator
Burkett then responded, “I would suggest that there exists a perception that
you’re the governor’s alter ego. My question is, whether that perception is true
or not, do you believe it serves the purposes of the Judicial Council, the
purposes of separation of powers, to have a person on the council who is
perceived as the governor’s alter ego?”

Mr. Reberger replied, “Perceptions are not necessarily fact. Only in
campaigns do perceptions become facts. This is reality.” He feels fairly
confident, certainly among the members he serves with, that they will not
accept that perception, but would agree that the council operates with a great
deal of independence of judgment and action. Senator Burkett then asked,
“With your credentials, and the level of involvement at the executive side,
does this create a structural barrier to that central purpose of Judicial Council
to retain separation of power?” Mr. Reberger answered, “Yes, that separation
is there. No, it doesn’t present a problem to me.” Senator Burkett followed
with “Given the fact that you have influence on the executive side of
Government, do you have a plan that can help remove the influence you have
on the executive side of government, particularly in the Governor’s office, with
appointing and removing judges? Do you have a plan to remove the influence
you have on the executive side from your deliberations on the Judicial
Council. Mr. Reberger answered “I have attempted to point out that the
deliberations on the Judicial Council are contained by the procedures and
processes involved, other than complaints going into the council and the
judges nominations, there is no one else involved in the process. Any
attempt to do that is deflected away.”

Senator Burkett continued by asking about a question he and his
constituents have, with the power and influence Mr. Reberger has already
with regard to his business, and his experience and influence at the federal
level, “Why is it you want to invade the judiciary, as well? What’s the goal
here?”

Mr. Reberger replied, “With all due respect, I have a little difficulty with some
of the terms you used. I would have to take some exception with the ‘power’
and ‘influence’ and ‘invasion’ of the judicial system. I think the Judicial Council
has three public members. My role would be as a public member.”

Senator Burkett then commented, “One of my principle concerns is that the
potential with your appointment is that you have violated an Idaho statute, the
we have in front of us today. With regard to that, you have indicated that you
are a member of the Republican Party, and I believe that the document
indicates that Ms. McKinney is a Republican as well, and Mr. Bill Parsons
indicates that he is a Republican and Judge Smith was previously a member
of the Republican party, is that correct?” Mr. Reberger agreed that Judge
Smith was a State chair of the Republican party. Senator Burkett then
countered, “By my count there are essentially four members with Republican
credentials on the council.” Mr. Reberger responded that, “I’m not in the
business of counting that. Two are appointees of the Idaho state Bar, and
those entities are classified. Far be it from me to get into the legalities of the
statute with two members of the bar on this committee. However, I am
informed that the judiciary members of the Judicial Council are considered
nonpartisan and the code of ethics require that they’re non partisan.”

Senator Sorensen, asked if Mr. Ifft whose place is being filled on the Council
was a Republican, and Mr. Reberger said he was. “It seems that all of the
discussions in the media have been centered on your integrity,” Senator
Sorensen said, then asked “My question is, do you believe that your integrity
has been compromised by all of this attention to University Place?” Mr.
Reberger replied, “Certainly my integrity has been attacked. But, I believe that
I can continue to serve and believe that I have served with the best of
intentions and will give it my best shot.”



Senator Marley asked Mr. Reberger if he could deliberate a little on how to
determine a candidate to become a judge, based on constitutional
interpretation and other important factors besides that. Mr. Reberger said
that he would be glad to try to expound on that. He hopes a candidate for a
Judicial nomination would have a passion for our Constitution and a strict
interpretation of it. He believes that the values of the citizens of this State are
supportive of a strict interpretation of the state and federal constitution, and a
demonstration of a passion would ensure that the Constitution would be
followed and those rights granted to our citizens. He is impressed with the
broad range of professions that the candidates bring to the process, and he
pays close attention to how they explain how they are motivated to be on the
Council.

Senator Richardson commented that he has followed the case of the
University Place, and found out about the Prince report. For several years,
his wife worked for Mr. Reberger ‘s staff, and they were expected to follow
the rules exactly with no variance, but right down the line and follow the rules
and steps exactly. Senator Richardson said he expects the same from Mr.
Reberger
. , then asked, ” Is there anything relative to University Place or the
Prince report that would preclude you from fulfilling this position. Mr.
Reberger
responded, “No, there is nothing that would prevent him from filling
this position.” Senator Richardson then commented that in the work he
does with the media, he is finding cases where “we are getting legislation by
litigation”, where the separation of powers is diminishing so much. The
Senator
asked Mr. Reberger “do you think your background experience
working with different administrations, and others would help or preclude in
selecting a jurist to move into a position to be selected by the Council?” Mr.
Reberger
said that question sounded similar to the earlier question of
Senator Marley
, so he would reemphasize that his view is that we should
keep the separation between the branches as firm and as bright a line as
possible and he would ferret out any potential nominee that would have a
view contrary to that.

Senator Bunderson, commented that it is valuable to have a complete and
open hearing on the issue of University Place and the allegations
surrounding it as it concerns Mr. Reberger, and said, “You have been less
than forthright in advising the governor of certain facts associated that you
had knowledge of. Had it been disclosed, to the appropriate entities, different
answers would have been reached. Senator Bunderson then asked Mr.
Reberger
, “As it relates to your confirmation, how do you feel about any
member of the Judicial Council that might have information about a matter
that comes before the council? What right do they have to not disclose that
information at some point? How far should a member go to make sure full
disclosure of any information is laid on the table before the matter before the
Council is resolved.”

Mr. Reberger replied, “You left an implication on the table that there was
something that was not disclosed, or an assertion to that effect. That is not
the case. Any information I had was also available to all the entities, including
the Governor. It was provided to the appropriate entities. In hindsight, we can
say, ‘Gee all this information now exists.’ Well, it never existed in one single
point in time or one single place. It happened over a long period of time over
a series of events. The practice on the Council is that each member
exercises a great deal of independence in approaching their duties on the
council and the deliberations as they see fit. Any member could choose not
to put something on the table. The deliberations I’ve participated in have
been pretty much no-holds barred. People take it very seriously; they want to
go over all of the issues that have arisen, and if they’re aware of something
that is relevant, my experience has been that it has been brought to the
table.”

Senator Bunderson followed with, “Somehow you may have conflict of
interest as serving on multiple boards, as far as University Place. You served
on the University of Idaho Foundation and Idaho State Building Authority.
The University of Idaho was going one direction and Idaho State Building
Authority was going another direction. Being on both of those boards,
illustrated to me that there was no conflict as you were supportive of the
resolution of the board, and in reading the report. You raised concerns to
others that the Building Authority Board was not going on and could not go
on with those costs that were incurred or contemplated.” He then asked, “Is
that a fair assertion as the Boards were going in different directions and you
were a conveyor of information from one board to another?” Mr. Reberger
replied, “That is a fair assertion, and if there was a significant role to convey
to each, it was imperative that we put as many facts on the table as possible
before proceeding with any decisions.”

Senator Bunderson commented from the Prince report that on March 27,
Gerry Wallace of University of Idaho, warned of risks of proceeding with
design ahead of financing and lease aspects being fully resolved. Senator
Bunderson’s opinion, is that is when problems occurred, with poor risk
assessment. He asked Mr. Reberger “What went wrong and could have
happened to prevent the failure that has occurred, and change the coarse of
action?” Mr. Reberger replied, “That is the 28 million dollar question. From
the University of Idaho Foundation point of view, their role was a temporary
role, which over time proved to be too long a time. They got into the project
without a viable way to get out, so they had to press ahead. If you had a
crystal ball, it could have helped avoid this. It happened over such an
extended period of time that it was hard to pin down that something different
should have been done. A lot of eyes and ears were focused on this with
various prospectives and the conclusions were essentially the same.”

Senator Bunderson concluded by stating “Things moved ahead with
anticipation of the revenue being there and there was no confirmation of the
provider of the revenue. People occurred costs that were not allowed and it
sunk the ship. A poor risk analysis was done and things got ahead of
themselves. If someone had focused on that, which is really the key, it would
have helped some of the problems and the assertions that were made against
your reputation.”

Senator Davis declined to ask Mr. Reberger any questions.

Senator Sweet asked for clarification of the differences of the judicial officers
being elected or appointed, as there are those who would like to see judicial
appointments or judicial elections and are there pros or cons tot he process.
Mr. Reberger responded that “Concerning the process of appointment which
goes through the Judicial Council with the Governor appointing, and the
elective process that occurs with the vacancy at the end of the term, as does
the re-elective process, I am comfortable with both approaches.” Most judges
are initially appointed and then stand for re-election. Since serving on the
Judicial Council, he is impressed with the way the Council was conceived, put
into statute, and has been functioning for now over 20 years and he has a
comfort level with the appointment process. He has also been involved with
the electoral process for many years and has abiding faith in the wisdom of
the electoral process.

Senator Sweet concluded with a comment that “The friends in the media
have commented upon the recent judicial elections and suggested that we
severely restrict the first amendment rights of the candidates in that process.
Mr. Reberger replied that “The ballot box is one of the strengths of this nation
and I would go to lengths to insure that it is always available.”

Senator Burkett asked in follow-up that according to University Place, he
would like to hear a promise that Mr. Reberger would NOT inform the
Governor of Judicial Council business, as that is the standard the members
of the Judicial Council would follow. Also, can Mr. Reberger not breach that
separation of powers? Mr. Reberger responded, “That is an easy one to
answer. Yes, the rules and procedures of the council would prevent him from
that interaction.”

Senator Darrington asked Mr. Reberger if this state would be well served
considering that many of those in our Judiciary, before going to the Judicial
Council, were involved in partisan politics to officially and by law take away
the non-partisan label that we give the Judicial people. Mr. Reberger
responded, that he hadn’t given it a thought, but that change comes difficult
to him. He felt that what we are doing in Idaho with the Judiciary right now, is
just fine. Disciplinary items that come before the Council, involve a small
minority, the rest are diligent and hard working individuals. He thinks it would
be preferable for the judiciary to be referred to as non-partisan rather than as
Republican and Democrat.

Senator Darrington pointed out that action would be taken on the
gubernatorial appointment at the meeting on Monday, January 26.
RS13529 Senator Davis presented this on behalf of the Uniform Law Commission , as
this legislation revises and updates Article 7 of the Uniform Commercial
Code, dealing with warehouse bills of lading and other documents of title.
MOTION: Senator Sorensen made a motion to print RS13529. Second was by
Senator Marley and the motion carried by a voice vote.
RS13557 Senator Davis also presented this legislation which revises and updates
Article 1 of the Uniform Commercial Code and makes Article 1 consistent with
other revised articles of the Uniform Commercial Code.
MOTION: Senator Sorensen made a motion to print RS13557. Second was by
Senator Lodge and the motion carried by a voice vote.
RULES REVIEW – IDAHO STATE POLICE
Ann Thompson Cronin presented these rules and said there had been no
comment of adverse or support of interest. The changes concern licensed
premises. In the event of loss or the move of the licensed premises, the
licensee has ninety days to secure and occupy a new premise in which to
display the license. An additional sixty days may be granted by the Director,
upon petition by the license holder. A restaurant is identified as having an
established menu identifying the individually priced meals for consumption,
food and service and preparation occurs on the premises by establishment
employees, and that equipment usually and normally found in restaurants are
located on the premises of the establishment. The licensee must
demonstrate though appropriate records that the establishment is advertised
and held out to the public as primarily a food eating establishment OR that at
least 40% of the purchases are derived from purchases of food and non-alcoholic beverages.



Senator Lodge expressed concern about the amount of time that is given for
a new premise to be ready to occupy. She felt it takes more than five months
if an establishment is burned to do the clean up. This process is penalized by
the time of 90 days. Ms. Cronin agreed that this is not adequate time for
rebuilding, but seeing that plans are underway would be a good reason for
extending the time.

Senator Lodge was still concerned about this time frame being in a rule and
possibly penalizing a business. Senator Bunderson was concerned about
the value of the license being marketable, for example if a business was
owned in a lesser market and then moved to a better market, would this be
allowed under rule. Ms. Cronin responded that it must be in the same district.



Senator Lodge asked who had input in the establishment of 40%
consumable purchases and was told there was a roster available of who had
attended the meeting.

IDAPA 11

11.10.01

Rules Governing the ILETS

Idaho Law Enforcement Teletypewriter System

Ms. Cronin said there were a few changes, but most are updated into current
tense. This concerns who is using the system, the firewalls, and the update
of citations for national policies. There has been no concern for these
changes.
11.11.01 Mike Becar, of the POST academy explained that the word “shall” was being
changed to “must” to make the language more plain. Also, the certification of
a juvenile probation officer was being added. This rule also makes reference
to a full eye examination being administered by an optometrist to any
applicant whose vision in either eye is twenty/one hundred fifty or worse.

Also section 071.01 is for a closed campus, requiring the students to stay in
the building, but a hardship can be granted, as classes can be recorded if one
is missed, however, the firearms section cannot be recorded, and must be
made up. They have never had anyone miss enough classes to be
disqualified from POST.

MOTION: Senator Davis made a motion to approve the rules of the Idaho State Police,
except for section 010-02 concerning licensed premises. Second was by
Senator Sorensen.
Discussion: Senator Bunderson asked for exceptions to the rule to be prepared. Ms.
Cronin
deferred to Lt. Bob Clemens, ISP Beverage Control who said the
licensee could appeal for an extension because if they lose the premise, they
don’t have an option to display the license.
VOTE: The motion carried by a voice vote to accept the rules except for 010-02.
ADJOURN: The meeting was adjourned at 3:10 p.m.






DATE: January 26, 2004
TIME: 1:30 p.m.
PLACE: Room 437
MEMBERS
PRESENT:
Chairman Darrington, Vice Chairman Lodge, Senators Sorensen,
Richardson, Bunderson, Davis, Sweet, Marley, Burkett
MINUTES: The minutes of January 23 were prepared for review, but as they are quite
lengthy, will be held until the next meeting to give committee members a
chance for review.
Committee Vote: Gubernatorial Appointment of J. Phillip Reberger
Motion: Senator Davis made a motion to recommend to the full Senate, the
confirmation of J. Phillip Reberger to the Judicial Council. Second was by
Senator Richardson.
Discussion: Senator Burkett opposed the motion and passed out a letter from the
Chair of the Idaho Democratic Party, (See attached #1) and a biography of
William Parsons, who stated his political affiliation as Republican and
asked that they be made part of the record. (See attached #2) Senator
Burkett
proceeded to state that Helen McKinney is a Republican and
Judge Smith was a chairman of Bannock County Republican party before
he was appointed to the judgeship. He feels that the appointment of Phil
Reberger to the Judicial Council would bring the number of Republicans to
four. He explained, “The reason why the statute has this requirement is to
protect the third branch of Government, the judiciary. The purpose of
setting up the Judicial Council in 1967 was to insulate the Governor’s office
from these appointments, and have that done by an independent body to
create that level of independence of the Judiciary.” He thinks this is a very
important provision and is there for a purpose, and he would like to see the
committee stand for the independence of the judiciary and the fact that it
should be kept partisan and equal balance of this particular council.
Senator Burkett feels that this appointment is in violation of the Idaho
Statute for that reason and we cannot recommend that the Senate consent
to an appointment that is in violation of the statute which states:

“Appointments shall be made with due consideration for area
representation and not more than three (3) of the permanent appointed
members shall be from one (1) political party.” As Mr. Parsons was
appointed July 1, 2003, then the appointment of Mr. Reberger on
September 18, 2003 would be the appointee that would be in violation.



Senator Burkett felt “that this is a political issue, perceptions are
important, that the purpose of the statute is to remove some of this power
from the Governor and make sure we had qualified people before they get
to the Governor for appointment. For those reasons, I think that this
appointment is too close to the Governor for a body that is supposed to
provide that insulation and I would be voting no.”



Senator Darrington clarified that the Chair was the one who set the time
for the appointments according to when those being considered were
available and for no other reason. Mr. Reberger is in town and could come
anytime, however, Mr. Parson who is out of town needed to be scheduled
at a later time.



Senator Davis commented that “the nomination of Mr. Reberger does not
violate the Idaho statute and to suggest ,as the Minority part is suggesting
and in written communication that I have received from Senator Burkett’s
law partner Carolyn Boyce, chair of the Idaho Democratic Party, that
violates the Idaho Statute is incongruous with fact.” He cited the example
of the Minority party chairman, Senator Stennett, the Minority Leader, who
served as chair of the Young Republicans at Idaho State University. “This
serves to illustrate that individuals can go through personal changes and
adopt the political philosophy that they are either required to accept or
choose to accept. As Senator Stennett chose to embrace the politics of
another party, likewise Judge Smith chose to accept the mandate of the
judicial canons of ethics and chose to become non-partisan. ”



Senator Davis was in attendance when Judge Smith was sworn in as a
judge and said, “I remember Judge Smith’s promise to this state, that he
was no longer a member of the Republican party but was going to
embrace the role and responsibility that he had to be non partisan. To
suggest now, that somehow this Governor or the nomination of Phil
Reberger, or the continued service of Judge Randy Smith violates statute
ignores the various realities that we experience in politics. In a recent
ceremony he was honored by his colleagues for his judicial independence
and integrity. They don’t see him as a Democrat or Republican, but they
see him as someone being true to the values of Judicial canons of ethics of
being independent. Senator Burkett quoted Mr. Reberger as saying that
Politics is reality. That misquotes what Mr. Reberger said, that is the quote
that Mr. Burkett probably wanted him to repeat.” Senator Davis then
referred to the minutes which he said were consistent with his memory,
and called attention to page 4 in the third paragraph where Mr. Reberger
replied “The council and their procedures are set up so there is that
separation.

Senator Burkett then responded, ‘I would suggest that there exists a
perception that you’re the governor’s alter ego. My question is, whether
that perception is true or not, do you believe it serves the purposes of the
Judicial Council, the purposes of separation of powers, to have a person
on the council who is perceived as the governor’s alter ego?’ ”



Senator Davis continued to say, that he understands this to be the
principle thrust and argument of Senator Burkett today in opposition to his
motion. However, he felt Mr. Reberger’s quote was significant. Mr.
Reberger replied, “Perceptions are not necessarily fact. Only in campaigns
do perceptions become facts. This is reality.”



Senator Davis recognizes an attempt to make this a campaign but, based
on Mr. Reberger’s affiliation and experiences-University Place Boise,
aside, and after reading all the notes and attachments, he said he still
didn’t know what Mr. Reberger’s involvement was. However, he sees
nothing in the report that he says, “causes me any angst. Mr. Reberger is
a person of the highest integrity and has never been found to do anything
but keep his word.” Recognizing the politics of the opposition to the
motion, he urged the committee’s support.



Senator Marley spoke in opposition to this appointment. He had asked a
question in the committee on Friday, and was told to find an answer. It is
his understanding now that if you hold another office, except a judge or in
the judiciary, or any other office of profit under the State, then you are not
eligible to serve on this committee. His concern is not with Mr. Reberger’s
qualifications, or with his integrity, or ability, which are of the highest
standard. Senator Marley commented, “But not only is there the political
issue of the balanced Council, but he also serves on the Idaho State
Building Authority (ISBA) and because that position receives an
honorarium above and beyond expenses, that qualifies as reason not to be
acceptable for this particular position.” Senator Marley told the committee
that he also found out that ” if the Judicial Council is balanced and that
doesn’t include judges, then it is impossible because there are six
members. If three are eliminated and it doesn’t matter what party they are
in, that only leaves three and it is impossible to have a balanced Judiciary.
So, I think the law meant to include the judiciary or the ones appointed by
the Bar Assn. needed to be bedded by party and according to the sheet,
they are bedded by party. I have a hard time saying that someone was a
party member. The issue is, do we have 3 Republicans and 3 Democrats
on that committee. My concern with Mr. Reberger’s appointment, that as
long as he is serving on the ISBA, he should not be serving on the Judicial
Council.”

COMMITTEE

VOTE:

Senator Darrington called for a vote of the committee on the appointment
of Mr. Reberger to the Judicial Council. Motion carried by a voice vote.
RS13524C1 Senator Laird Noh presented this legislation that would add a new section
to Idaho Code to specify unlawful actions to aquiculture operations and
provide punishment for performing these actions. These areas are
vulnerable to sabotage and it only takes a small quantity poured into an
input stream to spoil all the fish in the stream.
MOTION: Senator Sorensen made a motion to send RS13541 to print. Second was
by Senator Burkett and the motion carried by a voice vote.
RS13659 Senator Joe Stegner presented this legislation brought to him by two
Principals in his district. This will make it a misdemeanor for a parent or
guardian to knowingly fail to provide an education for a child. Also the
references to the Youth Rehabilitation Act are replaced by Juvenile
Corrections Act.
MOTION: Senator Marley made a motion to send RS13659 to print. Second was by
Senator Sorensen and the motion carried by a voice vote.
RS13663C1 Heather Reilly, representing the Idaho Prosecuting Attorneys Association,
presented this legislation that will amend the Domestic Violence Statute to
qualify a substantially conforming out of state domestic violence conviction
for purposes of enhancing subsequent crime of domestic violence in Idaho
MOTION: Senator Sweet made a motion to send RS13663C1 to print. Second was
by Senator Sorensen and the motion carried by a voice vote.
RS 13666 Senator Burkett presented this legislation to revise the definition of
terrorism to insure it does not include misdemeanor acts and insure it does
not include acts of protest of civil disobedience that are not intended to
endanger human life.
MOTION: Senator Marley made a motion to send RS13666 to print. Second was by
Senator Darrington and the motion carried by a voice vote.
RS 13442 This legislation of Senator Davis’s is to maintain insurance for the parent
or guardian of a minor child that operates a motor vehicle, even though
coverage for the minor is terminated. There have been instances when a
minor has had their drivers license suspended that the insurance provider
has terminated all insurance coverage.
MOTION: Senator Sorensen made a motion to send RS13442 to print. Second was
by Senator Burkett and the motion carried by a voice vote.
RS13717C1 Pam Eaton, Idaho Retailers deferred the speaking of this bill to Dean
Heyl,
who represents the Direct Selling Association. DSA is the national
trade association of the leading firms that manufacture and distribute
goods and services sold directly to consumers. An example would be a
home product demonstration party. This proposed law would create a
clear and specific definition of an illegal pyramid promotional scheme to
protect Idaho residents from become potential victims.
MOTION: Senator Sorensen made a motion to send RS13717C1 to print. Second
was by Senator Sweet and the motion carried by a voice vote.
RULES REVIEW: Division of Veteran’s Services – Richard W. Jones, Administrator of
the Idaho Division of Veteran’s Services.
IDAPA 21

21.01.01

This docket implements changes to Rules Governing Admission,
Residency and Maintenance Charges in the Idaho State Veterans Homes
and Division of Veterans Services Administrative Procedures. In the past,
the residential care applicants were required to have pre-admission
physicals conducted by a VA Medical Center physician. This rule would
allow any licensed physician to conduct these physicals. Section
0301.300.01 and 02 would allow residential care residents to operate a
motor vehicle while residing at the Boise Veteran’s Home if they are
licensed to do so. Also, under this section, there are no longer multiple
penalties for non-compliance with the Idaho Division of Veterans Services
rules. There is only one and that is Discharge. Residents can be
discharged immediately if an emergency exists or with notice for certain
acts that are listed in the rules. Concerning the penalty for residential and
nursing care residents, when certain acts are committed, the administrator
determines that a resident has committed one or more of the acts, the term
“will” has been changed to “may”, at the recommendation of the Deputy
Attorney General. This was done to give the resident the right to appeal.
There was some concern among the committee members about this term
change, and Mr. Jones said he could obtain additional information on this.
Senator Sorensen asked if the committee could wait until the next
meeting to answer the questions that she and Senator Marley had
concerning this term. This rule will be voted on at the next meeting which
will be held January 28.



The time frame for disposal of assets preceding application for residency
has been changed from one year to thirty-six months to comply with
Medicaid.

IDAPA 21

21.01.04-0301

Mr. Jones presented this pending fee rule for governing the Idaho State
Veterans Cemetery to establish charges for interment, disinterment and
reinterment in the State Veterans Cemetery. It is necessary to change the
sizes for remains containers to enable two containers to occupy one niche
so that spouses who elect to have their remains interred together may do
so. The Dept. of Veterans Affairs will pay interment fees for eligible
veterans. Requesting parties will pay disinterment and reinterment fees.
MOTION: Senator Marley made a motion to approve the rules governing the Idaho
State Veterans Cemetery. Second was by Senator Sorensen and the
motion carried by a voice vote.
Adjournment: Meeting was adjourned at 2:35 p.m.






