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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

MOTION:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Gubernatorial

Appointments

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

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

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

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

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

21-0101-0201

21-0102-0201

21-0103-0201

21-0104-0201

21-0105-0201

EXCUSED:

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

Senator Richardson will carry this bill on the Senate floor.

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

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

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

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

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

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

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

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

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

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

EXCUSED:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

EXCUSED:

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

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

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

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

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

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

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

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

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

EXCUSED:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

GUBERNATORIAL APPOINTMENT

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

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

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

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

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

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

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

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

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