ARIZONA STATE SENATE

44TH LEGISLATURE

SECOND REGULAR SESSION

 

MINUTES OF COMMITTEE ON JUDICIARY

 

DATE:

March 7, 2000

TIME:   8:30 a.m.

ROOM: SHR 1

 

 

CHAIRMAN:

Senator Marc Spitzer

VICE CHAIRMAN:

Senator Tom Smith

 

 

 

ANALYST:

Rick Pyper

COMMITTEE

SECRETARY: 

Karen Neuberg

 

 

 

INTERNS:

Gail Hicks, Andrea Hoeffer

 

 

 

 

ATTENDANCE

BILLS

 

 

Committee Members
Pr
Ab
Ex
Bill Number
Disposition

Senator Aguirre

X

 

 

H.B. 2085

DP

Senator Cummiskey

X

 

 

H.B. 2126

DP

Senator Day

X

 

 

H.B. 2128

DP

Senator Freestone

X

 

 

H.B. 2150

DP

Senator Rios

X

 

 

H.B. 2189

DP

Senator Solomon

X

 

 

H.B. 2296

FAILED

Senator Wettaw

X

 

 

H.B. 2304

DP

Senator Smith, Vice Chairman

X

 

 

H.B. 2351

DPA

Senator Spitzer, Chairman

X

 

 

H.B. 2394

DP

 

 

 

 

 

 

H.B. 2395

DP

 

 

H.B. 2416

DPA

H.B. 2427

DP

 

 

H.B. 2428

DP

H.B. 2472

DPA

 

 

H.B. 2497

DP

H.B. 2501

HELD

 

 

H.B. 2527

DP

H.B. 2554

DPA

 

 

H.B. 2629

DP

H.B. 2698

DP

 

 

H.B. 2705

DP

H.C.M. 2007

DP

 

 

H.C.R. 2015

HELD

H.C.R. 2027

DPA

 

 

 

 

 

SPECIAL PRESENTATIONS

 

 


GOVERNOR’S APPOINTMENTS

 

Name
Position
Recommendation

Carrol M. de Broekert

Member, Board of Executive Clemency

CONFIRMATION

Ronnie R. Cox

Member, Commission on Trial Court Appointments-Maricopa County

CONFIRMATION

Chairman Spitzer called the meeting to order at 8:34 a.m. and attendance was taken.  For additional attendees, see Sign-In Sheet (Attachment A).

 

APPROVAL OF MINUTES

 

The minutes of the February 15, 2000, meeting were approved as distributed.

 

EXECUTIVE NOMINATIONS

 

Carrol M. de Broekert – Member, Executive Board of Clemency – RECOMMEND CONFIRMATION

 

Senator Spitzer stated that Mr. de Broekert had appeared before the Committee previously, and was appearing for reappointment.

 

Senator Smith moved the Committee on Judiciary recommend to the full Senate the CONFIRMATION of Carrol M. de Broekert as a member of the Board of Executive Clemency.  The motion CARRIED with a roll call vote of 7-0-2. (Attachment #1)

 

Ronnie R. Cox – Member, Commission on Trial Court Appointments-Maricopa County – RECOMMEND CONFIRMATION

 

Mr. Cox was unable to be present. Since there were no objections from the Committee, the confirmation was recommended.

 

Senator Smith moved the Committee on Judiciary recommend to the full Senate the CONFIRMATION of Ronnie R. Cox as a member of the Commission on Trial Court Appointments-Maricopa County.  The motion CARRIED with a roll call vote of 7-0-2.  (Attachment  #2)

 

CONSIDERATION OF BILLS         

 

H.B. 2150 – DNA testing; prisoners (now: post-conviction DNA testing) – DO PASS

 

Analyst Rick Pyper explained the bill allows felons to request DNA testing of evidence relevant to their cases. 

 

Senator Spitzer said he prepared an amendment related to the repeal of archaic laws; the bill on which passed this Committee (S.B. 1471), but has not yet been heard on the floor.  He would like to see that bill go through the process.  However, at the urging of the sponsor, he is withdrawing that amendment from this bill because he would like to see this bill become law. 

 

The Honorable Ron Reinstein, Judge, Superior Court,  said he was here about a month ago and discussed the DNA expansion to criminals in addition to sex offenders.  This bill is the other side of the coin.  Judge Reinstein reminded the Committee that he serves on the National DNA Commission, which has drafted model legislation that was the basis for this bill. 

 

Judge Reinstein gave a case example:  In 1983, David Shepherd was convicted of rape and robbery, and sentenced to 30 years in prison because he worked at an airport and the victim had seen an airport insignia on one of her abductor’s shirt.  The woman had been abducted and raped by two men, one of whom was called “Dave.”  The police rounded up all the men named David who were black and worked at the airport.  The victim’s purse and car were found at the airport near the building in which Mr. Shepherd worked, and the victim identified him by sight and voice.  Judge Reinstein said the blood test showed a match.  Mr. Shepherd had an alibi, but no witness to substantiate that alibi.  Eleven years later, a DNA test was done at Mr. Shepherd’s request, and it proved that Mr. Shepherd’s DNA was not a match to that found on the rape victim.  He was released, but had lost eleven years of time with his son.  Judge Reinstein reminded the Committee that the Governor of Illinois has declared a moratorium on executions until DNA testing has been completed on death row inmates.

 

Judge Reinstein said this bill will offer a window for people that did not have DNA testing available (usually before 1990), if the facts in the case warrant it.

 

Senator Spitzer stated that his former roommate is representing some of the persons who were wrongfully imprisoned in Illinois, and some of the stories are gross miscarriages of justice. He said this is an important means of reestablishing the public perception of the Justice System.

 

Jerry Landau, Special Assistant, County Attorney’s Office, stated this past Sunday the Tribune ran an article reprinted from the L.A. Times which discussed post-conviction DNA testing.  It said the prosecutors resist such testing.  He said that in Maricopa County, the chief prosecutor, County Attorney Rick Romley, is not resisting it.  He said the County Attorney’s Office feels this is the other half of the equation; that those who are not guilty are not found guilty.  This will go a long way in reaching that goal.

 

Senator Spitzer stated he appreciated the prosecutors supporting this bill in pursuit of justice.  He noted that  Mike Petchel, Executive Director, Arizona Professional Police Officers Association; and Ed Cook, Executive Director, Arizona Prosecuting Attorneys’ Advisory Council, were present in support of the bill.

 

Senator Smith moved H.B. 2150 be returned with a DO PASS recommendation.  The motion CARRIED with a roll call vote of 7-0-2.  (Attachment #3)

 

H.B. 2304 – psychiatric security review board; release (now: guilty except insane study committee) – DO PASS

 

Assistant Analyst Julie Szperling said the bill establishes a six-member Guilty Except Insane Study Committee with the following charges: a) review the legislative history of the insanity defense; b) review the current commitment process for persons found guilty except insane; and c) review statutes of Michigan, Illinois, Idaho, Montana and Utah relating to the insanity defense.  The bill requires the committee to report its recommendations to the Governor, the Speaker of the House, and the president of the Senate by December 15, 2000, and provide copies to the Secretary of State and the Director of the Department of Library, Archives and Public Records.  The study committee is repealed after December 31, 2000.

 

Judge Reinstein stated he is here to answer questions. He said he is neither in favor of nor against the bill.  He indicated that Dr. Potts has a sheet outlining the progress to date of the Security Review Board, and its review of those found guilty except insane.  He said it is too early to tell where “the holes are” in the statute.  Many people who were found guilty except insane have been sentenced to the Arizona State Hospital for a sentence equal to the length of time they would have been in jail. He added that no “horror stories” have been heard to this point.

 

Senator Spitzer questioned subsection B, paragraph 4 of the bill, and the statement that Illinois, Idaho and Montana have abolished the insanity defense.  Judge Reinstein replied he is not sure; he understands those states look to intent only.  If is someone is found not guilty, he is not sure what follow-up there is.  Senator Spitzer said his concern was regarding the inaccuracy of the statement, which should be avoided.  He said there was not enough time to prepare amendments, but his staff is researching all 50 states to determine the best representation.

