Senate Judiciary & Rules Committee

 

2004 Minutes

 

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
February 6, 2004
February 9, 2004
February 11, 2004
February 13, 2004
February 16, 2004
February 18, 2004
February 20, 2004
February 23, 2004
February 25, 2004
February 27, 2004

March 1, 2004
March 3, 2004
March 5, 2004
March 8, 2004
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RS13561 Tom Frost told the committee that this bill amends various sections of the Idaho Code to correct the outdated references to the Youth Rehabilitation Act, which was replaced by the Juvenile Corrections Act in 1995.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.