DATE: January 28, 2004
TIME: 1:30 p.m.
PLACE: Room 437
MEMBERS
PRESENT:
Chairman Darrington, Vice Chairman Lodge, Senators Sorensen,
Richardson, Bunderson, Davis, Sweet, Marley, Burkett
MINUTES: The minutes of January 23 will be held until Friday, January 30, as Senator
Richardson
found there was more information that he felt should be
included. Senator Sweet made a motion to accept the minutes of January
26 as written. Second was by Senator Lodge and the vote carried by a
voice vote.
RULES
Clarification:
Richard Jones, Administrator of Veteran Services, returned to the
committee to clarify the change in Docket 21-0101-0301-350.02. from “will”
to” may” when and administrator determines that a resident has committed
one or more act , the resident may be given notice in accordance with
subsection 982.03 and discharged from the Home. Mr. Jones explained that
the term “will give notice of discharge” may not be appropriate, as the
resident might need to have treatment, rather than be discharged. The word
needed to be taken in context and entirety to be clarified. Senator
Sorensen
and Senator Marley expressed approval for this clarification.
MOTION: Senator Sorensen made a motion to accept the rules of the Veteran’s
Services. Second was by Senator Lodge and the motion carried by a voice
vote.
RS13648C1 Chief David Moore, Blackfoot Police Department presented this legislation
that concerns what is referred to as “video voyeurism” and includes
instances of photograph, film, video or digital recording of persons without
their consent, while in a place where the person has a reasonable
expectation of privacy, or in a public place when the person has taken
reasonable steps to shield intimate areas from public view, for the purpose of
arousing or gratifying the sexual desire of the person making the recording
or any other person. These instances are increasing both regionally and in
Idaho and currently nothing in statute defines these acts as crimes, because
there is no touching. This proposal will define the crime of video voyeurism
as a felony, and require persons convicted of video voyeurism to register as
sex offenders.
MOTION: Senator Sorensen made a motion to send RS13648C1 to print. Second
was by Senator Richardson and the motion carried by a voice vote.
Robert Aldridge presented legislation before the committee for a print
hearing. The following is an explanation of this legislation.
RS13728-To prohibit appointment of a convicted felon as guardian or
conservator except upon conditions specified.
RS 13739C1-To authorize appointment of temporary and emergency
conservators and to govern conditions of an appointment
RS13740- To provide adoption of the uniform estate tax apportionment act to
specify rules applicable to the apportionment by will or other instrument
RS13741– Relating to powers and duties of a conservator to clarify control by
a conservator of title to the property of the protected person
RS13742- Relating to matters of probate to further define terms
MOTION: Senator Davis made a motion to send RS13739C1, RS13740, RS13741,
RS13742, RS13767, RS13790 and RS13791 to be printed. Second was by
Senator Sweet and the motion carried by a voice vote.
REPORT: IDAHO STATE POLICE
Colonel Dan Charboneau, Director of Department of Idaho State Police
appeared to give an annual report to the committee on the activities of the
Idaho State Police. He introduced his staff, Kevin and Ann Cronin and
thanked Senator Darrington and Senator Bunderson for their work on ISP
issues over the summer. He said the Idaho State Police is optimistic and
they believe in a better future. When he took over the leadership a year ago,
he believed in three words: Teamwork, Opportunity and Partnership. Some
of the successes are the Drug Endangered Children Program, that helps
remove children from danger when meth labs are being cleaned up. In the
past, these small victims were overlooked, but now they are handed off as
quickly as possible to health care workers. When meth labs are in operation,
the meth and vapor get released in the atmosphere, then it dries and falls on
flat surfaces. Children ingest these chemicals through hand and mouth
interaction. As there is no cleanup standard for meth labs, children are
endangered by exposure to these chemicals. A better job is being done now
to take care of children and put them in better environments. This program
needs to be made standard statewide, and if so, Idaho would be the first
state in the nation to make this protocol used statewide. The good news is
that the meth labs are down, but the bad news is that the import continues at
an alarming rate. They are reaching out to the Spanish communities and
there is a combined agency program called “Meth is our Neighbor” which is
focusing on education and partnership.



The department is looking at a “slick top project” which means that the light
bars are removed from the patrol cars, and this works more effectively in
picking up aggressive drivers. They are pursuing a grant to show the
effectiveness of the differences between the “slick top” and the “light bar”
cars. Colonel Charboneau has encouraged his officers to use a “Look,
Listen and Think” technique during traffic stops. If they use the laws in their
tool box to resolve situations, most likely by asking questions, they can feel
when something is not right. One situation he shared with the committee
was when a car was stopped, and through questioning the driver found out
that the “grandma” that was in the passenger seat was just a decoy. The
driver stammered when asked what his grandmother’s name was. Drugs
were then found in the car when searched. This success was due to the
officer using the “look, listen, think” techniques.

The Department is at a cross roads with the recruitment and retention issue.
Due to the hold back last year, 14 experienced officer positions were lost
due to the pay issue. At the present time, there is no firearms exam officer,
as the training process is two years. In the last year, the DNA people are
down as there is no second string and it will be 6 months before a DNA
specialist is trained. Idaho is competitive for the first to third year, and then it
stops. Other agencies offer incentives for 5 to 7 years. He feels they need a
pay plan to support his troops.



He told the committee about the State Interoperability Council. The FCC is
forcing them to move from their current frequency to a higher band of 700 to
800 Megahertz, which should be accomplished by 2018. Radio stations are
also required to change to half their normal bandwidth. Idaho is a pilot for an
initiative program that would enable people to talk to each other, which
would alleviate problems such as those that occurred during 9-11 in New
York. Idaho is lucky to have a state of the art microwave system, which will
be a good base for the inoperability system. The microwave backbone in
Idaho is the greatest thing they have right now and will let Idaho hook up
with Utah.



Colonel Charboneau addressed the safety issue of his officers, and reported
that they all had the “Second Chance” ballistic vests that have been reported
to be inferior in quality. The ISP stopped using those vests and found
$158,000 to change out those vests, increasing the protection level to a
higher level.



He expressed appreciation for his officers and said even though they had a
rough two years, the day to day commitment is remarkable. They cannot
turn away from needs, but they can do more with less. He told the
committee that geese fly in a V formation as they can increase their distance
by 70% that if they fly alone, and they honk in encouragement. He likened
this to his officers, who care for each other, share leadership and are
focused on getting the job done. He has challenges, but remains optimistic
that ISP is a great team that looks for opportunity and partnership, and he
was proud to stand before the committee as their leader and partner.

Senator Lodge expressed gratitude for the officers that met with her and
helped her understand the Department and their needs. She feels that the
troopers should get a raise on a 3 year schedule. Something needs to be
done about their pay as fine officers are being lured away. Colonel
Charboneau suggested the committee members view the web site and read
the ISP chronicle, at www.isp.org
Adjournment: Meeting was adjourned at 2:35 p.m.






DATE: January 30, 2004
TIME: 1:30 p.m.
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 23.
Second was by Senator Lodge and the motion carried by a voice vote.
Senator Burkett made a motion to approve the minutes of January 28.
Second was by Senator Marley and the motion carried by a voice vote.
GUBERNATORIAL APPOINTMENT
William A. Parsons – appointment to the Judicial Council to serve a
term commencing July 1, 2003 and expiring June 30, 2009.
Mr. Parsons introduced his wife of almost 50 years, Beverly, to the
committee and expressed appreciation to the Bar for his appointment to the
Judicial Council. He is from Burley and has practiced law there since 1958.
He has had a good practice and has four partners. He belongs to the
American College of Trial lawyers by invitation and is a member of several
civic organizations. He has been able to sit in on the process of selection of
2 judges in the 5th district and 1 in the 6th district. He feels good about the
selection process of the Judicial Council.



Senator Darrington asked Mr. Parsons if he had the time to serve on the
Judicial Council to which he responded that he had no problem with time at
all and would devote whatever time it took. The bulk of his time is taken by
reading material. He explained that the members receive a large packet of
complaints against the judges. There is an opinion by the Chief Justice and
they need to agree or disagree with that opinion after they have read the
complaints.



Senator Burkett asked Mr. Parsons if he was a Republican to which he
replied that he was.



Senator Richardson asked after spending six months on the Council, could
he see areas that need to be improved in the Council. Mr. Parsons felt that
there was nothing that he would recommend changing. He is not for
statewide elections, and feels that judicial appointments are much better.
There are so many qualified people applying, it is difficult to trim down the
numbers. The Senator also stated that Idaho was seeing more and more
tendency to “legislate by litigation” and asked if that was an area of concern.
Mr. Parsons replied that the Director of Idaho Agriculture spoke yesterday at
the economic symposium, that was one of his main topics that the courts
are into the legislative matters and staying away from what their third
function of government was. He suspects that in the environmental areas it
could happen, but he doesn’t see that in Idaho yet



Senator Bunderson asked if he had a knowledge of any external influence
seeking to modify any finding or decision to persuade them in the selection
process. Mr. Parsons had not heard of anything that was done to persuade
any others and it did not apply to himself. He said, they all recognize that if
there was an issue before them, they just don’t have a conversation with
anyone who would try to persuade them so they don’t have outside
influence. They can preserve the confidentiality and argue in the room, but
when they leave there, they are united and he doesn’t see any outside
influence.



He told the committee that the process is not public, but the conclusion is.
When the candidates are selected to be submitted to the Governor, the rule
is that they don’t’ talk about it, until the Governor has received the
recommendations of the Council. Then they can say who they
recommended but not why. The Governor has never tried to persuade them
to make a different recommendation.



Senator Davis commented that the prior nominee for the Council was
accused of being too close to the Governor. He asked if Mr. Parsons had
any sense of this in advocating applicants to make the short list. Mr.
Parsons
answered that the nominee, Mr. Reberger, has taken part in one
interview since he was appointed. Mr. Parson’s dispelled the rumor that Mr.
Reberger
was a conduit to the Governor. We feel confident that we can talk
and leave it in the room. Senator Davis asked if there was a feeling of
partisanship by any of the current serving Council members indicating any
point of view and Mr. Parsons replied that he didn’t see any evidence of that.
He said it doesn’t make any difference what they are, and unless someone
told him so, he wouldn’t know what party they belonged to.



Senator Sweet asked him to expand on the appointment process of judges
or justices in Idaho versus the election. Mr. Parsons responded that the
process of going through the council, with the application interviewing
process and recommending to the Governor is a good one. We get quality
candidates, and you may not get this quality if they had to run on a statewide
basis. A lot of candidates would not be known in another district. “To run
an election is difficult,” he commented, ” This process screens the people
with their applications and with the interview process, it is the best of all
worlds.” Senator Sweet asked about the separation of powers and what we
would be looking at in Idaho in the future. Mr. Parsons responded that “if
you elect judges, you are more likely to get the influences from pressure
groups that you don’t get through this process, and we have to be vigilant
about that in Idaho, as we hear about it through he Federal system.”



Senator Marley was curious about Mr. Parson’s membership in the Theron
Ward Inns of Court. He was told that this is a national organization that
brings lawyers together for continuing legal education and the focus of the
organization involves experienced lawyers mentoring new lawyers. They
have different inns of court around the state, there is one here in Boise and
the inns are named for some particular person around the area. In this case,
Theron Ward was a outstanding judge in Twin Falls in the 5th district. They
meet 6 times a year with educational programs, ethics, and continuing legal
education, and it isn’t just a social gathering, it is a educational process.



Senator Marley asked if this would be available to someone like himself,
who is a High School Government teacher, and was told that most of the
time, it is designed for lawyers, and mainly to mentor younger lawyers so it
would not be open outside the legal profession.



Senator Burkett asked how Mr. Parson’s sees the role of the Judicial
Council, at either proposing or making recommendations regarding Judicial
elections and taking steps to prevent or limit the current election of the
Supreme Court Judges. Mr. Parson’s replied that he didn’t think the Judicial
Council had anything to do with that, as currently the process is that is how
they fill vacancies if there is one in the term, and the Judicial Council needs
to maintain their independence for that function and they should not be
activists.



Senator Darrington told the committee that they would vote on the
confirmation on Monday at the committee meeting.

RS13564C1 Alice Koskela, deputy prosecutor for Kootenai County presented this
legislation in conjunction with Bill Douglas, the Kootenai County Prosecuting
Attorney. This will result in statewide recognition for extraordinary acts of
valor and heroism by firefighters and police to be nominated for the “Law
Enforcement and Firefighting Medal of Honor”. This was presented at an
earlier meeting but there was concern as to the cost of the medals. Ms.
Koskela
said the cost of the medal is $90.00 and will not be borne by the
state but by the agency whose officer or firefighter is honored with the
award.
MOTION: Senator Bunderson made a motion to send RS13564C1 to print, but asked
that the Statement of Purpose be changed adding the word “Idaho” to keep it
consistent with the term in the legislation. Second was by Senator Lodge
and the motion carried by a voice vote. The Statement of Purpose was
changed before being sent to print.
RS13778 Chris Bray told the committee that the decision regarding a proposed
relocation of children is one of the most difficult and complex decisions a
family law judge has to make. This legislation that provides eight factors
which a family law judge may consider in doing so. Consistent with recent
Idaho Supreme Court decisions, these factors create a balanced standard
for judicial decision making. Litigation throughout the State of Idaho may be
reduced when parents have statutory standards to follow. These factors
were derived from the Model Relocation Act created by the American
Academy of Matrimonial Lawyers.
MOTION: Senator Marley made a motion to send RS13778 to print. Second was by
Senator Sorensen and the motion carried by a voice vote.
RS13812 Ron Messler, Investigator with Idaho Dept. of Corrections presented this
legislation which is to provide authorized representatives of the Department
of Correction with an enhanced ability to apprehend parole absconders.
Currently, representatives of the Department do not have the ability to issue
a subpoena to compel the production of documents. The documents sought
would be those containing information which would be helpful in locating
parole absconders such as records containing addresses and phone
numbers etc. The legislation would allow authorized representatives of the
Department of Correction to issue a subpoena “duces tecum” to compel the
production of documents rather than verbal or oral comments. Failure to
comply with the subpoena may be punishable as contempt.
MOTION: Senator Sorensen made a motion to send RS13812 to print. Second was
by Senator Richardson and the motion carried by a voice vote.
RS13554C1 Kathy Baird, Management Assistant, SOC Board presented this legislation
that will remedy two procedural deficiencies related to violent predator
designations.

Federal probation officials have expressed a desire to refer federal
probationers residing in Idaho to the Sexual Offender Classification Board for
review for violent sexual predator designation. Interpretations of the existing
law question whether, or to what extent, such referrals can be effected.

Secondly, when an offender designated as a violent sexual predator plans to
parole to or reside in another state immediately upon release from
incarceration, a question is raised as to which court has jurisdiction over his
request for judicial review of the designation. This proposal identifies the
sentencing court for the most recent sexual conviction as the appropriate
court to hear such appeals. There doesn’t seem to be any opposition to this
legislation.

MOTION: Senator Sorensen made a motion to send RS13554C1 to print. Second
was by Senator Lodge and the motion carried by a voice vote.
REPORT: Bill von Tagen from the attorney general’s office introduced Dr. Bob Marsh
from Boise State University who explained the report on the prosecution of
Child Sexual Abuse in Idaho from July 1, 2002 to June 30, 2003. Dr. Marsh
said there is an increase in the numbers and an increase in juvenile sex
offenders, and he is concerned that it could be a trend, but it bears watching.
He went over the Research summary. (See attached #1)Chart 19 A (see
attached #2) gives a clear picture of the perpetrator on the vertical axis
versus the age of the victim. This shows that over 35 of the adult
perpetrators were over the age of 50. This is an extremely high number of
older offenders. 68% were under 11 years of age. (See attached #3) They
found that 45% of adult abusers were acquaintances of their victim, 9 %
were natural parents, 5% were other relatives, and 5% were step-parents.
Interestingly this year, there was less than 1% (or two people) that were
charged with child sex abuse. The common stereotype from the media is
that this occurs from a stranger, but in the 12 years they have been doing
the study, they have not found that to be true.



For juvenile abusers, 34% were acquaintances of their victim, or the parents,
25% were relatives, and there was only 1 stranger last year charged with
child sex offense. Since 1995, regarding strangers, and there was only 3
juvenile offenders who were strangers that were charged. The immediate
sentence for those convicted was 39% probation, 20% went to prison, and
22% were sentenced under the remain jurisdiction statute. This represents
a decrease in prison sentences. He met with the Director of Corrections to
child the child sex offense phenomenon, who. He said that one of the real
issues is the lack of child sex abuse treatments for people who come to
prison. They found 8% of the adult sex offenders had prior sex offender
records and there needs to be some treatment for these people in the event
that they get involved in this behavior again.



Senator Darrington said that what he wanted for Christmas was to do away
with meth and also internet sex, and asked Dr. Marsh how he feels about the
influence that internet sex is having on those who offend at a young age. Dr.
Marsh
said they weren’t picking up anything as they don’t see the pre-sentence investigation and that information would be picked up there. It is a
lot more available now than it was before, and it is a concern.

Senator Richardson asked what those differences were between
involuntary and forced and Dr. Marsh responded that in the arrest report, it
showed indications that a young child was deceived or more likely was
forced into the behavior. With older juveniles victims, it is usually
consensual with a boy friend.

Senator Sorensen asked if he felt that looking at the pre-sentence
investigation would help enlighten them as to what is going on. She asked
who was trying to assess the information as to the increase in juvenile
offenses. Dr. Marsh responded that for the first 8 years that they were doing
the report, Chief Justice gave them access to the pre-sentence
investigations, and they could provide more comprehensive information to
answer as to why. In the last 4 years, they have not been allowed access,
not because of rule change, but a re-interpretation of their existing rule.
They request the information and get partial information, but they don’t get
as complete as they originally did.



Senator Sorensen asked who was doing the analysis of this information
and if someone was trying to gather the information and get to the causes,
and Dr. Marsh said not to the best of his knowledge no one was. He also
said they weren’t required to collect age differences, but he felt that this
information needed to be collected, and he felt that it was important to get
the information as the numbers are growing. Senator Sorensen asked if he
was pursuing this with the Chief Justice, and did the Legislature need to do
something. Dr. Marsh said they were stymied as to what to do now, as Bill
von Tagen requested they give access as was at first, but tthe decision was
made not to and they haven’t had access since.



Senator Sweet commented that the information would be critical in order to
do the proper analysis and find proper solutions and answers to this growing
problem. Dr. Marsh confirmed that the information was critical as this is the
type of crime that is better if it doesn’t ever happen. Senator Sweet was
deeply concerned about this and felt it was absolutely necessary to get the
information to enable Dr. Marsh and the proper agency to use it and find
solutions. Senator Sweet asked the chairman what the next step was.
Senator Darrington suggested that he and Senator Sorensen discuss it
with the Chief Justice and ask her how to proceed to gather better
information to help these report gatherers make their report. Senator
Sorensen, Senator Darrington and Senator Sweet
will meet with the Chief
Justice and pursue these concerns.

Senator Burkett asked what involuntary is according to the chart 12J (See
attached #4). Dr. Marsh responded that “This is when a child is too young to
know what is happening to them and parents have caught them in the act
and reported it, but the victim didn’t know what was going on. The age
looked at is about 7 or 8 years old right now. There is certainly better
education with young kids now, as to what is appropriate or inappropriate
touching, and more is being reported. ”



Senator Burkett asked about the cases on the chart where the offender is
12 to 15 and what are the statistics. Dr. Marsh replied that “It is generally
the cases of a boyfriend/girlfriend engaging in consensual sex, and the
parent of the victim presses charges. It hasn’t been forced, they are
voluntarily engaging. The perpetrator is generally charged, and that is
almost always the male. These are all lumped in with the 55 year old man
who engages with a 5 year old, and that is a very different issue. “

REPORT: Kathy Baird presented a report on the Sex Offender Classification Board.
Mr. Baird told the committee that concerning the report the Department of
Corrections is prohibited by criminal rule to release information on pre-sentence investigations. The reason they aren’t releasing the information is
that than can’t.



She reported that the Sex Offender Board is a part time board, comprised of
4 members who are appointed by the Governor. Currently serving are Dr.
Gary Horton from Blackfoot, and Thomas Hearn from Coeur d’Alene are
clinical sex offender treatment providers. Pamela Huntsman is a parole
officer in Twin Falls and provides the law enforcement viewpoint. Moscelene
Sunderland from Boise is an advocate for victims. The title of Sexual
Offender Classification Board is deceiving, because contrary to how it would
appear, not all convicted sex offenders are reviewed or classified by the
board. The Board also does not govern or operate the sex offender registry,
however, when they designate an offender as a violent sexual predator, they
are required to confirm their addresses every 90 days with law enforcement
and their pictures are now published in the newspapers during their annual
registration, or whenever they move. It is a lifetime designation that is
nationally recognized.



Violent sexual predators are not necessarily violent, as the title implies, but
the crimes for which these offenders are convicted are acts of sexual
violence. The key point is that these offenders are predatory and have a igh
likelihood of re-offending. Many of these have a long history of sexually
deviant behavior that began when they were children.



During 2003, the board reviewed 4 offenders out of approximately 127 who
were paroled or discharged and eligible for review. One of the four offenders
reviewed was not classified as a VSP. Since the board’s creation in 1998,
they have actually designated 40 offenders as sexual predators.



She clarified that juvenile sex offenders who are convicted as juveniles, only
register until the age of 21. However, county prosecutors can petition for
juvenile offenders to be transferred to the adult registry. Adult sexual
offenders may be eligible to petition the courts ten years after discharge to
be removed from the registry, depending upon their crime of conviction.



The Board is concerned about issues impacting the community and feel
there is definitely a need for kids to be educated on what behavior is
considered illegal. Their greatest concern is how to protect society from this
group of dangerous individuals and halt the devastation they have and most
likely will continue to create on people’s lives. The best thing that the
legislature can do for the board is to recognize that they are here to provide
a service to the State of Idaho and to use them.



Adjournment: Senator Darrington thanked Dr. Marsh and Ms. Baird for their interesting
reports and adjourned the committee at 2:50 p.m.






DATE: February 2, 2004
TIME: 1:30 p.m.
PLACE: Room 437
MEMBERS
PRESENT:
Chairman Darrington, Vice Chairman Lodge, Senators Sorensen,
Richardson, Bunderson, Davis, Sweet, Marley, Burkett
MEMBERS

EXCUSED:

Senator Dean Sorensen is filling in for Senator Sheila Sorensen for this
week. He was introduced and welcomed to the committee.
MINUTES: Senator Bunderson made a motion to accept the minutes of January 30 as
written. Second was by Senator Sweet and the motion carried by a voice
vote.
COMMITTEE

VOTE:

GUBERNATORIAL APPOINTMENT

William A. Parsons – appointment to the Judicial Council to serve a
term commencing July 1, 2003 and expiring June 30, 2009.

MOTION: Senator Davis made a motion to recommend to the full Senate, the
confirmation of Bill Parsons to the Judicial Council. Second was by
Senator Lodge and the motion carries by a voice vote with Senator
Marley voting no.
S1207 Tom Frost, Legal Counsel Idaho Supreme Court, presented this bill that
provides that any restitution ordered for a crime victim shall have priority
over any payment the defendant is ordered to pay to a governmental entity,
except the court may order the defendant to make the payment required in
Section 20-614(4), Idaho Code, before a restitution payment is made to the
victim. However, Section 20-614(4) does not require any payment to a
governmental entity. It is 20-614(7) that requires a payment to a
governmental entity, i.e., reimbursement of jail confinement costs, and the
reference to 20-614(4) should be corrected to read 20-614(7) for clarity.
MOTION: Senator Lodge made a motion to send S1207 to the floor with a do pass.
Second was by Senator Richardson and the motion carried by a voice vote.
Senator Richardson will carry the bill on the Senate floor.
S1208 Tom Frost presented this bill that cures omission occurring last session to
grant discretion of Judges to waive evaluation. In the 2003 Legislative
Session, House Bill 335 amended Section 37-2738, Idaho Code, (which
formerly required a substance abuse evaluation for all drug offenses) to
permit the judge to waive an evaluation in an appropriate case, including
certain first-time drug offenses identified in the bill. However, because of an
oversight, the non-narcotic misdemeanors defined in Idaho Code 37-2732(c)(3) were not included in the list of first-time offenses which qualify for
a discretionary waiver, although certain felony drug violations, including
marijuana, were listed. The result is that the court lacks the authority to
waive an evaluation for a first-time misdemeanor marijuana violation, which
might be an appropriate candidate under the first-time offender exception,
while it has the discretion to do so for felony marijuana possession. This
proposed amendment will address this omission. This bill is anticipated to
have a positive impact on local funds by eliminating costs associated with
unnecessary evaluations that otherwise would be borne by county
governments.



Senator Burkett asked why an evaluation wasn’t conducted each time an
arrest was made. If the person had a history of drug abuse, then it would be
a good thing to know. Mr. Frost said this was debated last session in the
House and the Senate committees, and judges have represented that there
are times when evaluations are not needed when treatment is ordered.
Judges know when they are going to order treatment. These evaluations
result in delays in processing and are costly for the counties. Even though
the defendant was supposed to pay for it, the cost usually fell to the county
to pay. After the debate, some discretion was left to the judges for their
benefit.

