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.

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

Commission for Pardons and Parole

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.

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.

EXCUSED:

VOTE on
appointment:

VOTE on
rules:

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 26^th 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.

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.

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.

Gubernatorial
appointment:

J. Phillip Reberger to 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 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.

11.10.01

Idaho Law Enforcement Teletypewriter System

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.

“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 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.”

VOTE:

21.01.01

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.

21.01.04-0301

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.

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 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 5^th 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.

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.

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 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 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. “

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.

EXCUSED:

VOTE:

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

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.

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.

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

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.

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.

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.

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.

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.

EXCUSED:

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.

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.

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.

EXCUSED:

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.

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.

EXCUSED:

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.

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.

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

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.

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.

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.

Vote:

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

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.

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.

EXCUSED:

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 5^th 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.

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

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.

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:

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

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.

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.

Senator Lodge will carry this bill on the Senate floor.

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 4^th
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
9^th 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 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.

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.”

VOTE:

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.

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:

VOTE:

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.”

EXCUSED:

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.

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.

Senator Lodge will carry this bill on the Senate floor.

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.

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

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.

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.

EXCUSED:

Senator Darrington will carry this bill on the Senate floor.

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.

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.

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.

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.

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.

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.

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”.