 

Senator Solomon said she had the same section circled; she understands they still have to meet the intent standard and rely on case law, and that even in these states, that does not mean the defense cannot be used.  She said she does not believe anyone has abolished the insanity defense.

 

Senator Spitzer said the McNaughton Rule is still part of case law.

 

Judge Reinstein agreed.  He said intent still has to be proven.  If intent cannot be proven, and a person is not found guilty, he can walk out the door.  With the guilty but insane sentence, the Security Review Board is continually reviewing the case.

 

Senator Smith moved H.B. 2304 be returned with a DO PASS recommendation.  The motion CARRIED with a roll call vote of 7-0-2.  (Attachment #4)

 

H.B. 2126 – domestic violence – DO PASS

 

Ms. Szperling stated the bill makes numerous substantive and technical changes to the domestic violence and injunction statutes.  She said it conforms the statutory language related to service of injunctions against harassment to the language related to service of an order of protection.  It makes changes to statutes relating to domestic violence, the definition of domestic violence and the relationship of parties that must exist for domestic violence to exist.

 

Judge Elizabeth Finn, Phoenix Municipal Court, representing Supreme Court Committee on the Impact of Domestic Violence and the Courts,  said this is a bill from the Supreme Court which deals with “housekeeping issues” and things that are in statute which are inconsistent.  She said she would respond to questions.

 

Mark Syracuse, Management Assistant, City of Phoenix, representing Councilwoman Peggy Bilsten, offered the Councilwoman’s remarks for the record because she could not be present today.  (Attachment B)

 

Senator Spitzer noted the following were in support of the bill:  Eric Edwards, representing the Phoenix Police Department and the Arizona Association of Chiefs of Police; Jerry Landau, Special Assistant,  Maricopa County Attorney’s Office; Patrick Cunningham, Legislative Affairs, Office of the Attorney General; Ed Cook, Executive Director, Arizona Prosecuting Attorneys’ Advisory Council; and Bahney Dedolph, Director, Public Policy, Arizona Coalition Against Domestic Violence.

 

Senator Smith moved H.B. 2126 be returned with a DO PASS recommendation.  The motion CARRIED with a roll call vote of 7-0-2.  (Attachment #5)

 

H.B. 2189 – alcoholic beverages; veterans; club exception – DO PASS

 

Ms. Szperling stated the bill permits veterans groups to admit persons under the age of 21 who are active members of the armed forces, veterans of the United States Army National Guard, the United States Air National Guard or the United States Military Reserve Forces.

 

Representative Gail Griffin, sponsor of the bill, stated the bill was brought to her attention by the Veterans of Foreign Wars (VFW) members in Sierra Vista; she said some members had been asked to leave because they were not 21.  The bill only authorizes them to stay on club premises.

 

Senator Smith moved H.B. 2189 be returned with a DO PASS recommendation.  The motion CARRIED with a roll call vote of 7-0-2. (Attachment #6)

 

H.B. 2427 – appropriations; department of law – DO PASS

 

Intern Gail Hicks stated the bill appropriates $3.7 million dollars from the State General Fund and $3.8 million from other funds in FY 2000-2001 to the Attorney General’s Office (AG) for a variety of purposes.  Also, $2.45 million is appropriated from the victims’ rights fund for victim-related purposes. The Victim Compensation and Assistance Fund is administered by the Arizona Criminal Justice Commission and allocates funds to public and private agencies for the purpose of establishing, maintaining, and supporting programs that compensate and assist victims of crime.

 

Those present in support of the bill were: Lt. John Blackburn, Mesa Police Department; Tim Delaney, Chief Deputy Attorney General, Attorney General’s Office; and Joseph Easton, Program Manager Legislation & Policy, Arizona Criminal Justice Commission (ACJC).

 

Senator Solomon moved H.B. 2427 be returned with a DO PASS recommendation. The motion CARRIED with a roll call vote of 6-1-2.  (Attachment #7)

 

H.B. 2428 – computer crimes – DO PASS

 

Mr. Pyper said the bill creates new crimes and updates existing ones relative to computer technology.  Representatives of the Attorney General’s Office (AG) were present to discuss the items outlined in the fact sheet.  Mr. Pyper added there are no amendments.

 

Representative Verkamp, sponsor of the bill, stated this bill is an effort to bring the criminal code into the computer age.  He added this is a consensus bill, and that questions could be directed to the AG’s representatives who have done a lot of work to bring the statutes together.

 

Steven Powers, Vice President and Treasurer, Stop Net Abusers, Inc.,  stated his organization is nonprofit, and is trying to make the Internet safer.  He noted that his background is in small to medium business consulting.  The purpose of his presentation is to emphasize the need for record keeping and who should have them.  He noted a friend had an article concerning capital punishment which was placed on a web site.  Once it was on the web site, he received a death threat which was considered serious enough to turn over to the Federal Bureau of Investigation (FBI).  The threat appeared to come from Brown University, but through the investigation it was determined the threat came from Hawaii University.  However, this lead took them to a community college which used the University’s system to forward messages.  If the sender had purged his log files, the perpetrator would not have been apprehended.  He was found out and expelled. 

 

Mr. Powers said that there are no current standards for record retention.  The bill offers 180 days, but he feels that is not long enough.  Mr. Powers cited several more examples to fortify that statement.  He said further examples include the recent school threats in Phoenix.  If not for fast action on the records, it would not have been discovered who sent those messages. Without log files, it would be difficult to take action.  He also added that the recent jamming of E-Bay and other popular sites is another example why records must be kept on providers.   If anyone deletes the logs, the investigation will end.  Mr. Powers said he is sure the Internet Service Providers (ISP) will complain about the added burden of keeping records, but pointed out that telephone companies are required to do so, and it is to their benefit.  He urged that one year retention time be set. He also urged strong penalties if that is not met.  Mr. Powers recommended that a separate unit must be formed within the agency to which this task is assigned, and that it be fully funded in order to have personnel who understand the medium, and coordinate efforts with other criminal justice units.  The means to implement the law is necessary.  Mr. Powers said local authorities need to maintain the logs of such reported incidents because people will go to their police department first.  The record establishes that the person is a victim of harassment, and police report numbers should be assigned to document the call, as they are to other reported incidents. 

 

Senator Spitzer asked if Mr. Powers is in support of the bill.  Mr. Powers replied he is in favor as long as the bill meets minimum standards on record keeping. He added it takes quite a long time for agencies to backtrack and trace a call.

 

Bob Hartle, citizen of Phoenix, said that he represents the victims, and was author of the first identity theft law in the United States and helped to pass the federal Identity Theft law.  Mr. Hartle said he had appeared in 1996, with the help of Senator Smith, to push the Identity Theft law, and since that time he and his wife have helped hundreds of victims.

 

Mr. Hartle related that he had been a victim of identity theft, and was constantly told by banks and other organizations that they would like to help, but their “hands were tied,” because there was no law which made him a victim. He noted it took four years to get his life back together. This Legislature passed the first law which made the awareness of this crime a national item, and Senator Kyl and Congressman Shadegg introduced the federal law, which makes it a federal felony to steal someone’s identity.  More than half the states have a law against identity theft.  Mr. Hartle stated the Maricopa County Attorney’s Office and the State Attorney General’s Office have been invaluable in helping victims and prosecuting criminals.

 

Mr. Hartle said this bill will allow the agencies to do more, and that the Federal Trade Commission (FTC) will be doing a national awareness program this year to make the public aware of identity theft and computer crimes.   It will be done through all the media, as well as an 800 line and a computer program.  There is a computer system for all law enforcement agencies to use to help track the criminals doing these crimes on the Internet and through paper trails.  Mr. Hartle urged the law be passed, and stated it would be another first for Arizona, and another step in helping victims of these types of crimes.