MOTION: Senator Lodge made a motion to send S1209 to the floor with a do pass.
Second was by Senator Marley and the motion carried by a voice vote.
Senator Dean Sorensen will carry this bill on the Senate floor.
S1234 Heather Reilly presented this bill relating to domestic violence to amend a
statute to qualify a substantially conforming out of state domestic violence
conviction for purposes of enhancing a subsequent crime of domestic
violence in Idaho. Under current law, a conviction for domestic violence
outside of Idaho cannot be used to charge a second or third violation that
occurs within Idaho. Currently, pursuant to Idaho Code, Section 18-918, a
second conviction for domestic violence within ten years may result in
enhanced or additional misdemeanor penalties. In addition, a third
conviction under the current code, within fifteen years, may result in felony
penalties up to five years or a fine not to exceed five thousand dollars or
both. This change will allow a higher level of accountability for an offender
who has been convicted of domestic violence in another state and then
moves to Idaho and continues to commit domestic violence against a
household member. The out of state statute must have substantially similar
elements as Idaho statute for the conviction to qualify.



Domestic batterers must be held to a higher level of accountability if they
continue to batter after being convicted, even if the initial conviction occurred
out of state. Arizona has language that allows out of state convictions to
enhance “or acts in another state that if committed in this state would be a
violation of a domestic violence offense” Utah has similar language that “is
convicted in any other state, of an offense that would be a domestic violence
offense under Utah law.” Indiana and Rhode Island had enhancement
language. Ms. Reilly quoted Idaho Statute, Title 39, Health and Safety that
“the legislature finds that a significant number of homicides, aggravated
assaults, and assaults and batteries occur within the home between adult
members of families. Furthermore, research shows that domestic violence is
a crime which can be deterred, prevented or reduced by legal intervention.
and by vigorous prosecution by law enforcement agencies and prosecutors
and appropriate attention and concern by the courts whenever reasonable
cause exists for arrest and prosecution.”



Ms. Reilly referred to a letter from the Attorney General’s Office, signed by
Bill von Tagen saying that the Law Enforcement Legislative Council voted
unanimously to support this legislation. (See attached #1)



Senator Burkett and Senator Davis were concerned that the language
would require a second offense in Idaho before the out of state conviction
could be enhanced. They felt there was a risk of the judge saying, that the
second conviction, not the previous conviction be from out-of-state.

MOTION: Senator Davis made a motion to hold the bill in committee until the next
committee meeting on February 4th to clarify the language. Second was by
Senator Sweet and the motion carried by a voice vote.
S1221 Brent Reinke, Idaho Department of Juvenile Corrections, presented this bill
to update the Juvenile Corrections Act by removing all references to forestry
camps, to clarify that programs should be research based and to clarify
reimbursement to counties for holding juveniles committed to the state.
Basically, it makes six modifications which strength and clarity to the
Department., and provide technical assistance. For an example, if a juvenile
is in a correction facility, the state will be responsible for the costs after 5
days. Also, now a juvenile will be relocated to the nearest facility and not
brought to Nampa, which is a cost savings to the state. The department is
looking at what works nationally, and by working with the counties, they have
seen a significant return on their investment.



Senator Marley commended the Director on the concept of research based
technology.

MOTION: Senator Lodge made a motion to move S1221 to the floor with a do pass.
Second was by Senator Richardson and the motion carried by a voice vote.
Adjournment: Meeting was adjourned at 2:33 p.m.






DATE: February 4, 2004
TIME: 1:30 p.m.
PLACE: Room 437
MEMBERS
PRESENT:
Chairman Darrington, Vice Chairman Lodge, Senators
Sorensen,Richardson, Bunderson, Sweet, Marley, Burkett
MEMBERS
EXCUSED:
Senator Davis
MINUTES: Senator Richardson made a motion to approve the minutes of Feb
2 as written. Second was by Senator Bunderson and the motion
carried by a voice vote.
S 1234 Heather Reilly appeared before the committee to present the
amendments to the bill to clarify and address the concerns that
Senator Davis and Senator Burkett had when the bill was
presented earlier. She met with the two Senators, Ada County
Prosecutor, Jan Bennetts, Boise City Prosecutors Steve
Rutherford, and Rich Stover to draft the amendment. They
completely adopted the language from the DUI statute language
regarding out of state convictions. The bill now states, “Any person
who pleads guilty to or is found guilty of a violation of this
subsection ‘(3) who previously has plead guilty to or been found
guilty of two (2) violations of this subsection (3), or a substantially
conforming foreign judgement” This language basically deleted a
line and inserted “previously” following “who”. (See attached
amendment #1)



Ms. Reilly stated that it means the same, but is said differently in a
better way and Senator Burkett commented that now the language
was where it was needed, that the third violation is a felony. This
amended language is also placed in the bill regarding second
offense misdemeanor violations.



Senator Darrington commented that hopefully it clarifies that a
judge will not interpret a foreign conviction as not counting toward a
second offense. Ms. Reilly responded that was exactly what it
meant.

MOTION: Senator Richardson made a motion to send S1234 to the floor in
the l4th order for amendment. Second was by Senator Bunderson
and the motion carried by a voice vote.
RS13578 Kandee Yearsley, Child Support program manager for Department
of Health and Welfare presented this legislation to the committee
which is controversial to the parent who has the resources to meet
their support obligation but wont. However, there is no controversy
between child support and the partners that participate in this
process. Child Support issues always bring controversy as they
deal with children, money and broken relationships. Single parents
in Idaho are owed over $380 million in past due support. Financial
Institution Data Match is an aggressive enforcement tool that
targets parents who have the financial resources to pay the support
but do not do so. (See attached#2)



A federal mandate requires states to obtain financial account
information on parents who are delinquent in paying child support,
and to attach the financial accounts to pay child support debts. The
Bureau of Child Support Operations has developed the data match
but has been unsuccessful in using it as an enforcement tool due to
the costs and restrictions involved in the garnishment process.
Idahos garnishment laws are restrictive, as they apply only to
accounts that are located within the State. In addition, garnishment
papers must be filed with the Clerk of the Court and served by a
county Sheriff, taking several weeks for processing. This proposal
revises existing child support statutes to include the attachment of
financial assets by using the well established administrative
process for income withholding. The administrative process
currently provides due process for the obligated parent and will
continue to do so. The professional community accepts the use of
administrative process and can be used across state lines without
the assistance of the Clerk of Court or Sheriff. Expanding the law to
include administrative attachment of financial assets, will be more
efficient and more cost effective. During the last year, only four
garnishments have been done due to restrictive process. The
effective date is July 1, 2004 and will cost $6,400.00 for the first
year to form development, and the 3-5 year annual impact will be
$19,800.00 legal fees.



Senator Bunderson asked if the non-custodial parent left the
state, would this legislation give the Department any more power,
and she replied that the department can collect from that parent if
they cross state lines. She commented that some non-custodial
parents are constantly on the move to avoid having their paycheck
garnished, If that person has a bank account, the department can
take it and any assets to meet the obligation.

MOTION: Senator Bunderson made a motion to send RS13578C1 to print.
Second was by Senator Burkett and the motion carried by a voice
vote.
RS13825 Senator Darrington turned the chair over to Senator Lodge while
he presented this legislation, relating to tattooing, branding and
body piercing of minors to prohibit certain actions on minors under
the age of fourteen. Parental consent would be required before any
of these procedures could be performed on minors aged fourteen to
eighteen years. This legislation refers to indelible designs not the
temporary ones that minors can get easily. Piercing ear lobes and
piercing for medical purposes are not covered by this legislation.



Senator Bunderson commented that while they were on the
legislative summer tour, Dr. McCluskey told the legislators that
tattooing was the greatest cause of Hepatitis C today.



Senator Darrington said that Dr. McCluskey strongly supports this
legislation and that it is the first step and a small step. Almost every
other state, according to NCSL, has regulations regarding tattooing.
This legislation only requires one parent to give consent and he
recognizes that kids will work one parent against another, but that
is a fact of life.



Senator Marley asked why the age of 14 was chosen, and he was
told that it was an arbitrary age, but that in his experience of
teaching 14 year olds for 33 years, this is an age that kids start
going out and doing their own thinking.



Senator Dean Sorensen asked if the piercing was self-inflicted,
could that minor be charged under this bill and Senator Darrington
said it would violate this statute.

MOTION: Senator Richardson made a motion to send RS13825 to print.
Second was by Senator sweet and the motion carried by a voice
vote.
S1237 Dean Heyl, Direct Selling Association presented this bill. He said
that Idaho has a good solid foundation for this legislation, and after
meeting with Attorney General Wasden in November, he suggested
that it move forward and go to the Legislature. Senator Darrington
commented that Gavin Gee informed them that the change in
Federal Law makes them unable to enforce certain actions that
come into the State. Mr. Heyl told the committee, this is why the
model legislation is an enhancement and states without this
legislation could be more susceptible.



Senator Richardson asked if there was any allowance for
charities, and was told that the bill was designed to protect any
situation where actual product was sold. The “women helping
women” parties where they are getting $40,000 for $200 are groups
masquerading as charities, but are actually examples of pyramid
schemes. The definition of a pyramid is someone is paying for
individuals to recruit them as opposed to selling a product.



This legislation is patterned after Hi 183 in South Dakota, and other
states are close but only about 20 states are considering legislation
so far. He doesnt know of any who have considered it and not
passed it. The reason South Dakota and Idaho went first was that
they had the solid foundation and this “just adds meat to the
bones”. The Direct Selling Association has been working on anti-pyramid legislation for 25 years, which is primarily getting revenue
from recruitment and not selling a product.

MOTION: Senator Bunderson made a motion to send S1237 to the floor with
a do pass. Second was by Senator Richardson and the motion
carried by a voice vote.
Presentation: Idaho Sheriffs Association. Jim Higgins, Sheriff of Cassia County
and President of the Association gave a report to the committee.
They meet together four times a year and meet twice with the Idaho
Association of Counties. Their main purpose is to train Sheriffs, and
ten Sheriffs will retire this coming year. All Sheriffs are required to
attend the POST academy. Association members are involved in
Boards, such as POST and ILETS.



He expressed appreciation for their lobbyist, Mike Kane.



He said there is a Jail standards Committee that is responsible for
inspecting the jails and coming to agreement with the Idaho
Department of Corrections on holding prisoners. He told the
committee that Bonneville, Madison and Cassia counties are
holding women in prison. They are mandated to come make a
report to the legislature and pass information on.



He introduced Bill Lynn, Sheriff of Bannock County who is the
Director of the Idaho Sheriffs Association. He presented an inmate
status report to show what is taking place in the jails. (See attached
#3) He said that 23% of the jails are filled with women which require
more programs for them and they dont take to prison as well. The
main reason women are in jail is for meth use. Reference was
made to the popular Sheriff of Maricopa County, Arizona and his
treatment of prisoners. Sheriff Lynn responded that there are
$183,000 worth of lawsuits pending against that sheriff. In Idaho we
treat inmates like human beings. His attitude is “Lets not turn them
out any worse than we found them.” He would like to see them
turned back better than they were found.

Adjournment: Senator Darrington thanked Sheriff Higgins and Sheriff Lynn for
their report to the committee and adjourned the meeting at 2:52
p.m.






DATE: February 6, 2004
TIME: 1:30 p.m.
PLACE: Room 437
MEMBERS
PRESENT:
Chairman Darrington, Vice Chairman Lodge, Senators Dean Sorensen,
Richardson, Bunderson, Davis, Sweet, and Burkett
MEMBERS

EXCUSED:

Senator Marley
MINUTES: Senator Dean Sorensen made a motion to accept the minutes of
February 4 as written. Second was by Senator Lodge and the motion
carried by a voice vote.
S1210 Heather Reilly, Idaho Prosecuting Attorneys Association presented this
legislation that will clarify Idaho’s current forgery statute, Idaho Code
Section 18-3601, and includes falsely making, altering, forging,
counterfeiting or uttering, publishing, passing, or attempting to pass, as
true and genuine with the intent to defraud counterfeit money. Law
enforcement and prosecutors throughout the state currently investigate
and file charges under this code section when a suspect passes fake
United States Currency. However, some magistrate judges in the state
have ruled that counterfeit money is not included within the laundry list
contained in Idaho Code section 18. Therefore, this legislation
specifically includes: Federal Reserve note, United States currency or
United States money in the forgery statute. Ms. Reilly told the committee
that the IPAA believes this legislature intended to include counterfeit
money in the forgery statute, otherwise, there is no state code for which
they could charge a felony for making or passing counterfeit money. She
quoted Black’s law definition of “currency as coined money and such
banknotes or other paper money as are authorized by law and do in fact
circulates hand to hand as the medium of exchange”.



The crime of making and passing counterfeit currency is a common
occurrence in the cities and counties throughout Idaho and law
enforcement and prosecutors must be able to continue to address this
problem at the local level. This legislation also repeals the section about
circulating illegal money, which provides that a person who “makes,
issues or puts in circulation” any bill, check, ticket, etc. is guilty of a
misdemeanor for a first offense. This code section is duplicative of Idaho
Code Section18-3601 and other sections of title 18 chapter 36, yet
provides for a misdemeanor penalty which is contrary to the other forgery
and counterfeiting statutes, that provides for felony punishment.



Ms. Reilly addressed Senator Davis’s concern about “ex post facto” or
latin for “after the fact” by saying “Every law that makes an action done
before the passing of the law, and which was INNOCENT when done,
criminal and punishes such action, or that aggravates a crime or makes it
greater than it was, when committed, is unconstitutional.” Even if the
argument is made by a defendant, that because the Legislature included
“money” in 2004, his conviction in 2002 is void.” She commented that
counterfeiting has not been an innocent act for many years.



Detective Dave Heidemann, of Twin Falls, told the committee that he has
been advised by the Prosecutor in his county that incidents of making or
passing counterfeit money needs to be charged as a misdemeanor under
Idaho Code 18-3618 to support repealing 18-3618 and specifically
including the phrase United States Currency in Idaho Code 18-3601. He
gave examples of cases that occurred in Twin Falls that should have been
charged as felonies but were only charged as misdemeanors. Counterfeit
money was presented at fast food establishments, change was given and
the restaurant had to absorb the loss. Both of the bills passed were
counterfeit $20 bills created with a computer, scanner and color printer.



Detective Wade Spain, Boise City, told the committee that counterfeit
money has exploded in recent months. They track and record thousands
of cases involving hundreds of dollars. Computers can make fairly decent
counterfeit money, that is usually passed through fast food businesses,
who must take the loss. This legislation adds clarification and will help
some judges who throw out these cases out as they don’t feel the cases
fall under the forgery statute. These cases are a federal felony, no matter
what.

MOTION: Senator Burkett made a motion to send S1210 to the floor with a do
pass. Second was by Senator Lodge and the motion carried with a voice
vote. This bill will be sent to the floor with the recommendation that
pursuant to Senate rule 9F, the typographical error of an apostrophe in
State’s will be corrected on Line 16 to States’. Senator Lodge will carry
this bill on the Senate floor.
S1227 Dale Higer presented this bill from the Uniform Law Commission to revise
and update Article 7 of the Uniform Commercial Code, the article which
deals with warehouse bills of lading and other documents of title. The
purpose of the revision is to provide a framework for the further
development of electronic documents of title, and update the law to reflect
state, federal and international developments and practices.
MOTION: Senator Lodge made a motion to send S1227 to the floor with a do pass.
Second was by Senator Davis and the motion carried with a voice vote.
Senator Davis will carry this bill on the Senate floor.
S1228 Dale Higer also presented this legislation revises and updates Article 1 of
the Uniform Commercial Code and makes Article 1 consistent with other
revised articles of the Uniform Commercial Code to set forth default
issues and give guidance to the courts.
MOTION: Senator Bunderson made a motion to send S1228 to the floor with a do
pass. Second was by Senator Richardson and the motion carried with a
voice vote. Senator Davis will carry this bill on the Senate floor.
S1262 Ron Messler, investigator, Department of Correction presented this bill
which is to provide authorized representatives of the Department of
Correction with an enhanced ability to apprehend parole absconders.
Currently, representatives of the Department do not have the ability to
follow an absconder with a paper trail, and Subpoena power is not
uncommon for an agency to have. Mr. Messler presented a list of those
agencies. (See attached #1) The documents sought would be those
containing information which would be helpful in locating parole
absconders such as records containing addresses and phone numbers
etc. The legislation would allow authorized representatives of the
Department of Correction to issue a subpoena to compel the production of
documents. Failure to comply with the subpoena may be punishable as
contempt. The impact on the Department of Correction should be
minimal. The specific fiscal impact will depend on the number of parole
absconders for whom a subpoena is issued. However, other than the
possibility of paying for the copying costs of the documents sought (which
should be fairly nominal), there should not be any associated cost with
issuing the subpoena or obtaining the records. In the event legal services
are needed to assist in compelling compliance with a subpoena, the legal
department of the Department of Correction will be used.



Senator Davis felt it could be dangerous for the Director to issue a
subpoena, do the investigation and issue a citation. However, he
commented that the subpoena power is entrusted to lawyers, so why
couldn’t it be entrusted to the director.

MOTION: Senator Davis made a motion to send S1262 to the floor in the amending
order. Second was by Senator Sweet and the motion carried with a
voice vote. Senator Darrington voted no. Senator Bunderson will
carry this bill on the Senate floor.
Adjournment: Meeting was adjourned at 2:45 p.m.






DATE: February 9, 2004
TIME: 1:30 p.m.
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 approve the minutes of February 6 as
written. Second was by Senator Sweet and the motion carried by a voice
vote.
S1232 Senator Laird Noh was going to present this bill, but as his committee meets
at the same time, he felt that those who came to speak to it could present it
very well. Linda Lemon, Hagerman, who is Executive Secretary of the Idaho
Aquiculture Association spoke to this bill. She said it is very important to
establish the fact that damaging fish is a felony and will incur stiff penalties. At
the present time, law enforcement doesn’t consider this a serious crime. To
keep vandals from damaging the facilities is a big monetary issue. Idaho is
the number one trout producer in the industry, and is an important long-time
business in Idaho.



Senator Darrington asked if this would be an incentive for police to
investigate. Ms. Lemmon responded that in their experience the police look at
their operation as a hobby and that they have more important things to do.
When their ponds are polluted, they lose hundreds of thousands of dollars, as
some fish are worth hundreds of dollars.



Senator Burkett asked if this punishment would be a felony regardless of the
damage done, for example if someone spit their gum into the water and a fish
ate it and died. Ms. Lemmon replied that it probably would, even though that
wasn’t the intent, but it is still killing fish.



Senator Darrington recalled that a few years ago similar legislation was
passed concerning the cattle industry, and the punishment was extended to a
felony for stealing livestock, regardless of the value.



Senator Bunderson questioned whether the punishment should be that
severe unless the intent was there. Ms. Lemmon replied that there could be
an allowance for accidental, if not purposefully trying to kill. The crime has to
be intentional.



Senator Burkett asked who specifically would not enforce the law. Ms.
Lemmon
deferred to Leo Ray, also a member of the Aquiculture Assn. His
company is Fish Breeders of Idaho and has had 400,000 to 500,000 dollars
worth of fish killed by vandalism. He told the committee that last spring,
someone dumped chlorine in the water supply at one of his farms killing
250,000 fish or 100,000 pounds of fish. The value of the fish at that time was
$100,000 but would have been $300,000 at market size. Another farmer
called the Sheriff as some kids were using his ponds to have a drug party.
The kids came back and pulled his dam boards, killing 40,000 pounds of fish.
They knew who the kids were, had fingerprints and footprints, but no one was
ever prosecuted. Law enforcement treated each of these cases like some
minor vandalism, saying it wasn’t worth their time to catch someone because
nothing can be done to punish them when they are arrested.



Mr. Ray was asked by the sheriff, “What do you want us to do? You aren’t
going to get any money out of them, and they aren’t going to be put in jail.”
Mr. Ray would like to see what happened to him prevented for the future. One
gallon of swimming pool chlorine can wipe out a hundred million dollar industry
and prosecutors are hesitant to prosecute because the penalties are too weak
to justify their efforts. He feels this legislation can make the penalty stiff
enough to be a deterrent and that if $400,000 worth of cattle was killed, the
effort from law enforcement would not slow down until the crime was solved.



Senator Burkett asked if there was a sign in the area addressing the
penalties for this, and Mr. Ray answered that someone could go through the
valley in two hours, not get off a county road and still do this damage.



Senator Richardson asked if the dead fish could be used for anything and
was told that all they can do is dig a hole and bury them. They have had more
interest in getting this vandalism stopped from the Food and Drug
Administration than from the local sheriff.



Senator Bunderson asked if there were any laws about dropping poison off
public roads, and Mr. Ray felt that came out of the anti-terrorism bill. Senator
Bunderson
commented that if gas was poured close to a river, and the water
goes on, wouldn’t there be dead fish in the Snake River at some point. Mr.
Ray
responded that the water goes into an irrigation district before reaching
the river. The EPA says the canal is public water, but the local canal
companies say it is not.



Stan Standall from Bliss is a small trout provider and told the committee that
he has several small facilities scattered around and every one of them is
subject to an act of vandalism. If a dam board is pulled, within 15 minutes the
water loss can cause death to fish. Chemical reaction happens faster and he
lost $15,000 worth of fish within a few minutes one morning. He wanted the
committee to be aware of how wide the exposure is in the aquiculture
business.



Senator Darrington told the committee “that our goal is to establish a criminal
penalty under State law in Idaho so sufficient as to either deter those who
would think about committing a crime to vandalism fish facilities and kill fish, or
if anyone does it and gets caught, there is sufficient ammunition for the
prosecutors to prosecute and put them in prison where they belong.” He
asked if that was the intent of the proposed legislation, and was told it was.



Senator Bunderson asked if there are any guards or wires to prevent this
from happening. Mr. Standall replied that the ponds are next to the road, that
there is chain link fencing and also bird netting. Vandals have cut the bird
netting and dumped swimming pool chlorine into the fish ponds.



Senator Sweet asked why this would be happening, and if they had any
theories as to who would want to do this. Mr. Standall responded that a
motive could be an environmental concern with the water quality. He couldn’t
place any reason for vandalism to his fish, it just seemed to be a prank with no
consequence.



Senator Burkett asked if the sheriff explained why there was no prosecution.
Mr. Standall said the deputies took pictures, and made an investigative report,
but then nothing more was done. Senator Burkett said there probably wasn’t
enough evidence.



Judy Bartlett, representing Idaho Farm Bureau spoke in support of the bill. In
2002, the Legislature passed similar legislation with penalties for interfering
with Agricultural research and commented that, “The fish industry is something
that we need to be more educated about”. She told the committee that Ms.
Lemmon
has sturgeon which produce caviar and it takes many years for them
to be able to produce caviar. “One female can cost $3000,” she said, and “It
is time to teach young people that there are consequences and their actions
could fall under the domestic terrorism act, right up there with burning SUV’s
and ski lodges. ”



Senator Davis felt that there should be mention of “willful, malicious or
knowingly” in this piece of legislation. Mr. Ray pointed out that an accident
would be tolerated and would not be “knowingly and intentional” vandalism.
He cited an example of raising blue catfish. They need to be seven years old
before they are ready to brood. If kids come along and take fish out, but
happen to take one of these, they would have to prove the fish was worth over
$1000 for it to be a felony, and this might be hard. Senator Darrington felt
there would be prosecutorial discretion for charges that could be accidental.



Senator Tom Gannon of Buhl spoke in support of the bill. He feels that this
area is the trout capitol of the world, and every effort should be taken to
prevent this vandalism to the industry. He agreed to sponsor this legislation
on the floor and even to work on amendments.

MOTION: Senator Davis made a motion to send S1232 to the floor in the 14th order for
amendment to add “willful or knowing” to line 10, Section 18-7041. Second
was by Senator Lodge and the motion carried by a voice vote with Senator
Darrington
voting no. Senator Noh and Senator Gannon will co-sponsor
this bill on the Senate floor.
Adjourn: Meeting was adjourned at 2:15 p.m.