 

Stephen Mallory, President, Stop Net Abusers, Inc., related two incidents sent online by a person whose site is “Nice Guy For You” to two innocent victims on a list of hundreds.  Mr. Mallory said the victims are predominantly women who are new to computers and online chatting.  He said the women have been stalked and threatened, including death and rape.  One woman was constantly stalked for two years, until she left the Internet.  Another variation of threat on the Internet is by those who would damage another’s reputation. They steal an identity and try to use it against you.  He used Senator Spitzer and a disgruntled constituent as an example, and suggested the thief could send out e-mails to young girls asking sexual favors in Senator Spitzer’s name. 

 

Mr. Mallory stressed that regardless of the language of the bill, it must be adequately staffed and funded to whichever agency receives the task of enforcing it.  He echoed Mr. Powers’ statement that the agency should be funded with its implementation, and should consist of well-trained staff which understands the Internet and are sensitive to the victim’s predicament.  They must coordinate with other law enforcement agencies. He gave additional examples of what can happen when proper staff is not used.  His example related to the FBI investigation of “Nice Guy For You.”  Mr. Mallory concluded that without proper implementation such legislation will be ineffective.

 

Senator Spitzer noted the following were in support of the bill:  Patrick Cunningham, Director of Legislative Affairs, AG; Ed Cook, Executive Director, Arizona Prosecuting Attorneys’ Advisory Council; Lt. Rick Knight, Department of Public Safety (DPS); George Weisz, Executive Assistant, Governor’s Office; Sgt. Andy Swann, representing the Association of Highway Patrolmen of Arizona; Joseph Easton, Arizona Criminal Justice Commission; Eric Edwards, representing the Phoenix Police Department and the Arizona Association of Chiefs of Police; and Jerry Landau, Special Assistant, Maricopa County Attorney’s Office.

 

Ms. Raye Stiles, of Tucson, said she is glad to see this statute come into being, and is glad to see the Attorney General is upgrading some of the statutes.  She said she has a concern she would like the Committee to consider.  The concern involves the immunity for those who report “upon discovery” when offensive e-mail comes to their home computers.  She said there needs to be more clarity because she has learned, in the past few months, that there is an appreciable difference about how the AG prosecutes cases and how some county attorneys prosecute cases.  Ms. Stiles stated her introduction to unsolicited e-mail was frightening, knowing the penalties involved.  She said she had gone into a healthcare for seniors chat room and began receiving e-mail.  The problem was that it was not health related, it was pornographic.  She received so many in the space of 10 minutes, that it crashed her computer.  Ms. Stiles said she deleted them, and they kept coming.  She contacted her ISP, America on Line (AOL), and learned about the “war.”  Ms. Stiles claimed that in Tucson people are prosecuted for having this information on their hard drive even though it was unsolicited.  She said that is unfair.

 

Senator Spitzer said the defendant would lack criminal intent, therefore, there would not be an element of crime.

 

Ms. Stiles replied that the statute does not address intent, only possession.  This bill’s position of “upon discovery” is good, but she feels it needs more clarity for the courts in Pima County so that innocent people are not faced with 17 to 20 years in prison and lifetime registration as a sex offender.  She noted the Tucson Police Department can pull deleted e-mail off a hard drive. She said innocent people should not be “sacrificed” because the language is not clear.

 

Senator Solomon said that Ms. Stiles contacted her about six months ago, and since then Mr. Pyper and Jerry Landau, of the Maricopa County Attorney’s Office, have been working with her to address the problem.  She said language was originally agreed upon that would have given people more time upon discovery to report what was being sent to them.  There was no agreement reached on language for the amount of time allowed to report such e-mail beyond “upon discovery.”  Senator Solomon said that seems to be “as good as it is going to get” at this point.  She believes the points Ms. Stiles has raised are valid and it needs to be worked on further.  She thanked Ms. Stiles for coming up from Tucson. 

 

Senator Freestone said it should not be dismissed easily. If a person is convicted of possession of pornographic material, the sentence is nearly a death sentence because that person must carry the label of sex offender around forever.  He cited a case in the East Valley.  He said adequate protection has to be put into the law.  A lot of people are afraid of reporting such incidents.  If something is to be done, it must be done right.

 

Senator Spitzer said the bill has gone through numerous changes.  Representative Verkamp has been working on it for a year.  He said there must be a balance between the crimes on the Internet and the efforts to deal with them, and the rights of innocent individuals.  It is a strict liability offense, which is rare and not favored by the law.  He said it must be seen that those individuals are not “swept up in the morass.”  He suggested there is enough legitimate crime on the Internet to keep law enforcement busy, although this is also a valid concern.  He said he assumes that Representative Verkamp and the attorney generals offices will work on addressing these issues in the form of floor amendments.

 

Senator Solomon said they tried for months to arrive at an amendment which was acceptable to all parties and could not achieve that.  That was when she told Ms. Stiles that this language was what was agreed to.  She said she has other language which she would be interested in pursuing, and she did not mean to dismiss the issue. 

 

Senator Freestone apologized and he did not mean his comments to be a personal directive.  He feels the Legislature needs to make sure it gives adequate protection for the innocent, particularly when it is computer related.  He said the computer is bringing many things across the globe, including serious problems.

 

Ms. Stiles emphasized the fact that the AG does not have time to engage in this sort of thing, but there is a big difference in the AG and the Maricopa County Attorney General, and what is being done in Pima County.  She said they are prosecuting “left and right and peoples lives are at issue.”

 

Senator Smith moved H.B. 2428 be returned with a DO PASS recommendation.  The motion CARRIED with a roll call vote of 7-0-2.  (Attachment #8)

 

Senator Cummiskey stated the issue raised about balancing law enforcement and the rights of individuals needs to be addressed on the floor.  He hopes Senator Solomon will come forth with the language, so that there is thorough discussion on the floor.  He voted aye.

 

Senator Freestone echoed Senator Cummiskey’s remarks, as did Senator Rios.

 

H.B. 2394 – search warrants; issuance; service – DO PASS

 

Ms. Hicks stated the bill allows and sets standards for the use of no-knock search warrants.

 

Representative Linda Binder, sponsor of the bill, stated the bill was brought to her attention by the Attorney General’s Office.  She said there is a great need to pass this bill, as it would allow an officer to break and enter a building or vehicle to execute a search warrant, if an unannounced entry has been authorized or the officer reasonably believes that giving notice of his purpose would endanger his safety.  She noted several law enforcement officers have been lost recently.  Representative Binder stated there has been a decision by the Supreme Court that the police need not knock and announce, if they reasonably believe that such  notice would be dangerous or futile, or would inhibit the investigation of the crime. They refused to give blanket no-knock rules for all felony drug investigations.  This bill would address that.  The officers still have to appear in front of a judge, and present greater cause for concern than obtaining a regular search warrant.  This bill would conform to the Supreme Court decision. 

 

Senator Freestone asked for clarification to be sure this warrant can only be exercised in the extreme cases where there is a notorious element that may present extreme danger to the officer.  Representative Binder added they are still required to go before the magistrate and make a reasonable showing that announced entry would endanger the safety of the officer.  Senator Freestone wondered on what the endangerment is based.  He said some people get over zealous, and he wants to make sure that it is kept for the extreme cases where a known notorious figure is involved.  Representative Binder agreed with that.

 

Tape 1, Side B

 

Colleen French, Technical Expert, Attorney General’s Office, explained the no-knock warrant would only be exercised upon information from the police department given to the magistrate to the effect that knock and announce would endanger the safety of the people inside or the officer. She emphasized it would only be used in extreme cases.

 

Senator Freestone clarified there is a provision in the law to keep it within those bounds.  Ms. French said it is very specific in the statute.

 

Senator Solomon clarified that the statute is merely conforming Arizona law with the federal law.  Ms. French said it is conforming with the Fourth Amendment of the U.S. Constitution. 

 

Shannon Slattery, Maricopa County Public Defender’s Office,  stated the issue she would like to address is a section dealing with evidence pursuant to a search warrant, and the implications it has on Chapter 39 of the Criminal Code.  That Chapter sets forth certain “rules” that are to be followed on the form of the warrants and how they are to be issued.  It applies to the manner in which a warrant must be served, the receipt of property under a warrant, unlawful procurement of a warrant, and exceptions to a warrant received on good faith. 

 

Ms. Slattery said  she understands the bill to say that any evidence seized pursuant to a warrant shall not be a violation of Chapter 39.  That would seemingly obviate technical violations of the rules set forth in Chapter 39 as a basis for suppression.  If there is a significant violation in one of these areas, there would likely be a constitutional violation that would proceed as well. 

Senator Spitzer asked if the defense attorney would not file a motion to suppress. Ms. Slattery said a motion to suppress would be based on the violation of Chapter 39.  If the violation of Chapter 39 is no longer available as a basis for suppression, a judge may see no basis for suppression under that circumstance.  Senator Spitzer interjected that that is assuming there is no Fourth Amendment issue.  Ms. Slattery conceded there may be a Fourth Amendment issue which goes along with it, but judges do sometimes separate the issues and find if a warrant is facially invalid, then the Fourth Amendment issue is subverted to the warrant.

 

Senator Spitzer noted that the following were present in support of the bill:  Eric Edwards, Phoenix Police Department and the Arizona Association of Chiefs of Police; Jerry Landau, Maricopa County Attorney’s Office; Lt. Rick Knight, Arizona DPS; Patrick Cunningham, AG Office; and Ed Cook, Prosecuting Attorney’s Advisory Council.

 

Senator Smith moved H.B. 2394 be returned with a DO PASS recommendation.  The motion CARRIED  with a roll call vote of 8-0-1.  (Attachment #9)

 

H.B. 2395 – methamphetamines; child; vulnerable adults; abuse – DO PASS

 

Representative Binder, sponsor of the bill,  stated that this bill sends a stern message to all “meth brewing” adults that the AG and the State of Arizona will not tolerate the abuse of children or vulnerable adults who are exposed to the “unbelievable dangers of meth making.”  She noted that last year  there were over 300 cases of meth labs in Arizona with children who were growing up in filthy, drug-infested homes, who were fending for themselves because their parents were ”high.”  This bill will allow the drug dealers to be charged with child abuse, and in the case of death of a person in one of these homes, there will be a first degree murder charge.  Anyone in possession of the oil used to make methamphetamines will be charged with a class 2 felony. Representative Binder said this is an important bill and she urges its passage.

 

Intern Andrea Hoeffer  explained the bill does three things:  1) it expands the scope of felony murder offenses to include the manufacture of a dangerous drug; 2) it expands the scope of the crime of child or vulnerable adult abuse to include permitting a child or vulnerable adult to enter or remain in a structure or vehicle where certain chemicals or equipment exist for the manufacture of a dangerous drug; and 3) includes liquid methamphetamine and amphetamine as a form of prohibited dangerous drug.

 

Senator Spitzer clarified that Arizona has a felony murder rule, which provides that if there is a death in the commission of a felony, that is considered murder.

 

Senator Solomon said a few months ago there was a child found dead in a meth lab in Tempe, and clarified if such a thing happened, under this bill those parents would be found guilty of murder.  Ms. Hoeffer confirmed that.

 

Colleen French, AG Office,  verified that the parents would be charge with child abuse and with felony murder with child abuse as the existing felony.

 

Senator Spitzer noted the following were present in support of the bill:  Jerry Landau, Maricopa County Attorney’s Office; Patrick Cunningham, AG Office; Eric Edwards, Phoenix Police Department and Arizona Association of Chiefs of Police; Ed Cook, Arizona Prosecuting Attorneys’ Advisory Council; and Lt. Rick Knight, DPS.

 

Senator Solomon moved H.B. 2395 be returned with a DO PASS recommendation.  The motion CARRIED with a roll call vote of 8-0-1.  (Attachment #10)

 

H.B. 2085 – vehicle license plates; number; replacement – (now: secretary of state; census; appropriations) – DO PASS

 

Ms. Hicks stated the bill appropriates $300,000 to the Secretary of State in FY 1999-2000 for census support, awareness and coordination.

 

Senator Smith moved H.B. 2085 be returned with a DO PASS recommendation.  The motion CARRIED with a roll call vote of 7-0-2.  (Attachment #11)

 

Senator Rios stated this bill goes a long way in assuring an accurate count in Arizona, but he thought the appropriation could have been higher.

 

Present in support of the bill was Delia Garcia Kim, Director, Census 2000, Secretary of State’s Office.

 

H.B. 2128 – victim restitution monies; disbursement (now: victim compensation; unclaimed restitution) – DO PASS

 

Ms. Hoeffer explained the bill requires the Department of Revenue (DOR) to deposit unclaimed victim restitution monies in the victim compensation and assistance fund. 

 

Senator Spitzer said there were no slips in opposition.  The following were present in support of the bill: Joseph Easton, Arizona Criminal justice Commission; Tonia A. Garrett, Government Affairs Manager, Arizona Association of Counties;  Jerry Landau, Maricopa County Attorney’s Office; Ed Cook, Arizona Prosecuting Attorney’s Advisory Council; Lyle Mann, Director, Arizona Peace Officer Standards and Training Board (AZPOST); and Gordon L. Mulleneaux, Associate Clerk, Superior Court.

 

Senator Smith moved H.B. 2128  be returned with a DO PASS recommendation.  The motion CARRIED with a roll call vote of 8-0-1.  (Attachment #12)

 

H.B. 2629 – peace officer standards; board; duties – DO PASS

 

Ms. Hicks stated the bill modifies the powers and duties of the Director of the Department of Public Safety (DPS) and the Executive Director of the Arizona Peace Officer Standards and Training Board (AZPOST).  It eliminates the requirement that the Director of DPS be provided with recommendations from AZPOST on matters relating to law enforcement and public safety.  It also requires the AZPOST board to employ an executive director and other staff members as necessary to fulfill the powers and duties of the board.

 

Senator Rios said he understands that AZPOST has been working with Native American Police Departments throughout the State to solve some issues.  He is pleased they are working on it and encourages them to continue.

 

Senator Smith moved H.B. 2629 be returned with a DO PASS recommendation. The motion CARRIED with a roll call vote of 9-0-0. (Attachment #13

 

Those present in support of the bill were: Joseph Easton, Arizona Criminal Justice Commission; Lt. John Blackburn, Mesa Police Department; Eric Edwards, Arizona Association of Chiefs of Police, and Phoenix Police Department; Lyle Mann, Director, AZPOST; Ed Cook, Arizona Prosecuting Attorneys’ Advisory Council; Jerry Landau, Maricopa County Attorney’s Office; Ed Wren, Arizona Highway Patrol Association; Lt. Peter Knight, Arizona DPS; Sgt. Andy Swann, Association of Highway Patrolmen of Arizona; and George Weisz, Executive Assistant, Governor’s Office.

 

H.B. 2351 – ignition interlock devices – DO PASS AMENDED

 

Mr. Pyper explained the bill requires those convicted of extreme DUI (driving under the influence) or DUI with a passenger under 15 years of age to install an  ignition interlock device. The bill transfers the related court duties to the Motor Vehicles Division (MVD). 

 

Mr. Pyper explained the amendment requires the Administrative Office of the Courts (AOC), the MVD, and County and Municipal attorneys’ offices to submit to the Governor’s Office of Highway Safety statistics relating to the number of DUI convictions in the preceding year, and the number of ignition interlocks which are ordered to be installed.  That information is to be transmitted to the Speaker of the House and the President of the Senate.

 

Senator Rios asked if the court order pertains to all the vehicles if a person is convicted of DUI and is ordered to install the ignition interlock device in his vehicle, but also has multiple vehicles registered under his name.   Mr. Pyper said according to page 3, line 7 of the bill, it is up to the discretion of the court to equip any vehicle with the interlock device.  He believes that discretion is carried throughout the bill.  The court is given the discretion to have the device installed in all the person’s vehicles.

 

Senator Rios asked what the cost of the interlock device is.  Mr. Pyper deferred to Representative Gray.