DATE: February 11, 2004
TIME: 1:30 p.m.
PLACE: Room 437
MEMBERS
PRESENT:
Chairman Darrington, Vice Chairman Lodge, Senators Sorensen, Richardson,
Bunderson, Enid Lee Davis, Sweet, Marley, Burkett
MEMBERS

EXCUSED:

Senator Bart Davis
Senator Darrington welcomed Enid Lee Davis, who is sitting in for her son,
Bart Davis this week.
MINUTES: Senator Richardson made a motion to approve the minutes of February 9 as
written. Second was by Senator Marley and the motion carried by a voice
vote.
Bob Aldridge presented legislation to help bring about clarification on issues
that the Idaho State Bar has found to be confusing or too complex.
RS13805 This legislation relates to Guardians of minors to revise procedures relating to
court appointment of guardians of minors to provide for de facto custodians and
to define de facto.
MOTION: Senator Richardson made a motion to send RS13805 to be printed. Second
was by Senator Lodge and the motion carried by a voice vote.
RS13949 This legislation relates to probate of wills and filing of claims to change the time
limit for filing of claims from two years to three years. The existing language
limits the presentation to two years, but probate can be filed up to three years.
The problem is that people were waiting for 2 years and a day to file probate to
avoid paying Medicaid State recovery and no claim could be presented. This is
unfair, is cheating the tax payers of Idaho and avoiding a proper repayment
system. This legislation will solve that problem, by changing the two year limit
after death to a three year limit after death when a probate claim can be filed.
MOTION: Senator Burkett made a motion to send RS13949 to be printed. Second was
by Senator Marley and the motion carried by a voice vote.
RS13950 This legislation makes substantial changes to the Homestead provisions of
Idaho Code and includes a revocation of section 55-1010. In consultation with
the estate recovery division of Health and Welfare, the best way to clarify and
simplify the methods used by Estate Recovery would be by enacting a new
section with the language in this bill. The same result may still be reached
through probate procedures without enactment of this new section, but the new
section w ill make the legal situation absolutely clear.
MOTION: Senator Sweet made a motion to send RS13950 to be printed. Second was by
Senator Lodge and the motion carried by a voice vote.
S1244 This bill amends the appointment criteria for a guardian and conservator to
provide that a convicted felon is to be appointed only when the court finds by
clear and convincing evidence that the appointment is in the best interests of
the incapacitated person. It has been determined that the convicted felons
constitute a disproportionate number of abusers. Such abusers often become
the agent of the incapacitated person by Power of Attorney or Durable POA for
Health care. This higher standard will protect the incapacitated person, while
still allowing such an appointment to be made in appropriate cases.
MOTION: Senator Sorensen made a motion to send S1244 to the floor with a do pass.
Second was by Senator Marley and the motion carried by a voice vote.
S1245 This bill completes an ongoing series of changes to the Uniform Probate Code
on the appointment of temporary and emergency conservators. These
changes have attempted to balance the need for quick ex parte orders the
Court issued without hearings and without reports from court visitors or
guardians, with the need to protect the right of an incapacitated person. This
bill adds a new section to cover temporary and emergency appointments of
conservators, and amends to clarify the role of a guardian when the
incapacitated person has assets to be managed. An “emergency situation” is
defined to exist when the court has been given a report by a medical doctor
stating that the person to be protected is unable to take care of the activities of
daily living and the court also finds one of the four factors such as: (1) a finding
that the person is unable to reasonably manage their finances and that their
assets will be wasted unless proper management is provided without delay, or
(2) A person has been taken advantage of and that the situation is likely to
continue (3) a finding that funds are needed for support, care and welfare of
the person to be protected, or (4) that other conditions exist that in the court’s
determination necessitate the appointment of a temporary conservator. The
duty of a temporary conservator is to preserve and protect the assets of the
estate.
MOTION: Senator Sorensen made a motion to send S1245 to the floor with a do pass.
Second was by Senator Lodge and the motion carried by a voice vote.
S1246 This bill relates to apportionment of estate taxes among various beneficiaries of
a decedent. Current Code does not cover many situations that now exist,
especially due to the more sophisticated forms of estate planning and is now
inadequate to provide for many situations in which estate tax needs to be
apportioned. This is causing either manifest unfairness in the apportionment of
estate taxes, or expensive and lengthy litigation to determine the proper
apportionment. The current bill repeals 15-3-916 in its entirely and adds a new
part 13 of the Probate Code. (See attached #1)
MOTION: Senator Bunderson made a motion to send S11246 to the floor with a do
pass. Second was by Senator Sorensen and the motion carried by a voice
vote.
S1247 Relating to powers and duties of conservators to clarify control by a conservator
of title to the property of the protected person
MOTION: Senator Sweet made a motion to send S1247 to the floor with a do pass.
Second was by Senator Sorensen and the motion carried by a voice vote.
S1248 Relating to matters of probate to provide instruction regarding the 90 day
inventory of property be prepared by a personal representative and furnished to
an interested party. This bill modifies the language of this section to require that
the inventory only be sent to interested persons, as defined in the probate
code, who request a copy and that the personal representative may, but is not
required to, file with the court.
MOTION: Senator Lodge made a motion to send RS13805 to the floor with a do pass.
Second was by Senator Richardson and the motion carried by a voice vote.
S1249 Relating to provisions of a living will and a durable power of attorney



Bob Aldridge explained the part of this bill that concerns the Living Will and
Durable Power of Attorney for Health Care provisions. The problems in existing
law, under the Natural Death Act, there are numerous unanswered questions
about the effectiveness of documents done under prior versions of the act or in
different states. This bill corrects a number of technical problems and amends
the living will to ensure that existing living wills, executed prior to the
amendment date are still valid. The living will covers terminal situations when
artificial life-sustaining procedures would only prolong life artificially. The form
has three choices, one of which is picked by the person executing the form.
The second choice currently allows the withdrawal of artificial life-sustaining
procedures except for nutrition and hydration. However, the existing statute
does not allow a subchoice to choose between just nutrition or just hydration.
This will adds that subchoice so that the person can choose both nutrition and
hydration, or only nutrition or only hydration. The bill also adds language to
provide that both nutrition and hydration will be administered if none of the
subchoice boxes are checked. This bill also adds language to avoid confusion
about whether the living will expresses the desires of a person.



Bill von Tagen, deputy attorney general explained this part of the bill to the
committee, about Do Not Resuscitate (DNR) orders. Two years ago, the
President took up end of life issues to review statutes. A DNR order is not a
living will and is not a durable power of attorney. A living will can be the basis
for the issuance of the DNR order and certainly the holder of the durable Power
of Attorney (POA) may consent to the issuance of the DNR order, but a DNR is
also called a “no” code, and is entered by a Doctor. It must be consented to by
a patient, and if a patient cannot give consent, then it may be the holder of the
durable POA that may give consent. Other documents such as the living will
can be looked to in determining the patient’s intent. The order is to be clear
directive that in the event of cardiac or pulmonary arrest, the patient is not to be
resuscitated. The DNR order does not affect other treatment that is to be
administered. These orders are only appropriate when a patient is suffering
from a terminal disease or condition that will result in death in a very short time.
The proximity of death is very important to the DNR orders.



The legal basis of DNR orders is based on the reason that a person who is
capable of making informed consent as to medical treatment has the right to
make decisions concerning medical care. This is the individual right of self-determination and the right to be free from infringement on bodily integrity.
Section 4 of the bill amends Chapter 10 of Title 56 of Idaho Code that presently
only apply in non-institutional settings, basically to EMT’s. They provide
definition and legal protection to EMT’s and the goal of section 4 is to extend
this definition and protection to health care workers working in an institution,
which includes nursing home, or shelter. DNR orders are based on the wishes
of the patient, and may not be carried out for fear of liability. There is no reason
that the protection given now to EMT’s should not be given to other health care
workers wherever they work.



Joe Gallegos, Jr. spoke in support of the bill on behalf of AARP of Idaho’s
150,000 members. (See attached letter#1)



Anne Christiern, a Registered Nurse working in Hospice spoke in favor of the
bill. She told the committee that “unless you witness a person being
resuscitated in the presence of family members, all of whom didn’t want it, you
won’t understand how important this legislation is.”



William Whitaker BSU faculty and representing National Association of Social
Workers spoke in favor of S1249 as clarity is very important. When his mother
passed away her living will was accepted in another state, and the power of
attorney let her wishes be carried out. This meant a great deal to the family.



Steve Millard, President of the Idaho Hospital Assn. spoke in favor of the bill as
it is a real issue for hospitals, and they are in support of passage.



Cheryl Simpson Whitaker, social worker, spoke in favor of the bill and thanked
those who worked on this for their leadership and support to bring changes to
the community.



Becki Henderson, a registered nurse working with hospice spoke in favor of this
bill that forwards clarity to patients to get the care they deserve.



Senator Sorensen asked why coroners were included in this legislation and
was told that there are cases where a heartbeat is detected when a sortition
gets ready to embalm a person and if they fail to resuscitate, they can be liable.
Also, a physician who issues the DNR order can also revoke that order.

MOTION: Senator Bunderson made a motion to send S1249 to the floor with a do pass.
Second was by Senator Sorensen and the motion carried by a voice vote.
S1250 This bill that relates to homestead allowance determinations of an estate to
further define the rights to collect. “Homestead” appears in two different areas
of the Idaho Code. The current section 55-1010 appears to mandate that a
homestead, if “selected” from community property, mandatorily passes to the
surviving spouse. The other area is in the probate code 15-2-401 describing
“homestead allowance”, “exempt property”, and “family allowance”. The
interplay between these two areas of law, and the application of the Probate
Code terms and conditions have been a source of constant problem to the
probate bar. Judges have interpreted the terms in multiple inconsistent ways.
He also told the committee that the new legislation he introduced today,
RS13950 adds back the language requested by Medicaid.



Substantial language has been added to the existing language to clarify that
the two allowances and exempt property are not mandatory and automatic, but
must be applied for by the surviving spouse or children. The Personal
Representative is not required to give actual notice to the surviving spouse or
children of the allowances or exempt property. This removes the PR from a
potential conflict of interest with multiple beneficiaries of the estate. The
allowances and exempt property can only be applied for by the spouse or
children; creditors cannot apply on their behalf. Finally, the allowances and
exempt property do not take precedence over the reasonable administrative
costs and expenses of the estate. The effect of the bill should make clear an
area of probate law that has been confused and conflicting.



Kathleen Allyn, department administrator of Medicaid said they are satisfied
with the legislation with the new language put in.

MOTION: Senator Sweet made a motion to send S1250 to the floor with a do pass
Second was by Senator Richardson and the motion carried by a voice vote.
S1251 Currently, to file a claim against the estate of a decedent, the creditor must file
a written claim both with the personal representative and with the court. In
Section 15-3-803 there are various time limitations within which claims must be
presented. The existing language of 15-3-804 says that a claim is deemed
presented on the earlier of the filing with the PR or with the Court. There have
been cases where a creditor has argued that the sending of a bill to the
deceased, which was then received by the PR, without a filing with the Court,
and without any reference in the bill to the probate proceeding, was a filing with
the PR. Therefore, when the claim was not paid by the Estate, the creditor
could several years later, file a claim with the Court and still fit within the time
limitations, even though the PR had published a Notice to Creditors. This
situation creates chaos in estate administration, because the representative
has no way of knowing whether a claim will be filed years after death but still be
valid. This bill remedies the situation by providing that the date of filing is the
later of the filing with the PR or with the Court. Creditor must therefore act
within the statutory time periods to file claims, and the PR will know with
certainty when all claims are either filed or barred so that the estate can safely
be distributed.
MOTION: Senator Lodge made a motion to send S1251 to the floor with a do pass.
Second was by Senator Burkett and the motion carried by a voice vote.






DATE: February 13, 2004
TIME: 1:30 p.m.
PLACE: Room 437
MEMBERS
PRESENT:
Chairman Darrington, Vice Chairman Lodge, Senators Sorensen,
Richardson, Bunderson, Enid Lee Davis, Sweet, Marley, Burkett
MEMBERS

EXCUSED:

Senator Bart Davis
MINUTES: The approval of the minutes will be at the next meeting, as time did not
allow the Senators to read them prior to making a motion.
RS13708C1 Senator Burkett presented this legislation to allow private citizens to
initiate action to expose fraud and recovery of government monies.
Fraud against the government can take multiple forms; among the most
significant are procurement fraud, false claims, and Medicare/Medicaid
fraud. The private citizen exposing fraud will share in any money
recovered.
MOTION: Senator Lodge made a motion to send RS13708C1 to print. Second
was by Senator Marley and the motion carried by a voice vote.
RS14055 Richard Stover, Boise City Assistant City Attorney presented this
legislation that clarifies a law that was passed two years ago. It doesn’t
change the search issues, but makes it is a misdemeanor to refuse to
submit to a search or screening of your person or personal belongings 1)
upon presentment of a ticket to board an airplane; and 2) upon entering
or attempting to enter the sterile area of an airport. This legislation also
clarifies that it is a misdemeanor to assault, delay or obstruct authorized
personnel in the performance of their assigned duties within the airport.
MOTION: Senator Marley made a motion to send RS14055 to print. Second was
by Senator Richardson and the motion carried by a voice vote.
Senator Darrington told the audience and committee that Frederick
Wiseman and his film crew were doing a documentary on the Idaho
Legislature, and had been filming many committee meetings and action
on the floor this year. He commented that it would be very interesting to
view the documentary and see those who had participated in legislation.
S1263 Kathy Baird presented this bill relating to the sexual offender registration
to further define the term “violent sexual predator” and to provide that the
Sexual Offender Classification Board may consider reviewing referred
offenders for violent sexual offender designation. Section 18-8314
contains two amendments. The first is the inclusion of language
providing the SOCB with the latitude to consider whether an offender
who has been referred for violent sexual predator review truly warrants
full review. By interpretation of existing language, the board will review
all offenders who are referred. The designation has a lifetime impact on
the offender, and the review process is time-sensitive. This change
would prevent the situation of the board being required to review
someone who is referred by staff inappropriately; or because of other
circumstances it would be better off to wait and consider the review
closer to the offender’s full term release.



The second amendment would provide for the SOCB to review Idaho
offenders who are serving probation for federal or tribal convictions. Ms.
Baird was approached last year by an Idaho federal probation officer
who was interested in referring an offender to the board for VSP
designation review. Existing language does not address this situation
and while they may legally be able to review the federal offenders, there
are questions a out referral eligibility criteria. These are sexual offenders
living in Idaho who were convicted in federal or tribal courts and are
under probation supervision for those courts.






Federal probation officials have expressed a desire to refer federal
probationers residing in Idaho to the Sexual Offender Classification
Board for review for violent sexual predator designation. Interpretations
of the existing law question whether, or to what extent, such referrals can
be effected.

Secondly, when an offender designated as a violent sexual predator
plans to parole to or reside in another state immediately upon release
from incarceration, a question is raised as to which court has jurisdiction
over his request for judicial review of the designation. This proposal
identifies the sentencing court for the most recent sexual conviction as
the appropriate court to hear such appeals.



When an offender who has been designated as a violent sexual predator
files for judicial review of his designation, the court of the county inw hich
he intends to reside upon release will hear the review. But if the offender
intends to move out of state upon release, the out of state court has no
jurisdiction over such a review. This amendment identifies the county of
the offender’s most recent sexual conviction as the appropriate court to
hear VSP appeals in cases where an offender intends to reside out of
state upon release from prison.

MOTION: Senator Sweet made a motion to send S1263 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.
S1243 Bob Wells, presented this bill relating to video voyeurism and adding a
new section to Idaho Code to define the terms and provide for the crime
of video voyeurism and to provide a penalty. This also includes the
crime of video voyeurism for purposes of the sexual offender registration.
Mr. Wells had put the additions into the present statute in color for
clarification. (See attached #1)



Senator Burkett asked why IACI was interested in this amendment. Mr.
Wells replied that it was for the Worker’s Compensation issues. The
original language would hamper the investigation of a workman’s comp
claim, and this makes it more clear that it only applies to filming of
intimate areas of a person’s body.

MOTION: Senator Lodge made a motion to send S1243 to the floor in the 14th
order for amendment. Second was by Senator Marley and the motion
carried by a voice vote. Senator Darrington will carry this bill on the
Senate floor.
ADJOURNMENT: Meeting was adjourned at 2:50 p.m.






DATE: February 16, 2004
TIME: 1:30 p.m.
PLACE: Room 437
MEMBERS
PRESENT:
Chairman Darrington, Vice Chairman Lodge, Senators Sorensen,
Richardson, Bunderson, Davis, Sweet, Marley, Burkett
MINUTES: Senator Sweet made the motion to approve the minutes of February 11 as
written. Second was by Senator Sorensen and the motion carried by a
voice vote. Senator Richardson made the motion to approve the minutes
of February 13 as written. Second was by Senator Sorensen and the
motion carried by a voice vote.
GUBERNATORIAL APPOINTMENT

Mike Matthews to the Commission of Pardons and Parole for a term
commencing February 2, 2004 and expiring January 1, 2007

Mr. Matthews told the committee that he was born in Declo, raised in Declo
and has lived there all his life. He received his degree at Idaho State
University and his masters at Idaho State University , and has been teaching
school in the Burley/Declo schools for 33 years. He has taught English and
Math, coached basketball, track, football and been athletic director. He
heard there was an opening on the Commission of Pardons and thought he
would like to serve on the Commission. He commented, “After working with
kids for so many years and hoping they never get to this point, it is
interesting to be on this side.” He will work to try to make the system work
better. He is available for service and is glad to serve.



Senator Lodge commended Mr. Matthews for his years of service in
education and asked him what skills he possessed to be an addition to the
Board. He responded that he was a listener and a hearer and had been in
problem solving situations all his life, and he felt those skills would be
valuable.



Senator Sorensen asked if he had attended any meetings, and what he
would like to see changed, to which he replied that he had not yet attended
any meetings, but that change is a process not an event and he wants to
learn. He knows a lot of footwork is being done and very professionally.



Senator Richardson asked Mr. Matthews how he felt about the attitude, “Do
the crime, pay the time.” Mr. Matthews responded that he supports the laws
of the land and to access the risk to society and expect the parolees to
follow the laws is only right.



Senator Bunderson asked Mr. Matthews about preparation for inmates
and should the prison have a system in place before they are released. Mr.
Matthews
replied that as many avenues as possible should be pursued to
help the individual not to come back when they are paroled. He felt that
education is a big help as they need some skills to survive in life.



Senator Davis asked Mr. Matthews why, of all the Boards there are, he
would want to serve in this assignment and he replied that he would like the
opportunity to continue to serve on the opposite end of the spectrum than he
had served for a number of years. He didn’t know anything about any other
boards.



Senator Sweet asked Mr. Matthews about his general thoughts on the term
“protecting society”. Mr. Matthews told the committee that a decision has to
be made to release someone back into society. Nothing is worse than to
have them commit a more heinous crime than they had done originally.

RS13869 Senator Brent Hill presented this legislation that would add spores of
mycelium, capable of producing mushrooms that contain psilocybin or
psilocin, to the list of Schedule I controlled substances. The Board of
Pharmacy needs it to close a loophole that makes it so law enforcement
cannot prosecute those who obtain the spores that contain the drug. The
spores grow what is called a “sacred mushroom” that contains a
hallucinogenic drug. Senator Burkett asked if this might be the start of a
move to see anything used to grow a controlled substance included.
Senator Hill said that was not the case, as there is no other purpose for a
person to have these spores than to grow the mushrooms. Senator
Bunderson
asked if these mushrooms can be mistaken for those found in
the grocery store. Senator Hill said he had learned a lot about the spores at
a web site, <shroomwizard.com> that the mushroom is already on the
Schedule 1, but the spore is not, so this legislation will add the spore.
MOTION: Senator Sorensen made a motion to send RS13869 to print. Second was
by Senator Lodge and the motion carried by a voice vote.
RS13796 Senator Davis presented this legislation that would put a floor on statutory
judgement interest rates of 10%.
MOTION: Senator Burkett made a motion to send RS13796 to print. Second was by
Senator Sorensen and the motion carried by a voice vote.
RS13799 Senator Davis presented this bill that would add to and amend existinglaw to provide for the testing for alcohol, drugs or other intoxicating
substances of persons operating vessels on waters of the state; to prohibit
persons under the age of twenty-one years with specified alcohol
concentrations from being in actual physical control of vessels on the waters
of the state; and to provide that certain persons authorized to withdraw blood
for the purpose of determining the content of alcohol or other intoxicating
substances shall be immune from criminal liability.
MOTION: Senator Sorensen made a motion to send RS13799 to print. Second was
by Senator Lodge and the motion carried by a voice vote.
S1280 Kandee Yearsley, Child Support Program manager with the Department of
Health and Welfare, presented this legislation regarding financial institution
data match for Child Support. Single parents in Idaho are owed over $380M
in past due support. Financial institution data match, or FIDM is an
aggressive enforcement tool that targets parents who have the financial
resources to pay but won’t. The FIDM process is the last resort means of
collecting support and used only after every other available enforcement tool
has been used with no success.

Child Support’s responsibility to single families in Idaho is to establish and
collect court ordered support. The FIDM process, which was mandated by
The Personal Responsibility and Work Opportunity Reconciliation Act of
1996 (also known as Welfare Reform) includes seizing financial assets to
offset the arrears balance on cases where the balance exceeds $2000.00, or
is 3 months in arrears and there have been no payments at least three
months.

Idaho ranks near the bottom in National performance at 44th in FIDM
collections. To date, Idaho has only collected $1800.00 through the FIDM
garnishment process, while states using an administrative process are
collecting in excess of one million dollars annually.

This proposed legislation is a change in procedures, allowing Idaho to
streamline the process. The current garnishment process is labor intensive
and has produced no real results. It is expensive, burdensome and time
intensive not only for Child Support, but also for our partners in the Courts,
Sheriff’s offices and financial institutions statewide.

With the proposed administrative process, potential collections in excess of
one million dollars per year are estimated to be distributed to single families
in Idaho, which can reduce dependence on state cash assistance.

The proposed legislation will allow Idaho to cross state lines to collect
support for Idaho children whose non-custodial parents do not reside in
Idaho. Other states use their administrative process to cross into Idaho to
collect support, so in some cases, Idaho’s children are losing money to their
siblings living in other states.

This proposed legislation provides due process for the non-custodial parent,
and allows the Dept. to work more effectively with the financial institutions to
expedite the collection of support for Idaho’s children.

The legislation is being moved from Title 56,the Public Assistance and
Welfare statutes to Title 32, the Domestic Relations statutes. This provides
more uniform placement for Child Support Statutes and this authorizes the
Dept to conduct the FIDM process and allows Idaho to reach assets located
in other states. This proposed legislation has the full support of both the
Idaho Credit Union League and the Idaho Banker’s Assn. (See attached #1
and #2)



Senator Davis had some concerns about due process, and Ms. Yearsley
deferred to the deputy attorney general, Jerold Lee, who explained that all
the provisions are in the domestic relationship law. If the non-custodial
parent has kids over 120 days, it allows them to get credit. The Dept. wants
to honor the integrity of the law. Senator Davis asked if a parent would
have to fight administrationally with the department and then judicially with
the court to modify the orders. Mr. Lee responded that the process allows
for appeal of final order to the judicial system. Any modifications will be
handled by judicial order. Mr. Lee agreed with Senator Davis that the
situation had been identified that needs to be addressed in this legislation.

Senator Bunderson asked Mr. Lee if they would like to fix the issue with an
amendment or let it stand, and Mr. Lee agreed to fix it with an amendment.

MOTION: Senator Bunderson made a motion to send S1280 to the 14th order for
amendment. Second was by Senator Sorensen and the motion carried by
a voice vote. Senator Bunderson will carry this bill on the Senate floor.
S1261 Chris Bray presented this bill that relates to child custody. The decision
regarding a proposed relocation of children is one of the most difficult and
complex decisions a family law judge has to make. This bill provides eight
factors which a family law judge may consider in doing so. Consistent with
recent Idaho Supreme Court decisions, these factors create a balanced
standard for judicial decision making. Litigation throughout the State of
Idaho may be reduced when parents have statutory standards to follow.
These factors were derived from the Model Relocation Act created by the
American Academy of Matrimonial Lawyers and resulted in this legislation.
Each section focuses on a child’s interests rather than a parents. Senator
Davis asked if the court had rejected any factors of section 32-717E and
was told they had not.



Charles Bauer told the committee that he agreed that the State needs to
address when a parent moves with a child, but he felt that this bill would
create more problems than it solves. Women make up 90% of those who
have a primary relationship with a child and when they want to continue their
lives hasn’t been addressed. He presented a letter to the committee. (See
attached #3)



Judge Michael Dennard addressed the committee and mentioned that this
legislation had circulated through the judiciary. The bill in its present
modified form lists a number of non-exhaustive factors the judge must
evaluate along with any other relevant factors, in considering a request to
allow the relocation of a child to another place of primary residence. Virtually
all the judges felt the factors listed, with one exception, are relevant factors
to consider in such cases. The questionable factor was number 6, and
although this section does state that the focus is on whether the relocation
the of child will enhance the general quality of life for both the custodial party
seeking relocation and the child, many judges expressed concern that this
factor is a departure from a standard which focuses solely upon the best
interests of a child, not that of the parent. Another criticism was that this
factor seems to favor the party seeking relocation since it does not require
the court to consider the impact that the relocation of the child might have on
the quality of the life of the parent being left behind. The judges were
unanimous in feeling that they already have the ability to consider these
factors under the present statute and court rulings. There was some concern
expressed that this new statute may be interpreted as setting a different
standard for considering custody modifications.



Senator Sorensen felt that maybe the committee should review the judges
opinion on this bill, before the committee continues with the bill on
Wednesday.

Adjournment: Meeting was adjourned at 3:05 p.m.






DATE: February 18, 2004
TIME: 1:30 p.m.
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 February 16 as
written. Second was by Senator Richardson and the motion carried by a
voice vote.
Committee

Vote:

GUBERNATORIAL APPOINTMENT

Mike Matthews to the Commission of Pardons and Parole for a term
commencing February 2, 2004 and expiring January 1, 2007

MOTION: Senator Sorensen made a motion to recommend to the full Senate the
confirmation of Mike Matthews to the Commission of Pardons and
Parole. Second was by Senator Lodge and the motion carried by a
voice vote.
RS14014 Senator Davis presented this legislation relating to communications security
to grammatically change and clarify the language of the statute. He
explained that by moving the penalty portion to the introductory section it
makes it more plain that it applies to all of the sub-parts instead of just sub-part e.
MOTION: Senator Sorensen made a motion to send RS14014 to print. Second was
by Senator Lodge and the motion carried by a voice vote.
S1261 Chris Bray continued the discussion of this bill saying that in relocation, or
“move away” litigation cases, the judges rely on section 32-717, joint custody
and treat everyone the same. They have to rely on existing law that doesn’t
deal with the problem. He feels the factors identified in his bill can provide
an immediate, practical benefit to family law judges. They can also be used
at the status conference and by attorneys and the family law judge at the trail
before the litigation begins. There are situations where a settlement of the
entire case is left hanging by one or by a few unresolved issues. The
attorneys can ask to speak to the judge in chambers for “guidance”. Then
the judges is asked to advise what the ruling is likely to be. With this
knowledge, the parties have their best opportunity to resolve the case. With
the application of these factors, the decision by the family law judge can no
longer be criticized as arbitrary or subjective. Their application has the
potential to minimize litigation in “move away” cases and to create standards
for parents to voluntarily resolve their differences.



After hearing the review of the judiciary, Mr. Bray presented an amendment
to his legislation which would change the word “to” to “which may” relating to
including factors to be considered by the court. Also, section 6 would be
deleted that referred to “whether the relocation of the child will enhance the
general quality of life for both the custodial party seeking the relocation and
the child…………..” He told the committee that a judge can have the ability to
go into any child abuse situation with the criteria listed in section 8, “Any
other factors affecting the best interest of the child”.



Senator Davis asked about a non-custodial spouse filing for a change of
custody. Mr. Bray responded that a change of circumstance has to be in the
best interest of the child. Senator Davis then asked if the wording in this
legislation, “other significant persons in the child’s life” would refer to
grandparents and was told that grandparents are not identified or have a
right or interest, but would apply to other relationships, such as step-parents,
who have no rights now, but would have under this law.



Kim Weiland, a single mother living in Meridian told the committee that she
works in Meridian as a waitress to support herself. Before moving to Idaho
in 1995, she was part owner of a restaurant in Oregon. She would like to
see the Idaho law changed, as the Supreme Court ruled 8 months ago that
she cannot leave Idaho unless she wants to give up custody of her son,
Tristan, who is six years old. She would like to go to court reporting school
in Portland, where she would have family help with her children, as well as
the salaries for court reporters are higher than in Idaho. Tristan’s father
refused to give her permission to move to Oregon, but he also didn’t want
custody of their son. A psychologist interviewed all of them and testified that
it would be better if both parents lived close together, and that will always be
the case. She appealed to the Supreme Court because the psychologist
said that if she were living in Oregon there was no question that the child
should continue to live with her, as it was in his best interest. The Supreme
Court agreed that if the move affects the visitation then a person must stay in
Idaho permanently, even if the best interests of the child are to stay with that
parent, regardless of where that parent lives. Because of this decision and
the expense involved in court costs, she had to give up reporting school and
is now working long hours to support her family. She believes that the law
should make the objecting parent prove more than just that visitation would
be interrupted. Other states have considered this issue and are providing
that a primary parent will be allowed to move a child unless it is proven that a
child would be better off living with the other parent. Since her case, she
has learned of other cases in Idaho where children have been allowed to
move to places like Michigan or North Idaho, even though the mother in
those cases didn’t have any educational reason or career reason to make
the move. She thinks it just depends on which judge happens to hear your
case.



Senator Darrington asked Ms. Weiland if this law had been in place, would
she have been allowed to move, and she replied that the only factors the
judge took into consideration was the visitation. She doesn’t favor or oppose
the proposed legislation, she just knew the committee was considering it and
wanted to testify about the unfairness of the present law.



MOTION: Senator Bunderson made a motion to send S1261 to the amending order.
Second was by Senator Marley. A substitute motion was made by Senator
Davis
to hold S1261 in committee. Second was by Senator Sorensen. A
vote on the substitute motion was carried by a voice vote and the bill will be
held in committee.
S1281 Senator Darrington turned the Chairmanship of the committee over to
Senator Lodge while he presented this bill regarding parental consent for
tattooing, branding, and body piercing of any person under the age of
eighteen years. Piercing of ear lobes and piercing for medical purposes are
exempt from this legislation. No tattooing, branding or body piercing may
occur on any person under the age of 14 years. The penalty for violation is
an enhanced misdemeanor with additional penalty for subsequent violation
within one year. Senator Darrington has been working on the idea for the
legislation for about ten years, but recent developments have gotten the idea
into proposed legislation. He feels that parents need to be given a chance to
have a say in permanent things their children do. While some teens may
disagree, the legislation has the support of tattoo and piercing parlors and
many of them already require parental consent.



At the present time, Hawaii is the only state that regulates this industry.

Senator Sorensen asked how the age of 14 was chosen. Senator
Darrington
felt the age of 14 was arbitrary, but he choose it as he taught
this age group for many years. Also, recently he learned that it is the age
when juveniles are bumped into adult court versus the juvenile court. Some
tattoo parlors have suggested age 16. Senator Richardson would like the
legislation better if parental consent was needed until age 18, as tattoos
change with growth from a small one to a distorted one on an adult.



Senator Davis asked if the consent of a minor’s parent was needed only by
one parent and was told that with the diverse relationships in today’s
families, it would be very hard to require consent of both parents.



Mike Kane, representing the Idaho Sheriff’s Association told the committee
that sheriff’s are contacted by parents of underage youth who come home
with a tattoo and there is nothing that law enforcement can do. He also
commented that the age of fourteen is good as the State of Idaho policy says
that under age 14 cannot be prosecuted as an adult . Also, after reading the
religious reform act, tattoos for religious purposes will be okay under this
new law.



Marty Durand, legal counsel for the ACLU (American Civil Liberties Union)
spoke in opposition to the bill. She said that body decorating isn’t recent,
that the Ice Man of Europe had tattoos and in some cultures they have
medicinal purposes. She didn’t feel the bill takes into account other cultural
preferences, such as Hindu people preferring nose rings, and Islanders
tattooing and thinks that families should be the one to decide on this issue.



Skip Smyser spoke in favor of the bill for the Dental Association.



Senator Davis told the committee that his son got a tattoo when he was 16,
as it was a fad. Fads come and go and most of them can be corrected, but a
tattoo cannot and really cannot be successfully removed. He applauded the
chairman on this legislation so other parents don’t have to live with the fads
their children choose to permanently put on their bodies.



Senator Burkett felt that the committee seems quick to grab into the
criminal side of the law, rather than civilly through licensure.



Senator Bunderson felt that the practitioners are more concerned about
their next fee that the health of the client, and this law puts limits on that.



Senator Marley felt that licensing should probably have been looked at
before proceeding with the legislation, but his questions had been answered.



Senator Sweet agreed with Senator Davis on the permanence of these
types of decisions. Some things don’t seem as bad when you do them as
later after you have changed your mind. He felt the religious freedom act
had addresses the cultural concerns and this protects the rights of children,
and he is in strong support of the bill.

MOTION: Senator Sorensen made a motion to send S1281 to the floor with a do
pass. Second was by Senator Marley and the motion carried by a voice
vote.






DATE: February 20, 2004
TIME: 1:30 p.m.
PLACE: Room 437
MEMBERS
PRESENT:
Vice Chairman Lodge, Senators Sorensen, Bunderson, Marley, Burkett
MEMBERS

EXCUSED:

Chairman Darrington, Senators Richardson, Davis, Sweet,
MINUTES: Senator Marley made a motion to approve the minutes of February 18
as written. Second was by Senator Bunderson and the motion carried
by a voice vote.
RS14121 This is a concurrent resolution to reject a pending rule of the Department
of Agriculture relating to livestock marketing and is being printed for
Senator Stan Williams. This bill will be referred back to the Senate Ag
Affairs Committee.
MOTION: Senator Sorensen made a motion to send RS14121 to print. Second
was by Senator Marley and the motion carried by a voice vote.
RS14122 This is a concurrent resolution to reject certain pending rules of the
department of agriculture relating to tuberculosis and the private feeding
of big game animals and is being printed for Senator Stan Williams.
This bill will be referred back to the Senate Ag Affairs Committee..
MOTION: Senator Sorensen made a motion to send RS14122 to print. Second
was by Senator Marley and the motion carried by a voice vote.
RS14026 This legislation was presented for Senator Bart Davis relating to the
Uniform Commercial Code to clarify that farm product filings are treated
differently than non-farm filings, and to insert a clarifying cross-reference
to Idaho Code. This bill will be referred back to the Commerce
department.
MOTION: Senator Burkett made a motion to send RS14026 to print. Second was
by Senator Marley and the motion carried by a voice vote.
S1302 Bob Aldridge presented this legislation relating to guardians of minors
to revise procedures relating to court appointment of guardians of minors
to provide for de facto custodians. “De facto Custodian” means a person
who has been the primary care giver for and financial supporter of, a
child who has resided with the person for a period of six months or more
if the child is under three years of age, and for a period of one year of
more if the child is older than the age of three. If a person meets the
definition of a de facto custodia, the court shall give the person the same
standing that is given to each parent under this act.



Joe Gallegos Associate State Director with AARP of Idaho spoke in
support of the bill and urging the committee to pass it. AARP has seen
increasing numbers assume the primary financial responsibility and care
of minor children when their birth parents have been unable to participate
in, or have chosen to be absent from their lives. (See attached letter #1)



Jacqui Batie, of Idaho Falls, Idaho spoke in favor of the bill as a
grandparent who is the care provider for a 16 ½ year old granddaughter.
They are retired, but have accepted the responsibility of Rachael, just as
other grandparents are doing. They do not have power of attorney or
guardianship, and have tried to obtain this several times, but the parents
refuse to sign anything. This complicates the registration for school,
doctor and dentist appointments, and other issues. Mrs. Batie feels that
passing this bill would benefit children and grandparents, offering a
greater sense of stability, security and rights.



Lin Graham, Idaho Falls, spoke in support of the bill. She is a classic
example of a caring generation who has been willing and sometimes
forced into the world of parenting for a second time, as a care giver of
her granddaughter since birth who will be eight years old in April. Her
daughter is a classic example of her generation, and chose her unstable
lifestyle over her baby, abandoning her child as well as her parents. The
statute 32-717 does not mention grandparents and kin, but it is the
statute that is currently in place on which the judges base their decisions.
In the litigation that followed, Ms. Graham had to stand up for the “best
interest of the child”. This child could be torn from her home and sent
across the United States to reside with a mother she doesn’t know. She
feels that during the two year litigation, the “best interest of the child” was
lost, because there wasn’t a statute in place to define her rights as the
sole care giver and supporter of her granddaughter.



Georgia Mackley, a member of the Idaho Kincare Coalition, AARP,
Capital City Task Force and Chairman of the Boise Area Grandparents
and as a grandparent who is raising a granddaughter. She and her
husband got legal guardianship of their granddaughter when she was 14
months old, but shortly after her 5th birthday, the Judge ordered her to go
live with her father. The father had served two terms in prison and is still
on parole from committing a violent crime. She and her husband get 24
hour visitation each month. This has had a devastating effect on their
granddaughter who is now in counseling.



Mary Zanders presented the committee with a picture of her
granddaughter, Ria, who has lived with Mr. and Mrs. Zanders almost l
her whole life. In October, 2003, the legal system allowed the biological
mother to take Ria even though she has not been a part of the child’s life
and has skated by all of the requirements that would allow the Zanders
to have full custody. Ria recently appeared on Channel 7 telling about
how it feels to live in this situation. She is not doing well in school since
moving and is being told by her mother that she cannot see her
grandparents anymore and that by the time she is eighteen, she will
realize that they are not good for her. Currently there are over 18,000
children in the State of Idaho being raised by grandparents or other
family members. This is a cost savings to the State, as the welfare
system would otherwise be picking up the bill for their care.



Idaho KinCare Coalition presented a letter to the committee urging
passage of Senate Bill 1302. The Coalition is a group of public
agencies, private organizations and individuals who support the efforts of
grandparents and other kin who are stepping in to parent grandchildren,
nieces and nephews during the temporary or permanent absence and
neglect of parents. (See attached #2)



Senator Bunderson commented that this was outstanding legislation
that puts the child first, giving someone to represent them, and offered to
sponsor this bill on the Senate floor.



Senator Sorensen asked what would happen to a child of a parent with
a drug problem. Mr. Aldridge said that should a parent decide to seek
treatment, the child would go with the grandparents for six months. Then
when the parent came back, they would get the child. This bill would
allow the grandparent to consider being more than a de facto custodian.
They could want guardian ad litem, which would be an outside person to
represent the child. He said that the parent always has first choice under
the law. If a person is de facto custodian, they move to equal status, but
not higher than a parent. Parents are automatic guardians, and it must
be an action to take that right way.



Senator Burkett asked if there was a provision for a de facto custodian
to get custody. Mr. Aldridge responded that if a child is residing with a
defacto custodian, it doesn’t mean they automatically get custody. The
best interest of the child always comes before guardianship. Senator
Burkett
was concerned that parents could get their child back when they
were ready and was told that the court looks at stability, changes in their
lives, and their attitudes. Seeing children go into family court can be
damaging to families. Senator Burkett asked if this had been passed in
other states, and was told the language was patterned after language in
Kentucky which had the best definition. Other states such as New York
and Indiana have passed similar legislation. It is going to be constantly
examined as it involves 5 sets of state statutes, and is not a problem
limited to geographical areas.



Jody Carpenter, representing the Dept. of Health and Welfare would like
to see an amendment to the bill or foster care can’t fall into the de facto
custodian category. She said the department does place children with
grandparents, and generally they look to relatives for placement. Giving
non-relatives the ability to come in the picture would be detrimental and
would be at issue with the Department.



Senator Bunderson commented that would be moving from permissive
for a judge to absolute for a judge to rule, and Mr. Aldridge replied that in
the child protection statute, the department has the decision making
expertise. This would be for the protection of the child in the child
protection order. He also told the committee that when State laws
conflict with Federal law, the Federal law wins. He has worked on this
legislation for 15 years, and he is going to walk through it and make it
work. He urged the committee to pass the bill as it is.

MOTION: Senator Sorensen made a motion to send S1302 to the floor with a do
pass. Second was by Senator Bunderson.
DISCUSSION: Senator Burkett commented that he had litigated many of these cases
and he has represented grandparents in gaining guardianship. He
supports the concept of this, but feels that the language is creating a
huge area of litigation and would be extremely expensive. Senator
Sorensen
said she felt comfortable that this was taken from language in
the Kentucky statute.
VOTE: Motion carried by a voice vote. Senator Bunderson will carry this bill on
the Senate floor.
ADJOURNMENT: There was not time for Mr. Aldridge’s other two bills, so S1303 and
S1304 will be heard on Monday. Meeting was adjourned at 3:00 p.m.






DATE: February 23, 2004
TIME: 1:30 p.m.
PLACE: Room 437
MEMBERS
PRESENT:
Chairman Darrington, Vice Chairman Lodge, Senators Sorensen,
Bunderson, Davis, Sweet, Marley, Burkett
MEMBERS
EXCUSED:
Senator Richardson
MINUTES: Senator Lodge made a motion to accept the minutes as corrected- an RS
was printed for Senator Davis, not by Senator Davis as he was absent.
Second was by Senator Sweet and the motion carried by a voice vote.
GUBERNATORIAL APPOINTMENT

Del Ray Holm to the Commission of Pardons and Parole for a term
commencing January 1, 2004 and expiring January 1, 2007

Mr. Holm told the committee that he had been on the Commission for 20
years although not consecutively. He served from 1983 until 1997 when he
was not appointed by the Board of Corrections. Now, the Governor appoints
and it is a better system than before. He had a 3 year leave of absence and
then was reappointed. He said their job is to “empty the prison” and let out
the ones that are most likely to succeed. They usually hear about the
failures in the system, but not much about the successes. Senator
Darrington
commented that “Whenever you have people making decisions,
occasionally they make the wrong decisions but you have to do that
according to certain predictors. He asked about those predictors and are
they fairly adequate and fairly reliable for making good decisions. Mr. Holm
replied that the hearing officer really helps them out by writing the report and
doing the groundwork, then gives them the study on the inmate. Then they
consider the conduct within the prison and are able to make the decision
based on those reports and hopefully it is the right one.



Senator Darrington asked how successful the programs were that the
inmates are going through. Mr. Holm responded that they are very
successful, and they do a great job. It takes 9 months to a year to go
through and the inmates that do go through have a 65% success rate. There
has been a concentrated effort by the Director and staff to get the inmates
out on their parole date, and it has been very successful.



Senator Lodge questioned that where he had been on the Commission for
20 years, why he would want to continue this difficult work. Mr. Holm feels
like he contributes, that he has empathy and good judgement in this area.
He realizes they make mistakes, but also there is a certain amount of
satisfaction when these programs succeed. Senator Lodge was interested
in the programs teaching discipline, self-discipline, lifetime skills and asked if
there was a difference in the inmates who go through those programs and
those who have not on the outside. He said there was a great difference
especially in the drug and alcohol program, as well as the teen and TC
program and the recidivism rate is much less when an inmate participates.



Senator Burkett asked about the day to day counselor and the hearing
officer and how they work together. Mr. Holm responded that the counselor
who works with the inmates makes a report, and then the hearing officer
completes that report on the individual. When he first came on the board,
there were about 800-1000 inmates, and now there are 6000. As a part-time board they wouldn’t be able to function now without the aid of the
hearing officer who makes it easier to evaluate the inmate and make those
important decisions. There is a conscious effort to contact the victims and
make them a part of the hearings.



Senator Marley commended Mr. Holm for his willingness to do this work
and thanked him for his service.



Senator Bunderson asked for an assessment of the results of the drug and
alcohol programs and are they adequately funded and are preparing those to
go back into society. Mr. Holm responded that there can always be
improvements, but he is satisfied that the programs are operating very well
and are a great benefit to the people of the state of Idaho, as well as the
inmates and their families. They make every effort to rehabilitate them and
put them back into society. Sometimes inmates cannot get into he programs
because of a waiting list, but the Board is doing the best job they can.



Senator Sweet asked over the next 10 years, what would be the biggest
challenge the Board would face and was told that it would be drug and
alcohol treatment for the vast number of addicts that come into the
institution. The real problem starts in the family, but then it ends up with the
treatment. Why they use drugs is a different story, but the Commission ends
up with the treatment phase and the judgement on whether they can be
released.



Senator Darrington thanked Mr. Holm for answering the committee’s
questions, and told him that the vote will be at the next meeting.

Senator Darrington explained to the committee that S1332 would be held
until Friday. Also, the committee had been asked to print legislation by other
Chairmen and the following bills will be returned to the respective
committees.
RS13863C1 Relating to Inverse Condemnation – Senate Transportation Committee
RS14141 Relating to the residential mortgage practices act- Commerce Committee
RS14133 Relating to the employment security law- Commerce Committee
RS14134 Requires general contractors to provide information to and gain approval of
homeowners for work in excess of $2000.- Commerce Committee
RS14132C1 Relating to alternative teacher qualifications to impose limits on adoption of
an alternative teacher qualification program and to require research and a
report.- Education Committee
MOTION: Senator Sorensen made a motion to send RS13863C1, RS14141,
RS14133, RS14134 and RS14134C1 to print. Second was by Senator
Lodge
and the motion carried by a voice vote.
RS14149 Relating to the worker’s compensation law to revise the definition for
“community service worker” is legislation from Jon Sowers and will be
referred to Local Government and Taxation Committee.
MOTION: Senator Sorensen made a motion to send RS14149 to print. Second was
by Senator Marley and the motion carried by a voice vote.
RS14164 Heather Reilly, Idaho Prosecuting Attorneys Association presented this bill to
correct a potential “loophole ” that may allow a person who has been indicted
by a grand jury, to avoid prosecution under the indictment by avoiding arrest
for six months after the indictment is filed.
MOTION: Senator Sorensen made a motion to send RS14164 to print. Second was
by Senator Lodge and the motion carried by a voice vote.
RS14138 Senator Marley presented this legislation that amends and adds to an
existing law to establish an Idaho Freemason license plate program to
express their brotherhood and fraternal order and shall be used exclusively
for supporting charitable activities. This bill will return to the Senate
Transportation Committee.
MOTION: Senator Sorensen made a motion to send RS14138 to print. Second was
by Senator Lodge and the motion carried by a voice vote.
S1303 Bob Aldridge presented this as a trailer bill to S1251.This legislation relates
to probate of wills and filing of claims to change the time limit for filing of
claims from two years to three years. The existing language limits the
presentation to two years, but probate can be filed up to three years. The
problem is that people were waiting for 2 years and a day to file probate to
avoid paying Medicaid State recovery and no claim could be presented.
This is unfair, is cheating the tax payers of Idaho and avoiding a proper
repayment system. This legislation will solve that problem, by changing the
two year limit after death to a three year limit after death when a probate
claim can be filed.
MOTION: Senator Bunderson made a motion to send S1303 to the floor with a do
pass. Second was by Senator Lodge and the motion carried by a voice
vote.
S1304 Bob Aldridge told the committee that this legislation makes substantial
changes to the Homestead provisions of Idaho Code and includes a
revocation of section 55-1010. In consultation with the estate recovery
division of Health and Welfare, the best way to clarify and simplify the
methods used by Estate Recovery would be by enacting a new section with
the language in this bill. The same result may still be reached through
probate procedures without enactment of this new section, but the new
section w ill make the legal situation absolutely clear.
MOTION: Senator Marley made a motion to send S1304 to the floor with a do pass.
Second was by Senator Burkett and the motion carried by voice vote.
S1369 Senator Davis presented this bill that would put a floor on statutory
judgement interest rates of 10%. He told the committee that 15 years ago, a
floating rate was attached to interest rates, and is a good way for a debtor to
make an investment. This rate needs a floor put on it.

Allyn Dingel, representing State Farm spoke in opposition to the bill. He
referred to a card from the State Treasurer’s Office (See attached #1) that
showed the interest rates from before July, 1987 to July, 2002, and the
present rate of interest at 6% until July 2004 and that it had been changed 8
times. He said that interest rates should not be put on judgments, and that
the floating interest rate should be maintained. If the rate should go below
10%, with this legislation, the charge would always be at least 10% and he
knows that State Farm and others would appeal.



Senator Burkett asked if there was a problem when the interest rate was
about 8 to 10%, or did the problem come when the interest rate went very
high? Mr. Dingel responded that the interest rate was 6% in the 1970’s and
during the early 80’s went up to 21%. He told he committee that the interest
rate should be in the ball park and shouldn’t be used to pay a debt on a
judgment, or there will be appeals whether they know the interest rate or not,
because they feel wronged. Senator Davis asked what percentage of cases
are appealed, and was told that 3% of cases get tried, and 10% of those get
appealed. Senator Davis asked Mr. Dingel if the insurance companies were
concerned over 10% of 3% and he responded that they sure were, because
if a person was in the 10% of the 3%, it would have an effect on them. He
also had a problem if the judgment was appealed as the bond would be
140% of that judgment.

Senator Davis felt that this was a motivation for people to pay an invoice on
time if the interest rate was high. Mr. Dingel felt that a finance charge would
be better motivation.



Phil Barber, representing the American Insurance Association, of over 300
carriers spoke in opposition to the bill as it applies to all defendants. He has
worked with interest rates for 34 years and represented both sides. For
years, the rate of judgment was tied to usury law. Finally in the 70’s the
focus was on consumer credit as a problem. The market place interest rates
vary by two things…inflation rate and the price of money. He referred to the
card from the Treasurer’s office and said that the interest rates there were
higher than interest rates as they are based on the market and the value of
money is measured against the market. There was a problem, but
previously it wasn’t a big problem.



Senator Davis asked Mr. Barber if interest should be entitled as a matter of
law. Mr. Barber quoted from the bill, on line 8, “When there is no express
contract in writing fixing a different rate of interest, interest is allowed at the
rate of twelve cents on the hundred by the year ” and felt that would do away
with it. Senator Davis felt that this would let the borrower know what the
rate should be. Mr. Barber commented that the borrower shouldn’t lose
money because the judgment creditor gets more.



Brad Dixon, Property Casual Insurance Company representing 1000
customers told the committee that compensation for use of money would
give the judgment creditor a windfall.