 

Representative Linda Gray, sponsor of the bill,  stated that the word “shall “ is in the bill for extreme DUI.  It says the device should be applied “on the vehicle the person who has been convicted drives,” not the number registered to him.   The person should only be driving the vehicle on which the interlock device has been installed.  Representative Gray stated the city prosecutors have undermined the .18 established in statute by plea bargaining their cases to a lesser charge. 

 

Senator Rios asked about the cost.  Representative Gray answered the devices cost about $60 per month, and they are installed for up to a year. 

 

Shannon Slattery, Maricopa County Public Defender’s Office, said this bill raises several concerns with her clients.  Her understanding is that the bill applies to second time misdemeanor DUI, which misdemeanor includes DUI drug cases.  The interlock device would not impact drug cases since there is no breath alcohol level.  There is no discretionary provision to allow the judge to impose alternative sanctions on a DUI drug conviction.  Additionally, because of the financial impact of this bill on the person required to apply the interlock device, there is some concern over the indigent representation which the Defender’s Office provides to its clients.  At an average cost of $725 per year, the bill could have significant impact on a person’s ability to get to work, access medical services and perform other tasks, if they have only one vehicle.

 

Senator Spitzer said that her argument could apply to every sanction in criminal law because they impose some hardship.  Ms. Slattery said with respect to fines, fees and penalties for other criminal offenses, discretion is used to take into account the financial circumstances of the person with whom they are dealing.  This is a mandatory imposition by MVD, there is no sliding scale of the fee and no discretion for the judge to waive or address that fee.

 

Senator Spitzer said the imposition of fines, penalties and incarceration is not preventative; they are punitive.  The interlock is preventative, and one could argue there is an even stronger case made for this bill than for fines and penalties.

 

Ms. Slattery said it can also be punitive because it may impose a financial burden on the person being required to place the device on their car.  It could impact their ability to perform their other obligations.  Senator Spitzer stated if he had a client with two DUI convictions, he would want them to stop drinking and driving.  Ms. Slattery said she does not disagree with that point, but the client population she serves is indigent, unemployed, or unemployed with a family, and receiving provisions from welfare which would impede their ability to pay.

 

Senator Wettaw said it is not mandatory to go out and drink in such quantity.  He is tired of hearing the excuses.  He asked what happens if they hurt or kill someone while intoxicated.  He said he respects her views, but cannot agree with her.

 

Ms. Slattery said if a person lives in a rural county who has no access to mass transit, and cannot access his or her vehicle, or is financially unable to perform this, he or she is not going to be able to pay the restitution to the fund, and is not going to be able to pay back the people he/she may  have injured, and is not going to be able to pay the fines due the court.

 

The consensus of the Committee was that they have the money to go out and drink.

 

Senator Freestone elaborated that point and said that $60 for a locking device is little compared to the hundreds of dollars of alcohol they may consume, and they do not let their poor status stand between them and the drink.  When it becomes excessive and injures the public, it becomes costly to everyone, and drastic measures must be taken to stop it.

 

Ms. Slattery said she is merely suggesting that the issue of fees could be studied and allow some discretion by the judge to access the financial availability of the person’s funds to pay this and support their family.

 

Senator Spitzer read the names of those in support of the bill:  George Diaz, Legislative Specialist, Arizona Supreme Court; Eric Edwards, Phoenix Police Department; Jerry Landau, Maricopa County Attorney’s Office; Alberto Gutier, Director, Governor’s Office of Highway Safety; Patrick Cunningham, Attorney General’s Office; Mike Petchel, Executive Director, Arizona Professional Police Officers Association; Lt. Rick Knight, DPS; and Andy Swann, Association of Highway Patrolmen of Arizona.  Lorraine Brown, MVD, was present to answer questions.

 

Senator Smith moved H.B. 2351 be returned with a DO PASS recommendation.

 

Senator Smith moved the Spitzer amendment dated 2/28/00, 8:52 a.m. be ADOPTED.  The motion CARRIED by  voice vote.  (Attachment C)

 

Senator Smith moved H.B. 2351 be returned with an AS AMENDED, DO PASS recommendation.  The motion CARRIED with a roll call vote of 7-1-1. (Attachment #14)

 

H.B. 2416 – county redistricting – DO PASS AMENDED

 

Ms. Hicks explained the bill changes how often the county board of supervisors must meet to redraw supervisorial districts from every four years to every ten years.  Current law requires the board of supervisors in each county to meet on the first Monday in the April preceding a presidential election to divide the county into supervisorial districts.   The decennial census figures are used to determine population within the county.  The County Supervisors Association says that the new census information will not be released until December 31, 2000, and that additional months to analyze the information may be prudent.

 

Senator Day clarified that it is the first Monday in April just preceding a presidential election, and this changes it to ten years.

 

Representative Preble, sponsor of the bill,  stated it is a consensus bill, brought to her by Mr. Tom Bowen, to whom she would like to defer.

 

Thomas Bowen, citizen of Tucson, said he would like to address two things: 1) the current law requires redistricting the first of April, 2000, but without having the current census data, the counties cannot comply.  He said if this passes, it could give them the ability to continue with the redistricting subject to [another] redistricting next June.  2) The current standard for redistricting is “as close as practical.” He said what it has done is result in a large dichotomy between the smallest and the largest districts.  Mr. Bowen noted that in both Maricopa County and Pima County, the largest district is twice the size of the smallest district.  He claimed that disenfranchises the power of the voter in the largest district.  The standard would be changed by this bill to require they be equal or have not more than a 10% differential between the districts.

 

Senator Freestone stated that redistricting in the faster-growing areas every four years would serve a purpose, but he thinks in the slower-growing areas it would not have an effect. He related that when he served on the Maricopa County Board of Supervisors, if  there was no significant change, they adopted what was given to them in the prior census.  He said that was perfectly legal and correct.  He asked what the problem is. 

 

Mr. Bowen said that the bill says the counties are permitted to redistrict more often if they choose to do so.  It implies they would have the data to support the redistricting when they do that.  He said that Maricopa County did a mid-census redistricting recently.

 

Senator Freestone said this may put the numbers “out of sync” if passed.  It could affect some of the fast growing numbers, because in ten years the growth is phenomenal.   Mr. Bowen said that the problem arises when the end of the current census is imminent and the bill requires the counties to redistrict the April prior to that information being released.  In this instance, there is no valid data on which to base redistricting.  This bill will align them with the census, and the redistricting of the Legislative districts, which will be done next year.  Senator Freestone asked if this would preclude them from doing it sooner.  Mr. Bowen said the language offers them the ability to do it more often. Senator Freestone said he does not understand why the bill is necessary.

 

Senator Day said Senator Freestone has raised her concern, and she does not understand the bill either. 

 

Mr. Bowen stated there are two issues.  The counties are required every four years to redistrict when census data is not available that often.  To that point, Senator Day said there is population data which might be used.  Senator Spitzer said there is no census data, which makes redistricting federally legal.

 

Senator Freestone said the counties could adopt the boundaries as they are now at a public hearing, based on the lack of census figures.   He said to move it to the tenth year and say it will allow the counties to redistrict does not make sense, as they can do a mid-census redistricting now.  Mr. Bowen said the other issue is that a redistricting criteria is embodied in the bill, which would prevent the dichotomy between the districts.

 

Representative Preble agreed that the law does allow them to redistrict now, and that Maricopa County had done a mid-census redistricting. She said that is not the case in Pima County, and that is the reason she agreed to bring the bill   She said it has been “smoothed over” so many times in Pima County that the county has ended up with a situation, as explained by Mr. Bowen, where the supervisorial district  in which she lives is twice as big as the smallest district in Pima County. This bill is giving a message to her county that they need to redistrict.

 

Tonia A. Garrett,  Government Affairs Manager, Arizona Association of Counties, said the Association is neutral on the bill, but is supportive of amendments which clarify the time in which the meetings would have to take place, making sure they fall after the data is acquired.