MOTION: Senator Sweet made a motion to send S1369 to the floor with a do pass.
Second was by Senator Burkett.
DISCUSSION: Senator Burkett felt that the fixed rate is good at the lower level, because
there is a difference between banks and small businesses. Banks are
loaning money at market rate, and small business are not in the banking
business, they don’t want to loan the money, they want to get the money so
they can have it for operating capitol and keep their business afloat. There
needs to be some low level of protection and 10% is fair. Senator
Bunderson
commented that he is more comfortable with the language that
is in place already. He doesn’t see any compelling reason to put a floor on
the rate and wonders if it would accomplish a great deal. If you look at
market rates, this would only have applied in 1992 and 2001 and 2002. He
doesn’t see a problem, feels that the market should govern the interest rate
and it can be calculated on an independent source. It is a known factor and
the motivation would encourage people to settle. The factors driving
settlement won’t be the interest rate, there are other factors that are more
compelling.
SUBSTITUTE

MOTION:

Senator Bunderson made a substitute motion to hold S1369 in committee.
Second was by Senator Sorensen.
DISCUSSION: Senator Davis commented that he has filed an appeal or two over the years
and he can certainly represent to the Court that the interest rate calculation
projected for this year is up for discussion. That 6%, it gets to the point
where business is probably less concerned about it. At 18% there is too
much anxiety about it. He just knows that in their family situation with a
small business, that when money is owing and it has a meaningful rate, they
get paid. There are a lot of judgments out there that aren’t getting paid. He
feels that people file suit and get judgments so they can play the market. His
clients, who are small business owners, sue, because they need their bills
paid. When he has a finance charge of 21%, then he is being told the
minute the court enters the judgment it is 6%, he said there is some
intellectual nexus, but he doesn’t get it. He feels that setting a modest floor
of 10% which is below the legally recognized rate of open accounts is
burdensome or cumbersome, and he votes on the original motion. Senator
Burkett
represents small business as well as some who have the judgments
against them and being collected, and getting money at 6% is like a gold
mine for them. He said, “Otherwise, they are down at the Money Store
paying 21% or 40% sometimes for some of these outrageous loans. Some
of those who have testified today are representing big companies, big
enterprises, but what is happening on the street is small business versus
folks that owe money, and that is a whole different game, and I think we
need to protect small business”. Senator Bunderson said there are other
ways of persuading people to pay bills, such as offering a discount which is
a common practice, or offer a net 30 day pay, so the interest rate is not
always the factor that makes the difference. He stated that “The difference
between 6 and 10% is modest enough that there are other factors driving my
decision”, and he supports the substitute motion.
VOTE: Voting Aye, Senators Bunderson, Marley, Sorensen, Lodge and
Darrington, Voting Nay, Senators Davis, Sweet and Burkett. The
substitute motion passed and S1369 will be held in committee
.
H586 Mike Kane presented this bill designed to amend the Idaho criminal statute dealing with nepotism to reflect the legislative intent contained in the
Ethics in Government Act. Under the current law, it would be a criminal
offense to give a merit raise or promotion to any person working for a county
or city where that person has a relative by blood or marriage to the second
degree acting as a city councilperson or mayor or county commissioner. For
all practical purposes, the county or city worker is frozen in his or her career
until the relative leaves office. This bill adopts the language of the Ethics in
Government Act, which only applies to the dependants or spouse of the
elected official. In other words, only spouses or dependants will have their
careers frozen during the elected official’s tenure in office.
MOTION: Senator Davis made a motion to send H586 to the floor with a do pass.
Second was by Senator Sorensen and the motion carried by a voice vote.
S588 Mike Kane presented this bill that was designed to delete obsolete language
from the Idaho Code pertaining to duties of the sheriff in regard to keeping of
jails. The four statutes in question were all enacted in the nineteenth century
and have no application to modern correctional practices. He quoted the
statute 20-608 that required a sheriff to remove a prisoner to a safe and
convenient place when a county jail or a building close to it is on fire. He
told the committee this was put in law in 1864 and is just common sense
now.
MOTION: Motion was made by Senator Lodge to send H588 to the floor with a do
pass. Second was by Senator Sorensen and the motion carried by a voice
vote.






DATE: February 25, 2004
TIME: 1:30 p.m.
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 25 as
written. Second was by Senator Lodge and the motion carried by a
voice vote.
Committee Vote: GUBERNATORIAL APPOINTMENT

Del Ray Holm to the Commission of Pardons and Parole for a term
commencing January 1, 2004 and expiring January 1, 2007

MOTION: Senator Burkett made a motion to recommend to the full Senate, the
confirmation of Del Ray Holm to the Commission of Pardons and Parole.
Second was by Senator Sweet and the motion carried by a voice vote.
Senator Marley will sponsor Mr. Holm on the Senate floor.
RS14173 The Education Committee requested that this be sent to print regarding
charter schools and then referred back to their committee.
MOTION: Senator Lodge made a motion to send RS14173 to print. Second was
by Senator Marley and the motion carried by a voice vote.
RS14192 Patti Tobias, Idaho Supreme Court, presented this bill that will increase
the annual salary of the justices of the supreme court, judges of the court
of appeals, district judges, and attorney and nonattorney magistrate
judges by two percent beginning July 1, 2004.
MOTION: Senator Richardson made a motion to send RS14192 to print. Second
was by Senator Marley and the motion carried by a voice vote.
S1371 Senator Hill presented this bill that would add the spores of mycelium
that are capable of producing mushrooms that contain psilocybin or
psilocin to the schedule I controlled substances list. He found the
definition of Psilocybin in the National Drug Threat Assessment of 2002
catalog. “Psilocybin is a hallucinogen that can be produced synthetically
but is found more commonly in several species of mushrooms.
Independent growers cultivate psilocybin mushrooms indoors and
frequently harvest those that grow wild.” He then told the committee what
the ingestion of psilocybin does, “Psilocybin use causes a variety of
physical and mental effects including hallucinations, euphoria, anxiety,
panic, paranoia, stomach cramps and nausea. Psilocybin mushroom can
cause death if ingested in large doses, and effects can last up to 8 hours.”
(See attached #1c)



Senator Hill deferred to an attorney from Rexburg who had represented a
client found in possession of the psilocybin spores.



Greg Mueller presented the committee with a booklet on the
“Hallucinogenic Mushroom Spores: A Loophole that Needs Closing”, of
documents concerning this bill. Psilocybin or “magic” mushrooms are
found in a number of environments, and the drug type produces similar
effects of LSD, but not quite to the same degree. (See attached #1A)



He told the committee that the psilocybin mushrooms are widely used by
young people, and although the chemicals psilocybin and psilocin and the
mushrooms that contain these chemicals are illegal, the spores necessary
to grow the mushrooms are not. Therefore psilocybin mushroom spores
can be legally purchased over the Internet. Complete kits and the
supplies required for harvesting the mushrooms, including detailed
instructions, can be easily purchased via the Internet at a very reasonable
price. He referred to a page that he had printed from an internet sight
that had a disclaimer that “You must be 18 or order to order psilocybin
spores. Growing shrooms is illegal in all States in the United States…..”
(See attached #2) and an order form (See attached #3 The spores come
through the mail in a syringe, and possession of the syringe is not illegal
at the present time. This is the loophole that Mr. Mueller hopes to close
with this legislation. He referred to his client as just a “stupid kid” who
was told the mushrooms were legal. He had the spores in the syringe but
hadn’t started them growing yet, so Mr. Mueller was able to prove that he
hadn’t done anything illegal. Then he felt he needed to contact Senator
Hill
to create legislation to close that loophole.

MOTION: Senator Sorensen made a motion to send S1371 to the floor with a do
pass. Second was by Senator Lodge and the motion carried by a voice
vote. Senator Hill will carry this bill on the Senate floor.
H518 Brent Reinke presented this bill that is the juvenile answer to what has
been done with the adult system. Forty-seven states have adopted this
Interstate Compact and twelve states have adopted the Juvenile
Interstate Compact. There won’t be action until 35 states have adopted
it and it would be to Idaho’s advantage to be one of the first 35 who will
meet and draft the rules for the compact. (See attached #4)



Senator Darrington commented that the cost would be about that of
keeping an inmate. Senator Bunderson asked about a reciprocal
relationship, as shown on page 2 of the handout. Mr. Reinke pointed out
that it will be a challenge if the other states don’t adopt the compact.



Senator Richardson asked about the record keeping and was told that
eventually it will be an internet based program. Now, a packet needs to
be sent to the state and it takes 8-12 weeks to accomplish the process.
The counties were frustrated because the state doesn’t know what was
going on. In one instance, a juvenile was transferred, stole a car, ran a
stop sign and a person was killed.



Police Chief, Michael Johnson spoke in support of this bill. He said Idaho
needs to have the ability to manage juveniles from state to state. T o
have Idaho be one of the first 35 states puts us in the drivers seat for
making the rules, and he urged the committee to approve the bill.

MOTION: Senator Lodge made a motion to send H518 to the floor with a do pass.
Second was by Senator Burkett and the motion carried by a voice vote.

Senator Lodge will carry this bill on the Senate floor.

S1333 Richard Stover, Boise City Office of the City Attorney’s office presented
this bill that relates to aircraft and airport safety. He said that two years
ago, the legislature made it against the law to carry a weapon into a
sterile area. Now there is a problem with subsection 5, 6, and 7 and
some judges are tossing the cases out as there is no penalty. There is no
language for when a person refuses to let airport security screen their
luggage. The language needs to be added for the judge to know what the
intent is. In subsection 5, new language is “Any person who pleads
guilty to or is found guilty of refusing to submit to a search or screening as
provided in this subsection shall be guilty of a misdemeanor.”



According to case law, when a person puts their bags on the conveyor
belt, they are giving consent to be screened. If they change their mind
and become uncooperative they can be taken to a separate room, but if
they are deliberately trying to be disruptive, and refusing to allow a
search, there needs to be penalty, other than asking them to leave. If
they are allowed to retreat, this gives terrorists a break as they can take
their chance on being caught. This loophole needs to be closed.



Senator Sorensen asked if this was a problem in Idaho and was told that
there was a case in Ada County. TSA is not to clear a bag or a person if
they see a problem, or a suspicious lump in a bag and they need to be
able to deal with those intentionally trying to bring drugs, etc into the
airport and refusing to cooperate.



Marty Durand of the ACLU spoke in opposition to this bill on 4th
amendment purposes. If someone gives consent, they have the right to
withdraw their consent to search and should be able to do so without legal
repercussions. She realizes that the intent is to keep weapons off aircraft,
but the bill can address this by deleting the added language in sections 5
and 6.



Mike Johnson spoke that this speaks to a different part of the bill and the
9th circuit ruled on it. This refers to “willfully, intentionally concealing a
weapon”. When an individual puts their bags on the x-ray and then
decides they have illegal items in there and don’t want it searched, they
can retrieve the bag and take it to the car. This is for those who refuse to
be screened or searched, and there is already a law for that, but it needs
a penalty.



Senator Davis commented that there are civil penalties and when it
becomes Federal, the law comes down hard on an individual. He likes to
handle these cases on a local basis.

Senator Burkett asked if a person refuses a request to be searched. He
was told that if the line was crossed, the bag goes on and the person
goes. TSA will ask to see what it is and then deal with it. A person can
be escorted out and the luggage would go to security. Mr. Johnson would
like to have the “teeth” to deal with it.



Senator Darrington asked if this was a case of the State law being put
into force to enforce a federal regulation, and was told no, the problems
can be taken care of on a local basis, so they don’t have to go to a felony
on a federal level.



Senator Sweet asked if there would be problems of going to a stricter
penalty, and was told that “the Feds would prefer that it is taken care of
on a local level, and he felt that they were putting a patch over a hole
before it rained, and the penalty should be in state code.” He felt that
Boise really gives a harried traveler latitude, and prides their department
on how many they don’t have to arrest, rather than like some other
airports in the nation, priding on how many they can arrest”.



Senator Davis would like to see a balance between the right to withdraw
consent and the chilling influence of the wrong doers by taking a chance
they won’t get caught, but he felt this was needed.

MOTION: Senator Davis made a motion to send S1333 to the floor with a do pass.
Second was by Senator Sorensen.
DISCUSSION: Senator Sorensen felt there was greater comfort knowing that what goes
on the belt to be screened is “willfully and intentionally” brought and this
takes care of the problem.



Senator Burkett commented that he felt that the “Search and Seizure”
law is being extended too far by this as a situation could lead to a search
other than for dangerous items. Senator Bunderson felt that the existing
law as defined is adequate, and in earlier times, he would have opposed
it, but in the times we live in today, he is not in opposition. Senator
Marley
asked where the sterile area started, and Senator Lodge defined
this area as where the sign says “No passengers beyond this point.”

COMMITTEE

VOTE:

Motion carried by a voice vote.
S1235 Senator Burkett presented this bill which revises the definition of
terrorism to insure that it does not include misdemeanor acts and those of
protest or civil disobedience that are not intended to endanger human life.

He felt the law passed in Idaho in 1998 went to far, and could include acts
that would constitute terrorism. The crime has to have intent to be a
felony.



Major General Kane spoke in opposition to this bill. He said the state
statute was a modeled after a federal law. He told the committee that ”
This was done with the understanding that the State could inherit
terrorism cases from federal authorities, and it is also conceivable that
they might refuse to prosecute an alleged terrorist act. It is easier for the
state to coordinate and to transfer these criminal cases when our statute
is a reasonable reflection of the federal law. For this reason, it is
inappropriate to change this statute.”



Senate Bill 1235 requires that the criminal act be “IMMINENT” and could
limit a prosecution if someone planted an explosive device knowing it is
going to explode, “Imminently”. The proposed change also excludes
property damage, thus threats to critical infrastructures are not covered.
The bill also requires that the perpetrator have an “intent to cause
imminent danger” and this adds a burden for prosecutors to prove that
this is an element of the crime. He felt that “The only groups that appear
to benefit from this proposed change are the extremest groups who
regularly target property such as logging operations, ski resorts and
power lines.”



Darlene McMaster, testified that she feels the word terrorist is defined too
broadly and is a worry to her, as anyone could be defined as a criminal.
She is concerned that voices can be squelched and knows from
experience that the government can hammer law abiding citizens who not
only have not committed crimes, but have not even voiced dissent. She
asked that the committee correct the definition of a terrorist.

Adjournment: Senator Darrington told the committee that the time had passed for our
committee to adjourn and this bill would be taken up at the next meeting,
on Friday, February 27. Meeting was adjourned at 3:00 p.m.






DATE: February 27, 2004
TIME: 1:30 p.m.
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 approve the minutes as written.
Second was by Senator Davis and the motion carried by a voice vote.
RS14200 Dave Nelson, deputy administrator of operations division for the Department
of Correction presented this bill that extends the same liability protection and
authority of arrest to probation and parole officers supervising drug court
participants, as is provided to them while supervising felony probationers and
parolees.
MOTION: Senator Davis made a motion to send RS14200 to print. Second was by
Senator Bunderson and the motion carried by a voice vote.
RS14198-To allow the Idaho State Department of Agriculture and the Idaho
Department of Fish and Game to work cooperatively to control the spread of
brucellosis in Eastern Idaho-printed for the Ag. Committee



RS14194- To amend the statutory language to broaden the use of “do not
resuscitate orders” and DNR protocols beyond emergency medical services
personnel and to clarify the Department of Health and Welfare’s role and rule
making authority in the section was printed for Health and Welfare Committee
RS14156 To establish the Idaho Prescription Drug Program was printed for
the Health and Welfare Committee.
MOTION: Senator Sorensen made a motion to send RS14198, RS14194, and
RS14156
to print. Second was by Senator Burkett and the motion carried
by a voice vote.
RS14212- Relating to Volunteer Liability to define “Public Service Entity” is a
bill for the Lt. Governor, who is chair of the Council on Mental Health.
MOTION: Senator Davis made a motion to send RS14212 to print. Second was by
Senator Sorensen and the motion carried by a voice vote.
Senator Burkett started the continuing discussion on S1235, relating to the
Terrorist Control Act to revise the definition for “Terrorism”. Mike Henderson,
deputy attorney general spoke in opposition to the bill. He said the issue of
terrorism was dealt with as part of Senate Bill 1348 in 2002. Terrorism
means activities that: 1) are a violation of Idaho criminal law; 2) that involve
acts dangerous to human life; 3) that are intended to intimidate or coerce a
civilian population; influence the policy of a government by intimidation or
coercion; or affect the conduct of a government by the use of weapons of
mass destruction.



There are penalties in the present law for life imprisonment and up to $50,000
fine for conspiracy to commit an act of terrorism, and 15 years imprisonment
and a fine of $50,000 for providing material support to terrorists. This bill
would change “violation of Idaho criminal law” to “felony violation of Idaho
criminal law” and acts “that are intended to be imminently” dangerous. This
could be a problem when a group intentionally blows up a building, in the
belief that no one is present, but there are indeed people in there. If S1235 is
adopted, then it is not a terrorist act. Another example is when a salad bar
was poisoned in Oregon to make people sick so they couldn’t go vote that
day, and would fall outside of the statute if this bill passed. The original
legislation was not passed thoughtlessly or heedlessly, and could possibly be
improved, but this bill doesn’t do that.



Heather Reilly spoke in opposition to the bill on behalf of the Law
Enforcement Legislative Council, which is made up of Law Enforcement
Agencies from throughout the state. This bill was before LELC for discussion
and they voted unanimously to oppose this legislation. The bill would require
prosecutor’s to prove that the offender committed a felony crime and that the
acts were intended to be imminently dangerous to a human life other than
that of the actor. These proposed changes would significantly reduce law
enforcement’s ability to hold terrorists accountable and make the crime
extremely more difficult for prosecutors to prove beyond a reasonable doubt.



Marty Durand, ACLU, spoke in favor of the bill as it narrows the definition of
terrorism, a crime punishable by imprisonment for up to life. America’s
history of political protest includes movements that were not always law
abiding or peaceful, such as the American Revolution, and the Civil Rights.
Americans have a long tradition of petitioning the government for a redress of
grievances to influence the policy of a government. Most are peaceful, but
sometimes political protest becomes unlawful. Protestors block traffic in the
streets and trespass and can damage property. These crimes are often
prosecuted, but are not necessarily acts of terrorism. The ACLU expressed
concern two years ago when the definition of terrorism was first introduced
that the current definition could include protestors who endanger their own
lives in an attempt to change public policy. In this age, terrorism is a serious
threat to our nation and the laws should reflect the serious nature of terrorism
and reserve it to only those actions that are truly deserving.



Robert McMinn representing the Green Party spoke in favor of the bill. His
party has members that take part in civil disobedience as a proper way to
influence government. He felt that if people feel strongly, they should voice
their opinion, and if they err, the letter of the law should allow as much
leniency as possible.



Gwen Sanchirico, Idaho Patriots also testified in favor of the bill as she feels it
will remove the blurs between civil disobedience and acts of terrorism.



Senator Marley asked Ms. Sanchirico what her group was for and was told
that they are working to stall and reverse the erosion of the Bill of Rights.



Brandi Swindell, National Director of the Generation Life, a political and social
activist group told the committee that she was a strong support of President
Bush, and most recently demonstrated for the monument in the park. She
has been arrested 4 times for acts of civil disobedience and has noticed a
clear attitude change since 9-11 and a shift in how civil disobedience
protestors are treated.



Senator Davis commented that when the bill originally came up, he didn’t
feel that the word felony needed to be included, but he feels that a good point
has been brought up concerning Line 30, “other than that of the actor”, as
danger to a life. He is inclined to reject the bill and allow the prosecutor to
sort it out.



Rich Stover was asked about the prosecution aspect of the bill and told the
committee that he didn’t know who wrote the proposal, but he wouldn’t
charge a felony for civil disobedience.



Senator Burkett said that this act clearly reaches to acts of civil
disobedience, and if the prejudice that existed in this state was in Alabama,
Dr. Martin Luther King would have been arrested as a terrorist.

MOTION: Senator Bunderson made a motion to hold S1235. Second was by Senator
Richardson.
Discussion: Senator Bunderson was concerned about some of the points the sponsor
raised in reference to risk of rights. Senator Davis felt that a good hard look
to be taken about the worry of some of the threats that were brought up.
Senator Sweet also had concerns, and thinks it is wise to hold this bill to
discuss the concerns that the prosecutors have. It was mentioned that the
original legislation had room for improvement and hopefully a compromise bill
will come back.
SUBSTITUTE

MOTION:

Senator Marley made a substitute motion to send S1235 to the 14th order for
amendment. There was no second and the motion died for lack of a second
to the motion.
COMMITTEE

VOTE:

A vote was held for the original motion to hold S1235. The motion was
carried by a voice vote. S1235 will be held in committee.
S1332 Senator Burkett presented this bill that would establish the Idaho False
Claims Act. Fraud against the government can take multiple forms; among
the most significant are procurement fraud, false claims and
Medicare/Medicaid fraud. The purpose of this legislation is to allow private
citizens to initiate an action which may be joined by the state Attorney
General or a political subdivision seeking recovery of government monies that
have been wrongfully paid. The private citizen exposing fraud will share in
any money recovered. Senator Burkett and the co-sponsor, Senator
McWilliams
believe there will be a positive fiscal impact since this legislation
will encourage individuals who are aware of fraud against the state or political
subdivisions to bring the information forward and allow recovery by the state.



Barbara Beehner-Kane who was the drafter of S1332 told the committee that
the Dept. of Justice issued a report that indicated recoveries in suits and
investigations for fraud for fiscal year 2003 totaled $2.1 billion., which was an
increase from $1.1 billion in2002. A False Claim Law imposes civil liability on
a person or entity who submits a false of fraudulent claim to a government
entity. There are 3 types of fraud: First: Medical assistant, especially
Medicare-Medicaid, Second: Procurement fraud and Third: the catch-all False
claims. To recover state monies that were paid frauduently , most states
have enacted State versions patterned after the Federal False Claims Act.
The states that have enacted the False Claims Act have approached it



This act provides that those who knowingly submit or cause another purpose
or entity to submit false claims for payment of Government funds are liable for
three times the government damages plus civil penalties, ranging from $2000
to $10,000 per false claim.



Senator Darrington questioned in Section 2616 about those who don’t like
government or the programs, or the government involved in Medicaid
clogging up the system. Ms. Kane responded that if the government doesn’t
choose to intervene, then the private plaintiff will have to pick up the coast of
the lawsuit. Senator Darrington mentioned that legislators often hear about
those who goes through the checkout line paying with food stamps then goes
out and puts those items in a new Ford Pickup truck.



Senator Davis was concerned about the statute of limitations. He asked if
this bill would allow certain causes of action that have shorter statutes of
limitation and would be effectively extended. Ms. Kane answered that the
other states have uniformly have a 6-3-10 statute of limitations.



Mike Silva a private citizen spoke in favor of the bill. He is a former
commissioner of the Ada County Highway District. He told the committee that
all levels of government function on very slim dollars, and the people of Idaho
would appreciate legislation designed to make their tax dollars more effective
by eliminating fraud against the government. He said “This would make it
easier for state and local jurisdictions to recover money lost to fraud by
providing financial incentives to individual citizens, especially those employed
in state and local government work who would come forward with information
and evidence of wrong doing. Fertile areas for recoveries are Medicaid,
contractor procurement, and such malfeasants as witnessed in the City of
Boise. The concept at the heart of the bill is reasonable.”

Senator Darrington told the committee that the discussion of this bill would
be continued on Monday, March 1.
ADJOURN: Meeting was adjourned at 2:55 p.m.






DATE: March 1, 2004
TIME: 1:30 p.m.
PLACE: Room 437
MEMBERS
PRESENT:
Chairman Darrington, Vice Chairman Lodge, Senators Sorensen,
Richardson, Bunderson, Davis, Sweet, Burkett
MEMBER

EXCUSED:

Senator Marley
MINUTES: Senator Sweet made a motion to accept the minutes of February 27 as
written. Second was by Senator Lodge and the motion carried by a
voice vote.
S1332 Senator McKenzie told the committee that he found out about this bill
last Friday and was going to bring about similar legislation next year.
The modern False Claims act dates from the Civil War. Also known as
the “Lincoln Law,” it was enacted to combat the fraud perpetrated by
suppliers to the Union Army. War profiteers were shipping boxes of
sawdust instead of guns, and swindling the Union Army into purchasing
the same cavalry horses several times. President Abraham Lincoln
strongly advocated passage of the False Claims Act. It contained
provisions that allowed private citizens to sue, on the government’s
behalf, companies and individuals that were defrauding the government.
Congress passed the statute on March 2, 1863. Lincoln’s Law remained
unchanged until 1943 when Congress radically altered the provisions
and eliminated the incentive for a private citizen to bring a claim and
prohibited lawsuits based on evidence or information already in the
possession of the federal government. This provision effectively
prevented whistle blowers from filing a lawsuit if any government
employee had received a tip about the fraud or if any information about
the fraud was contained in any file even if the government was not
investigating the matter or trying to stop the fraud, and even if the whistle
blower was the source of the government’s knowledge. Following the
1943 amendments to the False Claim’s Act, it fell into almost complete
disuse.