 

Tony Sissons, President, Research Advisory Services, Phoenix, stated he has provided some computer assistance to the counties as they have undergone redistricting and he supports the bill.  In listening to the discussion, Mr. Sissons said he decided to bring a matter to the Committee’s attention, and asked them to consider a change in timing to avoid going through redistricting twice.  Mr. Sissons noted the bill requires the counties to draw the new districts at the same time the legislative districts are drawn.  If the legislative plan splits existing precincts, as it has 130 times, then the new legislative boundary lines would have to be observed by county election staff, and they would have to create new precinct shapes to conform to the legislative district boundaries.  The new legislative boundaries will divide precincts into parts which must stay together under the approved supervisorial plan.  A fragmentation of the precincts may develop and additional polling places will have to be found and staffed.

 

Senator Spitzer said that problem could be taken care of as the bill moves forward, and asked staff to work with Mr. Sissons on those technical changes.

 

Senator Smith moved H.B. 2416 be returned with a DO PASS recommendation.

 

Senator Smith moved the Spitzer amendment dated 3/6/00, 2:29 p.m. be ADOPTED.  The motion CARRIED by voice vote.  (Attachment D)

 

Senator Smith moved H.B. 2416 be returned with an AS AMENDED, DO PASS recommendation.  The motion CARRIED with a roll call vote of 5-4-0. (Attachment #15)

 

Peter Solie, County Supervisors Association, was present in support of the bill.

 

 H.B. 2705 – wrongful death actions – DO PASS

 

Ms. Hoeffer explained the bill allows a surviving child, parent or legal guardian of a deceased person to bring a wrongful death action.

 

Senator Spitzer reminded the Committee he had proposed this bill last year.  He said it became involved in the “insurance wars.”  Representative Verkamp was present to answer questions.

 

David Thompson, Arizona Trial Lawyers Association, appeared in support of the bill.  He stated that last year he discussed the bill in this Committee, and it was a very good bill. The law currently says that a wrongful death action can be brought for a spouse or a child, but not a parent, unless there is first a “rubber stamp” filing in the Probate Court, which costs a filing fee and “clogs” the court. He stated that is old fashioned and should be done away with.

 

Senator Smith moved H.B. 2705 be returned with a DO PASS recommendation.  The motion CARRIED with a roll call vote of 9-0-0.  (Attachment #16)

 

H.B. 2472 – retail theft; omnibus – DO PASS AMENDED

 

Ms. Hoeffer explained the bill identifies new criminal activities related to shop lifting.

 

She explained the three-line Rios amendment dated 3/6/00 strikes lines 2 through 12 and eliminates increasing the amount of civil liability for shop lifting.   The Smith 19-line amendment dated 3/3/00 makes technical changes and makes it a class 5 felony to posses 15 or more fraudulent retail receipts, or universal product code labels (UPC), or possessing a device that manufactures fraudulent receipts or UPC labels. It makes it a class 6 felony to possess, use, transfer, make, alter or reproduce a fraudulent receipt or UPC label.  It allows the court to impose a fine of up to three times the value represented on the retail receipt or the price represented by the UPC code.

 

Representative John Verkamp, District 2, sponsor of the bill, stated the bill was brought by the retailers. He stated it is amazing when you hear some of the high tech ways in which shop lifting is committed. He noted that if these people would apply the same energy and effort to an honest living that they do for a dishonest living, they could make a million.

 

Michelle A. Ahlmer, Executive Director, Arizona Retailers Association, distributed pictures showing the way some people hide articles (Attachment E), and said it is surprising the amount of theft occurring, and it has increased in recent years.  A large percentage of those involved are using illegal drugs, and an increasing number are sophisticated professionals.  They travel throughout the Nation committing crimes.  They are aware of the existing dollar value in each state.  H.B. 2472 would change the law so that if an individual was apprehended with stolen goods from  three separate establishments within three days, they would be charged with a felony. Retailers are trying to combat shop lifting by installing expensive surveillance systems. The thieves are developing homemade tools and devices to deactivate security systems.  She indicated the pictures she had distributed.  One tool was used to remove the sensor device from clothing, which were then returned to the store for a refund. Ms. Ahlmer noted the other photo shows a person who lined his clothing with aluminum foil, and this prevents the sensor from picking up the stolen items hidden in his clothing. 

 

Ms. Ahlmer said other types of fraud are counterfeit receipts and UPC labels, and thieves are traveling state-to-state, stealing items, placing the labels on products, and then returning the items to the store for a refund.  One ring was tracked through the Midwest.  Existing forgery laws do not deal with this problem, but this legislation will deal with forgery, illegal documents and the machine used to make those documents.  This type of retail theft is very specific and the Federal Bureau of Investigation (FBI) reports that over $26 billion was lost to retail theft in 1998, and that excludes employee theft. This costs consumers four cents on every dollar.  It has been reported that grocery chains work 10 months of every year to support losses due to theft.  She said this bill will help reduce shop lifting.

 

Senator Rios said he appreciates the bill, but has a concern.  He understands the bill is aimed at professional thieves, but is concerned about increasing the penalty for restitution from $100 to $250.  He said he sees a lot of time and energy being spent by the courts to get kids and their parents to pay the restitution and to obtain counseling for the kids.  He said this is creating a lot of problems. These youth are not able to make the restitution.  He also has a problem with the class 5 felony applied if a person is convicted of three thefts in a row.  If a kid is convicted of stealing a candy bar three days in a row, he would then be convicted of a felony.  Senator Rios asked if a floor amendment could be offered to maintain the cost at $100 restitution. He wondered if Ms. Ahlmer would consider a cut-off point so that the kids were not convicted of a felony.

 

Ms. Ahlmer replied that professional thieves do not become professional without being amateurs first.  There is an element that needs to be addressed early on.  She added that the figure was raised from $100 to $250 because it has not  been raised for years.  Regarding the three incidents of theft, Ms. Ahlmer said there is nothing in the bill to remove a prosecutor’s discretion on pursuing the case.  She did not think most retailers would expend the effort for a candy bar.  Ms. Ahlmer said the Association does not want to address a dollar figure because the amount of the theft can change rapidly.  She noted an organized ring may steal a $50 coat at one establishment and a $250 VCR at another, and she feels it is cleaner to approach it in the manner outlined in the bill.  The bill is going after the criminal element.

 

Senator Rios said he appreciates the effort to get the criminal element, but he cannot support the bill if it is going to make a class 5 felon out of a 12-year old kid.   He also feels the discretion should be with the judge, and not the prosecutor. 

 

Senator Wettaw questioned if it was okay to steal up to a certain amount and wondered if there was a threshold being put on thievery. 

 

Senator Solomon stated that if there is an incident where someone is in a shopping mall, and goes from store to store picking up three items which total $100, that person is classified as a felon with a fine of up to $150 and may get five years in jail.  She asked if there would be any discretion on the part of the prosecutor to reduce that. 

 

Senator Spitzer said it is one thing to give discretion to judges, and another to give discretion to prosecutors.

 

Ms. Ahlmer stated that the bill is model legislation addressing the high incidents of crime, and while it may be only to a certain level, she could not express what the judgement call would be on the part of the prosecuting attorneys. 

 

The following were present in support of the bill:  Jerry Landau, Special Assistant, Maricopa County Attorney’s Office; John K. Mangum, representing the Arizona Food Marketing Alliance; and Eric Edwards, representing the Phoenix Police Department and Arizona Association of Chiefs of Police.

 

Shannon Slattery, Maricopa Public Defender’s Office, stated that nearly all the areas this bill intends to cover are covered in statute either at the same or higher penalty levels.  They are found under fraud statutes, forgery statutes and under shop lifting statutes.  She echoed Senator Rios’ concern about the class 5 felony for the new crime of a continuing criminal episode because there is no base limit and there is no cap.  Ms. Slattery said there should be a sliding scale to allow for greater penalties for greater offenses. She continued to site where the parts of the bill are redundant.  In answer to Senator Spitzer, she said she is not opposing the bill, but felt it may cause confusion within the code to duplicate statutes in place.

 

Senator Solomon said that in A.R.S. 13-1805 she said it is a class 4 felony, which would be reduced down to a class 5 felony.

 

Jerry Landau, Special Assistant, Maricopa County Attorney’s Office, stated the section in question is on page 2, lines 4 through 13, on the episodes.  The prosecutor would have a choice in this matter and could combine the incidents into a class 5 felony and prosecute, or has the choice to prosecute each one separately.  In response to Senator Spitzer, Mr. Landau, said under current law the thefts could be aggregated to reach the different classifications, or it can be filed separately.  He said depending on the value of the property stolen, it could rise to a higher level than a class 5 or it could be lower than a class 5 felony. He noted the theft statute and the shop lifting statutes do not have identical values to them.  It depends on the offense charged, and the value of the property.

 

Senator Spitzer asked for Mr. Landau’s view of the Rios amendment.  Mr. Landau replied that the County Attorney did not have an opinion on that.  He said it is a civil penalty based on shop lifting and is not a criminal penalty, and the County Attorney would not be involved in it.

 

Richard V. Jennings, President, Arizona Food Marketing Alliance,  was in support of the bill, but opposed to the amendment.

 

Senator Smith moved H.B. 2472 be returned with a DO PASS recommendation.

 

Senator Smith moved his 19-line amendment dated 3/3/00, 11:30 a.m. be ADOPTED.  The motion CARRIED by voice vote.  (Attachment F)

 

Senator Rios moved his three-line amendment dated 3/6/00, 2:00 p.m. be ADOPTED.  The motion CARRIED by voice vote.  (Attachment G)

 

Senator Smith moved H.B. 2472 be returned with an AS AMENDED, DO PASS recommendation.  The motion CARRIED with a roll call vote of 8-0-1.  (Attachment #17)

 

H.B. 2501 – justices of peace pro tempore – HELD

 

Senator Spitzer announced that H.B. 2501 would be HELD at the request of the sponsor.

 

 

 

H.B. 2497 – appropriation; juvenile detention centers – DO PASS

 

Mr. Pyper explained the bill is an emergency measure which appropriates $5.5million  from the State General Fund during the current fiscal year to the Administrative Office of the Courts (AOC) to fund juvenile detention centers.

 

Senator Solomon asked if this is the same as the bill the Governor vetoed last year.  Mr. Pyper replied it is in part; the Governor vetoed those aspects which were beyond the biennium, and those parts are now included.

 

Representative Jake Flake, sponsor of the bill, said this is the last major appropriation for what the Legislature agreed to do in juvenile detention centers. This money was built into the budget. He said it was vetoed last year because of the off-year budget.  Representative Flake stated that part of the appropriation will go to Yuma County, Apache County, Navajo County and Mohave County. 

 

Senator Spitzer noted the following were present in support of the bill: Ed Cook, Arizona Prosecuting Attorneys’ Advisory Council; George Diaz, Legislative Specialist, Arizona Supreme Court; Jerry Landau, Maricopa County Attorney’s Office;  Jolene Hefner, Deputy Director, Yuma County Juvenile Court; George Weisz, Executive Assistant, Governor’s Office; Mark Barnes, representing the County Supervisors Association; Brian Tassinari, representing Yuma County; and Frank Carmen, Division Director, Juvenile Justice, Administrative Office of the Courts.

 

Senator Smith moved H.B. 2497 be returned with a DO PASS recommendation. The motion CARRIED with a roll call vote of 8-0-1.  (Attachment #18)

 

H.B. 2527 – technical correction; workers compensation (now: department of public safety; appropriation) – DO PASS

 

Ms. Hoeffer explained the bill appropriates a total of $156,300 to the Department of Public Safety (DPS) from the criminal justice enhancement fund in FY 2000-2001 for personnel and operating expenses related to processing school bus driver licenses and firearm clearance applications. 

 

Senator Spitzer stated that Lt. Rick Knight, DPS; Sgt. Andy Swann, representing the Association Highway Patrolmen of Arizona: George Weisz, Executive Assistant, Governor’s Office; and Ed Wren, representing the Arizona Highway Patrol Association, were in support of the bill. 

 

Senator Smith moved H.B. 2527 be returned with a DO PASS recommendation.  The motion CARRIED with a roll call vote of 9-0-0. (Attachment #19)

 

H.B. 2698 – vehicle dealers; permits; technical correction (now: political committees) – DO PASS

 

Mr. Pyper explained the bill allows qualifying political committees to avoid having to file campaign finance reports with local reporting jurisdictions, if proper filing is made with the Secretary of State’s Office.

 

The following were in support of the bill:   Mike Collette, Community Horizons; Mike Petchel, Executive Director, Arizona Professional Police Officers Association; Chris Medrea, President, Professional Fire Fighters of Arizona; Tonia Garrett, Arizona Association of Counties; Jessica Funkhouser, State Elections Director, Secretary of State’s Office; and Karen Osborne, Maricopa County Elections Director.

 

Senator Smith moved H.B. 2698 be returned with a DO PASS recommendation. The motion CARRIED with a roll call vote of 9-0-0. (Attachment #20)

 

H.C.R. 2015 – ballot measures; apportioned signatures – HELD

 

Mr. Pyper explained  the bill refers to the ballot the question of whether the number of petition signatures required for the people to put a state or county measure on the ballot should be apportioned among the counties.  He said as indicated in the fact sheet, the requirements for the people, through initiative or referendum, to make a change to statute calls for a certain percentage of those who voted in the last gubernatorial election for an issue to be place on the ballot. Currently, that amount can be gathered from any area of the State; this resolution asks the voters to decide if all of the 15 counties would have to have their proportionate share of that amount represented on a petition in order for a ballot to be properly placed.

 

Senator Cummiskey asked Mr. Pyper if he thinks this bill makes it more or less difficult for petition signatures to be collected, as it relates to an initiative.  Mr. Pyper said this will require an effort to get a certain number of signatures from each and every county; whereas, currently, those collecting signatures would only need to approach a county large enough to meet the minimum requirements.  In that sense, it will make it more difficult.

 

Senator Cummiskey asked what the genesis of this idea was in the House. Mr. Pyper referred to the minutes of the discussion pertaining to this bill, and said that Representative McGibbon indicted it was an “out-county issue” and that voters in the rural counties feel left out of the initiative process.  Ms. Funkhouser had responded this would require an initiative to receive signatures from all 15 counties.  Representative Brotherton said he believed the bill was to give “out-county” people a voice in the process, although it could make it more difficult for grassroots groups to get an issue on the ballot.

 

Senator Cummiskey said he believes this is an assault on the constitutionally protected initiative process, and will make it more difficult for individuals to get things on the ballot.  He said he thinks the people in the out-counties have an opportunity to vote on each initiative. He said he does not think there are that many initiatives that are problematic.   This bill goes against the grain of what the Constitution envisioned, and for that reason, he will vote no.

 

Senator Spitzer stated there is a provision, if you are a candidate for State office, that requires the person to collect signatures in three counties.  He said he thinks the purpose is to compel the statewide candidates not to just focus on Maricopa County, but to campaign across the State. He said there is a precedent for the bill.

 

Senator Cummiskey said his point is that a candidate needs to stand and be recognized across the State, but with a proposition, each member of the State will have an opportunity to vote when it comes to the ballot.  He said he believes there are members of this Legislature who are concerned about the citizens’ ability to push initiative, and they want it curtailed.

 

Senator Solomon stated she can associate with the comments of Senator Cummiskey.  She is very concerned about making it more difficult to get an issue on the ballot. She asked if there had been an outcry from the rural counties indicating opposition to the current initiative process. She added this is tinkering with people’s constitutional rights.  Mr. Pyper responded that he had not heard of  any complaints. Senator Solomon said she had not one phone call from a member of a rural county

 

Senator Wettaw stated  he thinks it makes it easier to go to all parts of the State because the word is being spread about what is being accomplished by the initiative.

 

Senator Freestone said he cannot support the bill, although it has nothing to do with the number of petitions.  He said it concerns him to allow the people to vote on something that may not have been addressed by the Legislature. 

 

Senator Spitzer stated the comments of the members reflect that the bill does not have support to pass out of Committee, and that he is going to hold the bill.