In the mid 1980’s, Congress took another look at the law spurred by
reports of widespread fraud. There were outrageous billing practices,
such as the Navy paying $435 for an ordinary claw hammer, and $640
for a toilet seat. In 1985 the Dept. of Defense reported that 45 of the
largest defense contractors were under investigation for multiple fraud
offenses.



Congress decided to revise the False Claims Act, and Senator Charles
Grassley, a Republican from Iowa and Rep. Howard Berman a Democrat
from California sponsored amendments which received wide bipartisan
support. Senator McKenzie presented a sheet of floor debate from the
Senate. (See attached #1) President Reagan signed the bill into law on
October 27, 1986. Twenty states and the D.C. have enacted some sort
of this act. Eleven of these states have statutes generally patterned after
the 1986 amendments, including Nevada, which this bill is patterned
after.



Senator Sweet asked if there have been any applications of abuse with
this statute, or could there be. Senator McKenzie said that in his
research, and according to the NCSL researcher, he found that most of
the sources had used this to fight fraud and he didn’t see anything to
show this act was used improperly.



Ken McClure spoke in opposition to the bill, on behalf of the Idaho
Liability Reform Coalition. He has met with the sponsors and voiced
concerns. If it is appropriate for the Idaho False Claims Act to pay
bounties to ferret out fraud which they feel is a policy issue then this isn’t
the proper vehicle. A False Claims act ought to be tightly drafted,
balanced and fair, and those components are not seen in this legislation.
He isn’t representing people who are committing fraud against the
government, he is representing people who are concerned about being
wrongfully accused of committing fraud against the government. Be
mindful that there are people who are not fraudulent, who have done
nothing wrong that this law also will fight.



The nature of problems are that if a private party files a lawsuit, which a
government could have but chose not to, the nature of that lawsuit, will
almost always involve disputed questions of fact, and is not of the kind
that would have a summary judgment or dismissal. For someone who is
wrongfully accused, they will be ensured of paying costly defense fees or
costly settlements.



Steve Millard, representing the Idaho Hospital Association told the
committee that their concern is application. In the 1980’s, the office of the
attorney general started to scrutinize hospital billing errors and some
were turned into false claims. For example, the hospital bills Medicare
for about 2000 tests, and the government says that they were billed
erroneously. The fine is $10,000 for a false claim which would be for
2000 tests. In Idaho, small hospitals bill separately for procedures and
end up paying large amounts for settlement. They would like words in a
bill so clear that they actually get to the perpetrators of fraud and not to
those who inadvertently commit errors.



Steve Ahrens, IACI, spoke against the bill saying that they have no
problem with finding and punishing false claims, but the vague language
is a concern. This bill lessens current law with “preponderance of
evidence” instead of “clear and convincing”. He told the committee, that
“If there is not a way now, to handle the “false claims” issue, then
legislation may be called for, but we believe this is not a good way to
address any such issue.”



Mond Warren, Chief, Bureau of Audit and Investigations, spoke to the
committee about his experience with fraud investigations and using the
false claims act as a tool for fighting fraud and abuse. The bureau can
prosecute offenders, but this is not reasonable for all cases with the
limited resources and efforts required for a criminal prosecution. In
Idaho, he has participated in at least five different cases which were
resolved through civil litigation. All of these were settled and the
providers and the government came to an agreement on the amount of
restitution or penalties to be paid, based upon the circumstances in each
case. If an entity doing business with the government is submitting
false claims, they risk exposure from inside or from the public. In these
cases, the government has the option to intervene and prosecute or not
intervene. The federal false claim act has proven to be a valuable tool
for fighting and deterring fraud, and also due to the qui tam provisions,
exposing fraud that may have gone undetected. Fraud is about money,
and the federal false claims act helps resolve cases and recover the lost
money.



Senator Richardson asked how the False Claims Act was used and
which Act was used. Mr. Warren responded that they use the federal
claims law, known as Lincoln’s law, and it has been used on a federal
level to address issues of providers under this act. This bill before the
committee is a State False Claims act that closely mirrors the Federal
Act.



Senator Bunderson asked about those who cannot be touched, such as
government official who would allege a false claim, what accountability
would that official have. If the claim would not hold, could the private
individual be awarded court costs and attorney fees. Mr. Warren
responded that he has never taken one to court, they are all settled
before having filed suit, and needing to go into court. The US attorney’s
office had discussed the issue with the provider, looked at the
cooperation of the provider looked at the overpayment and the level of
intent to defraud and the claim and many were resolved with paying back
the overpayments.



Senator Burkett asked that since the Federal Statute is in place, would
a State statute be of benefit with regard to Medicaid Clients. Mr. Warren
responded that the advantage of the state statute for the state would be
when filing under the Federal False Claims Act, the settlement is
determined by attorneys for the office of inspector general in Washington
D.C., but not Idaho lawyers. The decision will be made on how it is to be
settled, or if it would be settled. The penalties would remain here in
Idaho.



Senator Sweet asked if he believed that there was a potential of a
disgruntled employee to create a lot of financial havoc on an employer.
Mr. Warren responded that there is always taht potential, and if an
employee files as a private citizen, if it as a Medicaid provider, and he
was going to intervene, that would be the first thing he would look for as
an incentive.



Barbara Kane had prepared a table that compares the Federal and State
False Claims Act on a number of issues (See attached #2) Senator
Davis’s question on the statute of limitations and Mr. McClure’s question
on the standard of truth is addressed in this information. It also
addresses attorney’s fees for the defendants not being balanced with the
plaintiff’s. There is no model act to these false claims statutes, but there
is a lot of similar legislation, and she took the 1999 Nevada law, made
the following revisions, added a political subdivision, changed the statute
of limitations, modified the provision to allow wrong doing by the plaintiffs
who may not get any recovery and she added a criminal penalty for an
employer who would attempt prohibit an employee from cooperating with
an investigation. If Idaho wants to pass a False Claims Act, this
document is valid based upon what other states have adopted.



Senator McWilliams told the committee that the bill is based on other
statutes, upon a Federal statute, and there is consistency among these
statutes, and is in this bill. How to address these issues is not based on
speculation, based upon a history. On the federal level, this has gone for
a hundred years, so the bill is not experimental and does contain the
ability to narrow its scope. It won’t generate all the lawsuits that are
being heard about. Fraud in billing is a lawsuit that would involve an
enormous amount of documentation. It would take a lot of time, effort
and money to sort through and the plaintiff would be looking at
considerable expenses. That by itself will be an element and will tend to
put a check into this law about the economics of a plaintiff bringing a
case. There was concern about the inadvertent error but with the word
“knowingly submit a false claim” it is fairly concise and there is probably
case law on this language.

MOTION: Senator Davis made a motion to hold S1332 in committee. Second was
by Senator Lodge and the motion carried by a voice vote.
S1379 Senator Davis presented S1379 and told the committee that the
purpose of this legislation is to grammatically change and clarify the
language of the statute. By moving the penalty portion to the
introductory section, it makes it more plain that it applies to all of the sub-parts instead of just sub-part (e).
MOTION: Senator Bunderson made a motion to send S1379 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
S1394 Heather Reilly presented S1394 on behalf of the Idaho Prosecuting
Attorneys Association to amend Idaho Code Section 19-3501 when
an action may be dismissed to change the way the six (6) month
speedy trial requirement begins running for charges brought under
an indictment. Currently, the six (6) months begins running on the
date the indictment is filed with the court. This creates a potential
“loophole” that may allow a person who has been indicted by a
grand jury, to avoid prosecution under the indictment by avoiding
arrest for six (6) months after the indictment is filed. This
amendment would close that loophole by requiring the defendant
to be arraigned before his speedy trial right begins to run.
MOTION: Senator Richardson made a motion to send S1394 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.
H571 Representative Robert Ring presented this bill is intended to close a
“loophole” in the law regarding Drug Court Participation Fees. The
proposed law is intended to ensure that all participants are accountable
for the costs and fees that were incurred during their participation in the
program. In a recent Idaho Court of Appeals case, State of Idaho v.
Jennifer McCool, June 3, 2003 , the Court ruled that the requirement to
pay drug court fees does not survive termination from the drug court
program and cannot be ordered as a fee or restitution at sentencing
absent a statutory provision allowing such. Drug Court fees are
necessary for the successful operation of the program and can lawfully
be ordered by a court for drug court participants under Idaho Code 31-3201E. It is unfair that unsuccessful participants can be relieved of the
burden to pay the fees simply by not complying with the drug court
conditions and being terminated from the program. This proposed
change to the law will allow the expense of the drug court treatment and
supervision to survive the termination from the program and allow the
sentencing judge to order the fees during sentencing or as a cost that is
a condition of probation. There is no anticipated impact on the General
Fund, but there will be a small increase in the Drug Court Fund.



Heather Reilly spoke in favor of the bill and said that the LELC supports
this as does Idaho Association of Cities and Counties as it doesn’t hurt to
make it clear that all parties may be required to pay fees, even though
the Idaho Supreme Court ruled. Senator Davis asked if this is really
needed, as District Court judges read the opinions of the Idaho Supreme
Court. Ms. Reilly responded that she hoped that they do read the
opinions, but that the participants don’t read Idaho Code and it is good to
have clarity and this should go forth.

MOTION: Senator Davis made a motion to send H571 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.
H642 Representative Richard Wills presented this bill that would provide that
the administrative judge of a judicial district shall serve a period of time
established by rule of the Idaho Supreme Court. The duties of an
administrative judge are prescribed by statute and rules of the Idaho
Supreme Court, and administrative judges work closely with the Idaho
Supreme Court in administering the Idaho court system. As currently
provided, the administrative judge is elected to a term of office the length
of which is determined by the other district judges in the district or, in an
isolated case when the district judges cannot agree on a candidate, by
the Supreme Court. The term of office and turnover of administrative
judges varies from judicial district to judicial district. The amendment
proposed by this legislation authorizes the Supreme Court to designate
the period of time an elected or appointed administrative judge serves,
thereby helping to assure a greater depth of experience and continuity of
leadership in carrying out Supreme Court policies and the duties of their
office.
MOTION: Senator Davis made a motion to send H642 to the floor with a do pass.
Second was by Senator Richardson and the motion carried by a voice
vote. Senator Richardson will carry this bill on the Senate floor.
H644 Patti Tobias, Idaho Supreme Court presented this bill that would add a
new section to Idaho code to authorize the Idaho Supreme Court to
establish a statewide uniform cost recovery fee schedule to assist
counties with the cost of providing court generated legal forms and
written materials. Also they would be provided with training covering the
application and use of these documents, and other services provided in
connection with court assistance offices and coordinated family services
as authorized in Idaho Code. Presently, Idaho law provides some
dedicated funding for the staffing of court assistance offices and
coordinated family services, but the delivery of these services also relies
on the contributions of counties in furnishing facilities and operational
expenses. This bill will assist counties in recovering some of their costs
in helping to facilitate the delivery of these vital services to the public.
The fees established by the Supreme Court will be reasonably related to
and will not exceed the actual costs involved in furnishing the forms or
providing the other services. This bill will not affect the state general
fund, but will positively impact the ability of counties to support family
court services and court assistance offices in discharging the
responsibilities imposed on them by law.
MOTION: Senator Lodge made a motion to send H644 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.

ADJOURNMENT: Meeting was adjourned at 3:00 p.m.






DATE: March 3, 2004
TIME: 1:30 p.m.
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 March 1 as
written. Second was by Senator Richardson and the motion carried by a
voice vote.
RS14217 To establish a study committee to undertake and complete a study of the
statutes governing charter schools. This bill will be referred to the
Education Committee.
RS14229 Provides for definitions of specialty journeymen and apprentices. This bill
will be referred to the Commerce Committee.
RS14234 Relating to the Idaho Transportation Board, the State Highway Account
and the Idaho Housing and Finance Assn. to utilize bonds or notes to
finance projects for transportation infrastructure. This bill will be referred
to the Transportation Committee.
MOTION: Senator Davis made a motion to send RS14217, RS14229 and RS14234
to print. Second was by Senator Richardson and the motion carried by
a voice vote.
S1407 Patti Tobias presented this bill for the Idaho Supreme Court, that willThis bill will increase the annual salary of justices of the supreme court,
judges of the court of appeals, district judges, and attorney and
nonattorney magistrate judges by two percent (2%) beginning July 1,
2004. Presently there are no nonattorney magistrate judges serving full-time in the state of Idaho. However, the annual salary of this category of
judge must keep pace with salary increments granted to other categories
of judges in order to adequately compensate retired nonattorney
magistrate judges who are called in to service on a temporary basis under
Section 1-2221, Idaho Code. The two percent (2%) salary increase for
justices and judges will cost $279,700.00, which is funded from the
general fund and was approved by JFAC last week.
MOTION: Senator Davis made a motion to send S1407 to the floor with a do pass.
Second was by Senator Sweet and the motion carried by a voice vote.
H668 Representative Debbie Field presented this bill that was drafted after a
call from a woman who was stalked for over 10 years and the statutes in
Idaho couldn’t help her. The law needed to be taken one step further and
this legislation will do that by breaking stalking out into first-degree and
second-degree stalking. First-degree stalking is a felony and is committed
when an individual commits second-degree stalking and at least one of
the enumerated aggravators. The penalty for second-degree stalking is
the same as that already provided in Idaho Code.



Representative Field told the committee that she had put several of their
phone numbers into a Google Search and found 2 pages of information
on them including a map to their homes. She said that it is very easy to
find a person and the law needs to be tougher for those that do.



Kathy Peterson, the victim of stalking that called Chairman Field, told the
committee that she was engaged to a man, who borrowed $40,000 from
her and when she broke up with him, would not quit harassing her. She
made police reports, but was told that the City didn’t have the money or
the manpower to do forensics to determine if it was her former fiancé.
She paid for her own forensics and it proved to be Jeff Richland, as she
thought. The judge suspended any sentence, there was no fine or
penalty, and she was made to feel like she was pushing a mute issue.
Jeff married many times, and had threatened ex-girlfriends as recently as
6 months ago, some of whom are trying to help Ms. Peterson.



Senator Darrington told Ms. Peterson that the committee was concerned
that the stalking law put on the books about ten years ago is not
adequate.



Heather Reilly, Idaho Prosecuting Association supports the bill. She said
that they had looked at the bill and given their input. At a recent stalking
conference there was a concern about the technology for use with Global
Satellite Positioning systems (GPS), so now the language can include “by
electronic means”.



Ms. Reilly presented a sheet of stalking facts. (See attached #1) While
legal definitions of stalking vary from one jurisdiction to another, stalking
generally refers to a course of conduct that involves a broad range of
behavior directed at the victim. The conduct can be as varied as the
stalker’s imagination and ability to take actions that harass, frighten
threaten and/or force himself or herself into the life and consciousness of
the victim. The report states that 1,006,970 women and 370,990 men are
stalked annually in the United States, and 77% of female as well as 64%
of male victims know their stalker. Stalking is a crime under the laws of all
50 states, and the District of Columbia and stalking is considered as a
felony upon the first offense in 14 states. Thirty-four states classify
stalking as a felony upon the second offense and/ or when the crime
involves aggravating factors. Aggravating factors may include:
possession of a deadly weapon; violation of a court order or condition of
probation/parole; victim under 16; and same victim as prior occasions.



Senator Burkett asked why there was such an expansive definition of
family, and especially including roommates. Ms. Reilly said that a lot of
victims are in college and it is common for stalkers to go to a residence
and make roommates the subjects of the harassment. The intent of this
bill is to include people that are in contact with the target to protect them.
She told the committee that she felt this bill was an improvement in the
law.

MOTION: Senator Burkett made a motion to send H668 to the floor with a do pass.
Second was by Senator Lodge and the motion carried by a voice vote.

Senator Burkett and Senator Lodge will co-sponsor this bill on the
Senate floor.

H519 Major Ralph Powell, Idaho State Police presented this bill whose purpose

is to seek restitution for the analysis of controlled substances for
conviction on misdemeanor drug offenses as well as felony drug offenses.
The laboratory incurs the same analysis expense regardless of whether
the evidence results in a felony or misdemeanor conviction.



Idaho Code allows restitution to be sought from offenders, upon
sentencing, for the analysis of felony controlled substances. Restitution
amounts paid to the Idaho State Police are deposited into the drug
enforcement donation fund which are used to pay a portion of the cost to
analyze drug evidence submitted by law enforcement agencies; purchase,
repair and maintain instruments, equipment and supplies; and pay for
training and general operations/maintenance of the laboratory.



It is estimated that this proposal may generate up to $50,000 annually for
the Idaho State Police. These funds will be added to the Drug
Enforcement Donation Account as outlined in the Funds Consolidation
Act, Idaho Code 57-816. The Joint Finance Appropriation Committee has
given authority for this. Major Powell said that for $100 analyzed sample,
they get $16.50.

MOTION: Senator Lodge made a motion to send H519 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.
H520 Colonel Dan Charboneau, Idaho State Police presented this bill relating to
the Idaho DNA database Act of 1996. He introduced the director of the
DNA , Cindy Hill.

This proposed amendment to the statute provides for the addition of two
new classes of offenders subject to sample collection: felony burglary and
felony domestic violence; and provides that persons may be ordered by
the court to pay restitution to help offset costs incurred by law
enforcement agencies for the expense of DNA analysis. Burglars are
known to have a high correlation with rape, and DNA database research
has proven this.

A review of the state of Virginia database showed that nearly half of all
the hits on unsolved rapes come from offenders with prior burglary
convictions. Domestic assaults likewise are violent crimes often leading to
rape or homicide. Inclusion of these crime categories in the DNA
database will increase law enforcement’s ability to identify and more
quickly bring to justice the perpetrators of violent crimes. Idaho is now on
line with STR (Short Tandem Repeat) DNA analysis and CODIS
(Combined DNA Index System), and can provide DNA analysis on
samples submitted for a variety of crimes. DNA analysis is a costly
procedure, with processing expenses running from $750 to $1,200 per
sample. DNA case analysis typically requires a minimum of three samples
with some homicide/rape cases submitting over one hundred samples.
As sample numbers and technology costs increase, it is prudent to
consider recouping a portion of the costs from offenders through
restitution. The amount is calculated to be affordable to the offender and
will roughly cover the cost for the DNA analysis, or allow local law
enforcement to recoup some cost of specialized DNA analysis not
available from the Bureau of Forensic Services. Restitution funds received
by the laboratory will be used to purchase, repair and maintain
instruments, equipment and supplies, pay for training and general
operations/maintenance of the laboratory and pay for DNA outsourcing on
analysis that ISP’s laboratory does not perform. It used to be a blood
sample was needed for DNA testing, but now it can be done by a swab of
the mouth.

Estimated costs for the increase in samples based on felony burglary and
felony domestic violence convictions to ISP Forensic Services budget
could vary between $10,400 and $46,938 depending on award of federal
grants for offender backlog reduction. Income from restitution for DNA
analysis will depend on frequency of restitution ordered and the ability of
the offender to pay.



Marty Durand, ACLU, spoke in opposition to H520 and told the committee
that ” DNA tells more than a fingerprint. It identifies who your family is,
what diseases you might get. This is personal info, and the government’s
power to collect samples should not be taken lightly.

Under Idaho law anyone who enters a building or vehicle intending to
commit theft or a felony, is guilty of burglary. If someone shoplifts a can
of soda from a convenience store or takes a CD from car commits a
burglary. These things do get prosecuted as burglaries ­ shoplifters;
thefts from vehicles; stealing candy out of a hotel candy machine. Under
Idaho law, these are burglaries.

Burglary is punishable by one to ten years in state prison, which makes it
a felony. There is no such thing a misdemeanor burglary. Page 2, line 19
states that only offenders guilty of burglary constituting a felony are
required to submit DNA samples. That would be everyone convicted of
burglary ­ whether they enter a building to steal a can of soda or to
commit a murder.

This bill assumes that someone who steals from a store is going to go on
to commit violent crimes. The bill also contains a new section allowing the
state to seek restitution. The section goes beyond requiring the offender
to pay the cost of his own DNA testing, and goes beyond mere recovery
for the costs of putting a sample into the DNA database. It seeks to
restitution to the Sate of Idaho for the costs associated with a criminal
investigation.



Dennis Benjamin spoke about H520 and presented an amendment
which would not include burglary .His concern was that unlike other
states, this would include shoplifting, so that an 18 year old who steals a
candy bar or a pop from a convenience store would have to provide a
DNA sample. “This seems like an overreaction to what is almost
universally classified as a misdemeanor. While I do not doubt that
residential burglars are likely to commit further offenses, there is no
evidence, to my knowledge, which demonstrates the same likelihood for
shoplifters.” He asked the committee to consider excluding shoplifting
from the bill and presented his amendment, which could easily
accomplished this. (See attached #1)



Heather Reilly spoke about H520 and said that the suggestion that an
amendment to the bill, stating “except where the intent was to commit
petit theft” would effectively nullify the proposal to include burglary.
Prosecutors do not have to prove a defendant intended to commit either
petit theft (theft of property worth $1000 or under) or grand theft (theft of
property of a value in excess of $1000). Therefore, during the
prosecution, there is generally no specific finding in this regard by either
the court or the jury. It would be practically impossible for law
enforcement to determine whether or not a burglary conviction involved
the intent to steal under $1000 or not. This is because a court and/or jury
never make such a finding during a burglary trial.



Therefore law enforcement would not be able to determine which burglary
conviction came within the DNA sample requirement and which burglary
conviction was excluded. Unless, perhaps thorough reviews of the police
reports and potentially the trial transcript was undertaken. Even in that
situation, law enforcement may not be able to make such a determination.
The court will still have to provide documentation of the cost of the
analysis in the case before the court. Defense will still have the
opportunity to oppose the restitution order. She concluded by saying that
this bill is good public policy and told the committee that “It would be
better to enact it and if there were problems with law enforcement and the
Idaho State Police, to rule out legitimate cases. The prosecutor will still
have to ask the court to order restitution.”



Detective Greg Morgan, Boise police department told the committee that
in his research, he found a number of violent offenders, including rapists
that had been arrested for burglary. The DNA bill wasn’t implemented
until 1996, and is a genetic fingerprint. He felt that this is a crime
prevention bill.

MOTION: Senator Burkett made a motion to send H520 to the floor in the 14th
order for amendment. Second was by Senator Marley and the motion
carried by a voice vote. The chairman is recorded as voting no.






DATE: March 5, 2004
TIME: 1:30 p.m.
PLACE: Room 437
MEMBERS
PRESENT:
Chairman Darrington, Vice Chairman Lodge, Senators Bunderson, Davis,
Sweet, Marley, Burkett
MEMBERS

EXCUSED:

Senators Sorensen and Richardson
MINUTES: Senator Davis made a motion to accept the minutes of March 3. Second
was by Senator Sweet and the motion carried by a voice vote.
RS14250 Senator Davis introduced this legislation that is a trailer bill to Senate Bills
1227 and 1228. The purpose of this is to provide a consistent set of
definitions between Article 1 and Article 7 of the Uniform Law Code that was
revised by these bills. This bill needs to be printed and go to the floor with a
do pass.
MOTION: Senator Bunderson made a motion to send RS14250 to print and to the
floor with a do pass. Second was by Senator Lodge and the motion carried
by a voice vote.
S1420 Brent Reinke presented this bill to clarify limitations on personal liability of
individuals who volunteer their services to the state of Idaho pursuant to an
executive orders. Idaho Code provides certain protections against liability to
volunteers involved in nonprofit and charitable organizations. However,
boards, councils and commissions such as the regional or local children’s
mental health councils, which have been formed also by an executive order
of the governor, and are not specifically addressed in current law. Idahoans
volunteering to serve with such groups provide an invaluable service to the
citizens of this state, and need the same clear liability protection.
MOTION: Senator Sweet made a motion to send S1420 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.

H564 Tim Hurst of the Secretary of State’s office presented this bill that clarifies the restoration of voting rights of persons convicted of a felony in
another state or jurisdiction. Persons convicted of felonies in other states or
jurisdictions shall be allowed to register and vote in Idaho upon final
discharge which means satisfactory completion of imprisonment, probation
and parole as the case may be. These individuals shall not have the right
restored to ship, transport, possess or receive a firearm in the same manner
as an Idaho felon as provided in Code.

Senator Darrington commented that this firearm provision applies to all
felons, and should not apply to those who have committed crimes such as
bad checks, and those types of individuals.

MOTION: Senator Davis made a motion to send H564 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.
H587a Mike Kane presented this bill designed to amend Idaho Code to shift the
duty of filing certificates of surrender from the county sheriff to the
surrendering bondsman. In the amendment, it also clarifies that a bondsman
may only surrender a prisoner in the county where the prisoner is being
prosecuted.
MOTION: Senator Lodge made a motion to send H587a 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 bill on the Senate floor.
H727 Representative Ann Rydalch presented this legislation that closes a
loophole in the law regarding sex offenders in a day care. This bill adds to
and amends existing law to provide prohibited employment locations and
prohibited behavior of adult sex offenders and owners and operators of day
care facilities. This also extends to juvenile sex offenders and operators of
day care facilities; to provide penalties; to waive Juvenile Corrections Act
jurisdiction over certain juvenile sex offenders; to provide notification to sex
offenders and juvenile sex offenders of prohibited conduct; and to provide for
judicial relief for adult or juvenile sex offenders of certain employment
prohibitions.

Senator Darrington commented that the problems arising with day care
facilities are usually the family members that hang around there, and this bill
should clear that up.

Mike Kane spoke in favor of this bill and said that this imposes new duties
for the sheriff’s but they are willing to take on those duties.

Bill von Tagen spoke in behalf of Attorney General Lawrence Wasden saying
that their office supports this legislation.

MOTION: Senator Sweet made a motion to send H727 to the floor with a do pass.
Second was by Senator Marley and the motion carried by a voice vote.
Adjournment: Meeting was adjourned at 2:00 p.m.






DATE: March 8, 2004
TIME: 1:30 p.m.
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 approve the minutes of March 5.
Second was by Senator Lodge and the motion carried by voice vote..
S1416 Dave Nelson, Idaho Department of Correction presented this bill that extends the same liability protection and authority of arrest to probation
and parole officers supervising drug court participants, as is provided to them
while supervising felony probationers and parolees. This bill would halt any
attempt on the part of a drug court participant to challenge the legal authority
of the officer from carrying out his or her responsibilities to supervise, and if
necessary arrest a drug court participant if he violates the conditions of the
drug court program. The probation & parole officer is a member of the drug
court team led by the judge, and generally includes the treatment provider, the
drug court coordinator, the prosecutor, and the defense attorney.



Senator Bunderson asked how the judiciary felt about this legislation and
was told that Patti Tobias from the Supreme Court was in favor of it.

MOTION: Senator Sorensen made a motion to send S1416 to the floor with a do pass.
Second was by Senator Lodge and the motion carried by a voice vote.
H609 Monte MacConnell, Director of Idaho Victim’s Rights presented this legislation
that will address the concerns that the Idaho Supreme Court raised in the
case of State v. Lovelace, decided on July 23, 2003 that “Idaho has not
provided by statute or constitution that victim impact evidence is a matter
relevant to determination of the sentence in the sentencing phase of a capital
case.” Specifically, it will provide that victim impact evidence is both relevant
and admissible at the sentencing phase of a capital case.



He is concerned because of the murder of Kathleen Terry and her unborn
baby girl by the husband/father in 2003. Under the law today, Kathleen’s
mother and siblings might not be permitted to make a statement at sentencing
if the prosecutor were to pursue the death penalty.



Information concerning the victim and the impact that the death of the victim
has had on the victim’s family is relevant and admissible. Such information
shall be designed to demonstrate the victim’s uniqueness as an individual
human being and the resultant loss to the community by the victim’s death.
Characterizations and opinions about the crime, the defendant and the
appropriate sentence shall not be permitted as part of any victim impact
information. This participation gives the victims the right to heal.



Senator Darrington asked Mr. MacConnell if with the emergency clause put
on this bill, will those cases in progress be impacted. Mr. MacConnell said
that as long as the Governor signs it before the sentencing, the victims will
have a right to testify. Senator Sorensen asked about the amendments and
was told that in the hearing in the House, attorneys had a problem with the
“evidence” being presented, so that term was eliminated. Senator
Richardson
asked about the difference between “evidence” and term
“characterization” and was told that evidence comes into the fact-finding area
before a court appearance. The statement by the victim is not evidence, but
information that lets the fact-finding body know of the impact of the crime on
their family. States that have passed this have found that this gives the victim
closure. Character is their feelings and their emotional state because of the
crime. The fact-finding portion comes after guilty finding before sentencing,
then the victim impact statement comes forth and is given to the jury. Senator
Davis
commented on what the loss of a family member means to a family.

MOTION: Senator Lodge made a motion to send H609 to the floor with a do pass.
Second was by Senator Sorensen and the motion carried by a voice vote.
Senator Richardson will carry this bill on the Senate floor.
H641 Representative Harwood presented this bill that would prevent a meth lab
from being built within 1000 feet of a Head Start school, preschool, daycare
center, family day care home or group day care facilities as defined in Section
39-1102, Idaho Code. This defines the sentencing in cases involving certain
drug crimes that would occur near these types of facilities. In 2002 and
2003, 2 cases were filed each year, and none were filed in 2004.



Senator Darrington asked what a family day care home was as he was
familiar with the other facility terms, but Rep. Harwood was unable to answer
that question.



Senator Burkett asked what was involved in this and was told that it related to
all drug trafficking, and the effort to prevent drugs from being brought into
school activities if they were being sold near these facilities. Senator Burkett
asked about the nexus in this, about the fumes from the labs near the facilities.
Senator Sweet commented that he had been through this in a neighborhood
and “dopers are frequenting the place, driving through and bothering kids”.
He said the “nexus is the type of people and their conditions,” and that most of
them were criminals who frequent these places.



Marty Durand, representing the ACLU, American Civil Liberties Union of
Idaho, spoke against the bill, saying that the bill may be well-intended but
potentially poses serious due process concerns. Due process requires that a
person be put on notice of what conduct is proscribed. Unlike most schools
that are designated as drug free areas, many day care facilities are not
obviously discernable as such, and they are not required to post signs for
identification . She answered Senator Darrington’s question of a “family day
care facility” as defined in Code as “A home, place, or facility providing day
care for six or fewer children.” Since they would appear as a single family
dwelling, how could a defendant be put on notice of its existence, and she
wonders how this legislation would deter a defendant from manufacturing, or
delivering drugs close to a day care, when they wouldn’t even know it existed.

MOTION: Senator Sweet made a motion to send H641 to the floor with a do pass.
Second was by Senator Richardson.
Discussion: Senator Burkett felt that this takes a good concept but expands it to far and
puts it at risk. He didn’t feel it would keep anyone involved in drugs from kids,
and the best thing would be to hold it in committee. Senator Davis felt the
addition of the Head Start school was fine, but he was anxious about the
cause for concern for the other facilities and the breadth of the bill.
VOTE: The motion failed to get an aye vote and will be held in committee.
H686 Representative Shepherd presented this bill that would amend code to
increase the penalty for owners or occupants failing to comply with orders for
removal of a hazardous condition. This condition could be building that was
dilapidated, liable to fire or is situated such as to endanger life, or other
structures. The State Fire Marshall, assistants and deputies need to be able
to inspect these at reasonable hours, and this exempts the interior of private
dwellings, or building on farms of more than five acres. Code provides that if
such is found to be in need of removal or remedy, an order must be complied
with, however, the owner may appeal to the fire Marshall within 20 days of
being served, and the fire Marshall has 10 days to review the order. Unless
the order is revoked or modified, the code will remain in force. If an owner or
occupant feel that the decision is faulty, they may within 30 days appeal to the
district court having jurisdiction over the property. A penalty is then provided
and for many years has been set at $10.00 per day for each day’s neglect and
that is the reason for this bill. The purpose is to provide for reimbursement of
the cost of enforcement by the offending party and the proposed amount is to
remain at $10.00 a day for the first 7 days, then $50.00 for days 8 through 30
and $400.00 a day thereafter. It is felt that with the appeal time, and the
gradual penalty increase, this should be a reasonable way to proceed and
should bring more compliance. Fire Districts do not have the means to
enforce serious violations of these safety issues and there needs to be a
change in the penalty phase.



Bruce Alcott spoke in favor of this legislation as did Chuck Lempess who said
it was a necessary bill for the Idaho Fire Districts. Karl Marlott spoke in
support of the bill as a safety issue.

MOTION: Senator Lodge made a motion to send H686 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 bill on the Senate floor.
ADJOURN: Meeting was adjourned at 2:30 p.m.






DATE: March 10, 2004
TIME: 1:30 p.m.
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 8
as written. Second was by Senator Marley and the motion carried by a
voice vote.
RS14256 This legislation is being printed at the request of Senator Andreason,
for the Commerce and Human Resources committee and relates to
public records to revise exemption provisions applicable to worker’s
compensation records fo the Idaho Industrial Commission.
MOTION: Senator Lodge made a motion to send RS14256 to print. Second was
by Senator Marley and the motion carried by a voice vote.
H531 Representative Trail presented this legislation that seeks to revise the
Juvenile Corrections Act to provide that juveniles found to have
committed only misdemeanor offenses can have their records expunged
after one year from release from probation or at age 18, but maintains
the five-year waiting period for those who commit felonies. The
legislation also permits expungement of police records in cases where
the prosecutor elects to use the diversion process for rehabilitation or the
court dismisses the case after the juvenile successfully completes an
informal adjustment. This will enhance the ability for juveniles who have
committed offenses to enter military service and other occupations
earlier, rather than having to wait until they are 23 years old, which is the
case for many of them under current law.



This legislation will make Idaho law more consistent with that of the other
western states and will act as a further incentive for juveniles committing
offenses to chart a different and better course for their lives rather than
re-offending. State and local agencies may see a positive impact in
reduced record storage requirements. Minimal additional time
requirements for local prosecutors, law enforcement agencies and court
personnel in processing expungement requests and orders.



Doug Whitney, Deputy Prosecuting Attorney for Latah County started this
legislation and told the committee he had spent 18 years and the last 8
with juvenile offenders and felt this legislation was needed to give young
people who accept responsibility for their actions, comply with probation
and complete probation to be able to go to college and get good jobs.
This is not an automatic process, but must be applied for, and the
prosecutors are informed, so the judge is able to make a good decision.

The Governor’s Task Force on Children at Risk has reviewed the
legislation and “has voted to affirmatively recommend that it be passed
by the Idaho State Legislature”.



Senator Darrington asked if the employment laws will allow an
application asking if there has been expungement, and was told that just
the military asks about expungement of records. Senator Darrington
then asked if the agency destroyed the records that are expunged. Mr.
Whitney
said that the records are sealed and filed in the county
prosecutors office and only a court order can open them when they have
been expunged.



Senator Sorensen asked why fingerprints are sealed, when it could be
advantageous to have them to identify for a later crime. Mr. Whitney said
when youth are fingerprinted, there is a card that identifies the crime for
which the fingerprints are required. There can be multiple cards for one
person. Senator Sorensen asked if fingerprints could be put into a
registry to be made more accessible, and was told they can be made
available.



Senator Bunderson asked about the Federal Law that military can ask
about expungement of records. Mr. Whitney told the committee he spent
20 years granting waivers for a recruiting district. An applicant has to
tell if they have had any records expunged. If they have, they can get in
much earlier than they can if those records were not expunged and they
are trying to get a waiver.



Senator Richardson asked if it is a felony, are the penalties removed
upon expungement. Mr. Whitney reminded the committee that this is
applying to adjudicating juveniles, and does not apply to them as it would
to a convicted adult.



Senator Darrington commented that this wouldn’t apply to a juvenile
that was waived into adult court, and Mr. Whitney responded that the 5
year waiting penalty still applies.



Senator Lodge commented that the statement of purpose says it would
reduce record storage, but it seems to be extra record storage. Mr.
Whitney
said it will be a reduction to the prosecutor’s office, but about the
same for others involved.



He presented a letter from the Idaho Supreme Court with comments from
several judges on expungement of juvenile records for misdemeanor
offenses, and many liked the idea, thought the one year period was
good, and felt it would make it easier for young people to join the military.



Bill Lasley, liaison for District 6 and 7 Juvenile Corrections spoke in
favor of the bill on behalf of Director, Brent Reinke who worked with
those who were writing the bill.



Heather Reilly, IDPA spoke in support of H531 and pointed out on page
two, line 8, the crimes that don’t qualify for expungement. Also, in
Section 5, there are other exclusions. Just because a person applies for
an expungement, doesn’t make it a done deal. Victims are notified and
can come in and oppose the expungement of the records.



Marty Durand, ACLU, said it was a rare day when the ACLU and the
prosecutors and the courts agree. They support this bill so that when a
youth who commits a folly can get on with their life.

MOTION: Senator Bunderson made the motion to send H531 to the floor with a
do pass. Second was by Senator Lodge. Motion carried by a voice
vote. Senator Darrington will carry this bill on the Senate floor.
H589 Representative Anne Pasley-Stuart presented this bill brought by the
Idaho Bail Agents Association to fix an oversight in the code that was
passed in 2003. Currently, anyone could be designated by a bail agent
(included a convicted felon), to make arrests of criminal defendants. The
language being proposed by the Association corrects this oversight and
assures that anyone who is designated by a bail agent must be at least
21 years of age and have not been convicted of a felony. This legislation
protects the public by ensuring convicted felons cannot be designated by
a bail agent to make arrests. The amendments in this legislation were
placed there at the request of the Idaho Sheriff’s Association and the
Idaho Peace Officer’s Association.



Senator Darrington commented that bail agents are a divided group
and that not all are members of the Idaho Bail Association. Some are
observed as bounty hunters and ex-cons make good bounty hunters.
Rep. Pasley-Stuart responded that their experience is that bail agents
are trying to stop the practice of using ex-cons as there actions have
been rough. There was an incident in Boise where the home was
broken into and the resident was hurt.

MOTION: Senator Sorensen made a motion to send H589 to the floor with a do
pass. Second was by Senator Marley. Motion carried by a voice vote
with the chairman voting no. Senator Burkett will carry this bill on the
Senate floor.
H667 Representative Wendy Jacquet presented this bill that would add a new
section to Idaho Code, to provide that any person who willfully threatens
to commit an act of violence on school grounds by use of a firearm,
explosive, or deadly or dangerous weapon is guilty of a misdemeanor.

This bill was drafted because of threats made on the lives of students at
Wood River High School. There were no charges filed and therefore, the
parents were not able to get assistance from the Department of Juvenile
Correction for their son.

Senator Darrington questioned how idle talk would be separated from
real threats, as that occurs in every school every day. Rep. Jacquet said
that by inserting “willfully”, it showed the intent. She told the committee,
“the bill is crafted as it should be and there wasn’t anything in the present
law that the prosecutors could use and this bill will help.” She also said it
was drawn so narrowly that it won’t apply to idle threats.



Senator Sorensen felt that this is opening a can of worms, that it would
be hard ti identify when someone overhears an idle comment and have it
misinterpreted as a threat. Rep. Jacquet responded that a threat with a
bomb is already in Idaho Code, and violence on school grounds should
be isolated as a more careful community as police are unable to do
anything about the threats. This is to raise the bar to have the penalty be
a misdemeanor.



Senator Sweet asked about the limitations and why it was narrowed and
was told that it covered boisterous threats, and would narrow to firearms
and explosives. Senator Sweet then asked why not make them guilty of
a threat even if they have no weapon. Rep. Jacquet replied that would
be a threatened assault, which is already in Code. Senator Sweet
asked how those who just said something would be sorted out from
those who said it in anger. He was told that most schools have resource
officers and the sidebars (of “willfully”) are in place, as well as
measurements that make it tighter than willy nilly or playground chatter.



Senator Bunderson asked about the definition of firearm in title 18, as a
dangerous weapon and what the need for the other words of firearm or
explosive, if only defining a weapon. He asked if the intent was to define
the weapon. Rep. Jacquet replied that she is not an attorney, but that
the definition is in the code. Senator Bunderson specifically questioned
the word “dangerous weapon” as it could refer to a persons hands as
well as the weapon in the hand.



Marty Durand, ACLU spoke in opposition to this bill and presented an
amendment that would clarify when there were empty threats or a real
threat crime. They cannot support the bill as it is and feel it should be
drafted tighter. The proposed amendment would add language to the
section, THREATENING VIOLENCE ON SCHOOL GROUNDS: “Any
person who willfully threatens to commit an act of violence on school
grounds by use of a firearm, explosive, or deadly or dangerous weapon
as defined in Section 18-3302D, Idaho Code, which causes a well-founded fear in a school employee ro law enforcement authority
that such threat will be carried out,
is guilty of a misdemeanor.



Senator Bunderson asked if anthrax or a gas would qualify. Ms.
Durand
read the definition of dangerous weapon from Section 18-3302:

“Except in the person’s place of abode or fixed place of business, a
person shall not carry a concealed weapon without a license to carry a
concealed weapon. For the purposes of this section, a concealed
weapon means any dirk, dirk knife, bowie knife, dagger, pistol, revolver,
or any other deadly or dangerous weapon. The provisions of this section
shall not apply to any lawfully possessed shotgun or rifle”, and said that
was not defined in this section of Code.

MOTION: Senator Davis made a motion to hold H667 in committee. Second was
by Senator Sweet.
DISCUSSION: The definition of a dangerous weapon as defined in Section 18-3302D is
not the intention of the sponsor.
SUBSTITUTE
MOTION:
Senator Marley made a motion to send H667 to the 14th order for
amendment. Second was by Senator Burkett.
Committee Vote: The motion to send H667 to the 14th order failed by a voice with the
chairman voting aye. The motion to hold the bill in committee
carried by a voice vote.
ADJOURNMENT: Meeting was adjourned at 2:50 p.m.






DATE: March 15, 2004
TIME: 1:30 p.m.
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 10
as written. Second was by Senator Richardson and the motion carried
by a voice vote.
RS14271 Senator Bunderson asked the committee to print this legislation relating
to taxation and tax revenues to revise the tax imposed upon beer to
define “wholesale sales price” to impose a surcharge, and to provide for
credits and refunds, and to provide that any wholesaler or brewer who
sells to a retailer beer upon which taxes have not been paid shall be guilty
of a misdemeanor.
MOTION: Senator Richardson made a motion to send RS14271 to print. Second
was by Senator Bunderson. Senator Lodge said she would vote no as
there are small wine industries starting in Canyon County and taxes on
those businesses would create a hardship. Senator Sweet also stated he
would vote no as he feels the economy can’t withstand the tax burden and
its impact on retailers. Senator Bunderson commented that the
legislation allows the tax issue to be discussed. The motion carried by a
voice vote.
H751 Representative Jaquet presented this bill that will amend existing law by
creating enhanced misdemeanor penalties for an offender who unlawfully
provides alcoholic beverages to a person under 21 years of age. Fines
are increased for second or subsequent offenses. The bill also removes
the current felony penalty allowed on a second offense. The fine for a
second offense is raised from $1,000 to $2,000. Monies gathered from the
fines imposed upon a conviction under this section will be deposited into
the alcoholism treatment fund. In conclusion, Representative Jaquet said
she looked at legislation in other states and wanted to target alcohol
treatment. She found that 7 out of 10 businesses sold to minors with no
Idaho being asked for and that teenage drinking is a real problem which
needs to be addressed. She gave the committee a handout showing the
Statistics on Minors and Drinking and a state by state comparison on
fines for teens using fake ids, compared to fines for adults who buy
alcohol for minors (See attached #1)
Pam Eaton, President of the Idaho Retailers Association told the
committee they were concerned about language in the original bill that
the first offense could be a prison sentence. The amendments were
negotiated and they hope a lot of imprisonment doesn’t take place.



Senator Burkett asked Mrs. Eaton about the purpose of the amendment.
She told him that under the original bill the fine was $500 to $1000. While
the Retailers do not condone underage drinking, they are concerned
about how high the misdemeanor fines are for retail establishments.
Even though employees know to check drivers licenses for age
identification, there is always room for human error.

MOTION: Senator Lodge made a motion to send H751a to the floor with a do pass.
Second was by Senator Sorensen . Senator Burkett commented that
he doesn’t think it goes far enough with and the amendment is an
insignificant change, and not severe enough to stop older people from
buying for underage individuals. The motion carried by a voice vote.
Senator Burkett will carry this bill on the Senate floor.
H771: Representative Jaquet presented this legislation that provides that a court
shall vacate a child support order if the court finds, by clear and
convincing evidence, that the moving party is not the biological father of
the child who is the subject of the support order, and that the obligee
knowingly and intentionally misrepresented the paternity of the child to the
obligor. If the order is vacated, the obligor may bring an action in court
against the obligee or the true biological father to obtain restitution for
child support previously paid pursuant to the order.



She said that in 20% of births the father finds out that he isn’t the
biological father. She feels that all newborns should have a DNA test, but
that is too cost prohibitive. This gives a father two years instead of 60
days to find out if he is the biological father. This was run by the courts
and the judges had no problem with it, saying that the best interest of the
child would be taken into consideration.



Senator Darrington commented that the obligee would be the mother
who knowingly and intentionally led the man to believe he was the
biological father. Senator Sorensen was concerned about the best
interest of the child if they live with a father and then find out he is not the
biological father, and are left hanging. Rep. Jacquet said that was the
issue, the best interest of the child, and they would hope for 2 years and 6
months for the court to take this into consideration.

MOTION: Senator Sweet made a motion to send H771a to the floor with a do pass.
Second was by Senator Bunderson and the motion carried by a voice
vote.
H590a Ed Lodge representing the Idaho Lodging and Restaurant Association
presented this bill to the committee referring to it as unfortunate but
necessary. This legislation, known as the Idaho Consumption Act protects
all those in the chain of commerce from laws and it defines “food” in
accordance with the Federal Food, Drug and Cosmetic Act.



This bill provides protection from civil liability for any claim arising out of
weight gain, obesity, health conditions associated with weight gain or
obesity, or generally known obesity related conditions caused by long-term consumption of food. The legislation is essentially about people
taking responsibility for their own actions, and sets out specific
requirements that a plaintiff must meet before a lawsuit can move forward.
Mr. Lodge said this bill will help prevent frivolous law suits such as those
filed against McDonald saying the french fries were toxic.



Senator Darrington called the attention of the committee to several
handouts including an attorney general’s opinion. That opinion said that
although the pleading provisions that were in the amendments of H590
may present legal challenges, it does not appear that these challenges
would prove fatal to the bill. Idaho Trial Lawyers Association addressed
the bill saying “The knowing and willful violation provisions establish a
liability standard applicable to criminal law. ” They don’t see a need for
this legislation as they are aware of only one case that has been filed.
That case was in New York and was thrown out of court, and there
haven’t been any cases in Idaho relative to food consumption. The Food
Producers of Idaho asked the committee for support in passing this bill, as
it is an attempt to limit the liability of food manufacturer, distributors,
sellers and retailers in situations where obesity-related health problems
occur as a result of the long-term consumption of a food or beverage.
(See attached handouts)



Mike Fitzgerald, restaurant owner spoke in favor of the bill. When he
attended the National Restaurant Assn. Public Affairs conference in
Washington D.C. in September, leadership asked if Idaho would be one of
20 states to introduce model legislation to prohibit frivolous lawsuits that
attempt to hold the food industry liable for an individual’s obesity and
weight gain. A New York attorney filed two lawsuits against McDonald’s
claiming they were responsible for his clients obesity related health
problems. Even those these cases were dismissed, this could be the
beginning. The same attorney who spearheaded the tobacco lawsuits
served as a consultant in these two cases.



He told the committee that more people are living sedentary lives. The
average child in the US spends between 15 and 18,000 hours watching
television by age 17. This represents 38% more time sitting than the
12,000 hours they spend in school. Recent research by the Idaho
Lodging and Restaurant Association shows that 95% of all Americans feel
they are qualified to make their own dietary choices. With restaurant
profit margins averaging about 4%, a single frivolous lawsuit is enough to
put a small restaurant out of business. The industry needs to be
protected from frivolous and abusive lawsuits.

Dick Rush told the committee that IACI strongly supports this bill. Idaho
is a major producer of potatoes and if any state should be interested in
this legislation, Idaho should be. Since November of 2002, they have
seen a decline in exports of potatoes due to nutritional concerns.



Judy Bartlett, Idaho Farm Bureau felt that this is important for families.
She felt the potato processing plant closure has more to do with the
Atkin’s Diet than with anything else.



Senator Burkett asked if additives or chemicals are placed within food by
a manufacturer. The bill states that “Food” means: (c) articles used for
components of any other such article.



Kurt Holzer speaking for the Idaho Trial Lawyers Association said they
don’t oppose it, they do see some problems, but the idea is that it all
comes down to personal responsibility of those who choose to eat that
type of food. He said food litigation is far different than tobacco lawsuit.

MOTION: Senator Richardson made a motion to send H590a to the floor with a do
pass. Second was by Senator Sweet.
SUBSTITUTE
MOTION:
Senator Burkett said he could see some benefit in this bill, but it is too
broad. He made a substitute motion to send 590a to the 14th order for
amendment. Second was by Senator Marley.
COMMITTEE
VOTE:
Roll call vote was held on the substitute motion, with Senator
Darrington
, Bunderson, Marley and Burkett voting aye, and Senators
Lodge, Sorensen, Richardson and Sweet voting nay. Substitute
motion failed.
The original motion to send H590a to the floor with a
do pass was carried by a voice vote. Senator Richardson
will carry
this bill on the Senate floor
.