 

Those present in support of the bill were: Jack H. Simon, Legislative Liaison, Arizona Wildlife Federation; Bart Turner, representing himself; Lisa Markkula, Animal Defense League of Arizona; Kyle Guzlas, Student, Prescott; Sandy Bahr, Sierra Club; and Jessica Funkhouser, State Election Director.

 

H.C. M. 2007 – National Voter Registration Act – DO PASS

 

Ms. Hicks stated the memorial makes a request to the United States federal government to amend the 1993 Voter Registration Act.

 

Senator Spitzer noted that Karen Osborne, Maricopa County Election Director, and Jessica Funkhouser, State Election Director, Secretary of State’s Office, were present in support of the bill.

 

Senator Smith moved H.C.M. 2007 be returned with a DO PASS recommendation.  The motion CARRIED with a roll call vote of 5-4-0.  (Attachment #21)

 

Senator Rios stated it is his understanding that this H.C.M. prohibits certain departments and institutions from asking people to vote.  Senator Spitzer clarified it is a memorial regarding the National Voter Registration Act, and the issue is that it is an unfunded mandate to the states from the federal government.  He is not sure the memorial is against the provisions as it is against the lack of funding. 

 

Senator Rios said he believes the memorial is against the act of asking people to register to vote repeatedly when they apply for services at such places as the Department of Economic Security.  Currently, they are asked each time they come in and must decline.  He said this memorial says the public does not have to be asked so many times; however, he believes that people should be encouraged to vote whenever possible.  He voted no.

 

Senator Solomon agreed with Senator Rios, and said that people, particularly those who are under-represented should be encouraged to vote, and she feels this sends the opposite message. She voted no.

 

Senator Spitzer said the memorial does not request the federal government to “gut” the Act, but merely says that the provision requiring the secretary of state to fund mailings to remove inactive voters from the registration list is burdensome.  It does not impact people registering or participating in voting.

 

H.C.R. 2027 – census awareness month – DO PASS AMENDED

 

Ms. Hoeffer said the resolution proclaims March, 2000, as Census Awareness Month. She explained the amendment corrects what Senator Spitzer termed an “amusing error.”  The amendment strikes the words “House of Representatives” and inserts “Legislature” on page 1, line 40, to indicate this is a concurrent resolution.

 

The following were in support of the bill:  Debra Krol, Project Specialist, Arizona Commission of Indian Affairs, and Delia Garcia Kim, Director, Census 2000, Secretary of State’s Office.

 

Senator Smith moved H.C.R. 2027 be returned with a DO PASS recommendation.

 

Senator Smith moved the two-line Spitzer amendment dated 3/6/00, 2:50 p.m. be ADOPTED. The motion CARRIED by voice vote. (Attachment H)

 

Senator Smith moved H.C.R. 2007 be returned with an AS AMENDED, DO PASS recommendation.  The motion CARRIED with a roll call vote of 9-0-0. (Attachment #22)

 

H.B. 2554 – lobbyists; gift ban; political subdivisions – DO PASS AMENDED

 

Mr. Pyper stated the bill limits what items principals and lobbyists may give to State officers and employees and alters lobbyists registration and expenditure reporting duties.

 

Mr. Pyper explained the two amendments.  The Spitzer 18-page amendment conforms this bill to S.B. 1436, which passed unopposed out of the Senate approximately two weeks ago.  The Solomon amendment eliminates speaking engagements from the list of exceptions to the gift ban. The two amendments are not compatible.  Senator Solomon’s amendment assumes the underlying bill will be successful, while the Spitzer amendment eliminates most of the provisions of the underlying bill.

 

Bart Turner, Executive Director, Valley Citizens League,  said that H.B. 2554 is a “horrible” bill with many flaws, which he discussed previously. He supports the Spitzer amendment to keep the bill alive so that it can be worked on to find resolutions before the end of session.

 

Senator Freestone said he is prepared to vote for this bill, because he is tired of the subject, and if this bill is the one that is going to finalize the gift ban, he will support it.  He stated the sponsors never show up, so he assumes they do not expect it to pass.

 

Senator Rios supported Senator Freestone, and said this is the third year that this bill has been heard.  He noted that one time, the bill was debated because he wanted zero tolerance, but everyone else thought they should be “reasonable.”  He asked how long this is to continue, and suggested sending the bill back to the House in its present form.

 

Senator Cummiskey stated his agreement, and said he has grown weary of the “political ping pong.” Every year everyone says they support reform, and at the end of the session, everyone has to explain why there is no reform.  He said he is tired of justifying it every year, and he is willing to support this bill.  He encouraged the members to send it back to the House as is, with Senator Solomon’s amendment, so the members will be sure to vote on it, and establish a real gift ban.

 

Senator Spitzer stated this is an interesting dilemma.

 

Senator Solomon stated she is also tired of this “ping pong,” and asked staff to draw up this amendment with the idea that this bill will go back to the House.  She is tired of being accused of wanting a bill with “loopholes” and if the House wants zero tolerance, she is ready to accept that.

 

Peter Solie, Executive Director, County Supervisors Association, stated the Spitzer amendment is very reasonable.  He said the original bill contains language which is “hard to live with.”  It requires that any person who lobbies a county board must register as a lobbyist and that puts a wall between the county board and the person who is before the board.  He gave examples of a group of neighbors choosing one neighbor to represent them, and said that one person would have to become a lobbyist and register as such.  A little league coach who would like a change in the park policy would have to register as a lobbyist.

 

Senator Spitzer said he does not disagree with anything that has been said, but it is his obligation as chairman to bring the best work product before the Committee, and he thinks his amendment reflects the most accurate rendition of the bill. 

 

Those present in opposition to the bill were: Mary Syracuse, Management Assistant, City of Phoenix; Becky Hill, Legislative Coordinator, League of Cities an Towns; and Steve Olson, Government Relations Director, City of Scottsdale.

 

Senator Smith moved H.B. 2554 be returned with a DO PASS recommendation.

 

Senator Smith moved the Spitzer 18-page amendment dated 3/6/00, 9:03 a.m. be ADOPTED.  The motion FAILED by voice vote.  (Attachment I)

 

Senator Solomon moved her five-line amendment dated 3/6/00, 3:00 p.m. be ADOPTED. The motion CARRIED by voice vote. (Attachment J)

 

Senator Smith moved H.B. 2554 be returned with an AS AMENDED, DO PASS recommendation. The motion CARRIED with a roll call vote of 6-2-1. (Attachment #23)

 

H.B. 2296 – precinct committeemen; supervisor vacancy – FAILED

 

Ms. Hicks explained the bill changes the method by which a vacancy on the county board of supervisors is filled to reflect the political party represented by the supervisor previously holding the position.  She explained the 18-line Freestone amendment makes the new method of filing supervisorial vacancies optional to the counties.

 

Peter Solie, Executive Director, County Supervisors Association, stated the counties’ opposition to this bill, and said it is an issue which should be decided by the county supervisors.  If precinct committeemen were to choose the person, that recommendation would not be covered by the media; it is the decision by the board of supervisors which is covered by the media, and in that context the board of supervisors is held accountable.

 

Senator Freestone said the board of supervisors used to organize the committees, which  helped them get through a difficult process.  He said the amendment makes it permissive so that those counties which do not want to follow the procedure do not have to.  He said he does not see the problem, and he feels this will get more people involved.  This allows the people some input into the appointment.

 

Mr. Solie said the Association has negotiated with the sponsor of the bill, and has polled its members, and they remain opposed to the amendment.

 

Senator Smith moved H.B. 2296 be returned with a DO PASS recommendation.

 

Senator Freestone moved his 18-line amendment dated 3/6/00, 11:47 a.m. be ADOPTED.  The motion CARRIED by voice vote.  (Attachment K)

 

Senator Smith moved H.B. 2296 be returned with an AS AMENDED, DO PASS recommendation.  The motion FAILED with a roll call vote of 4-4-1.  (Attachment #24)

 

Senator Spitzer thanked the Committee for covering so much ground in a short time.  He said there will be some executive nominations to be heard at one last meeting before this Committee is adjourned. 

 

There being no further business, the meeting was adjourned at 11:26 a.m.

 

                                                                        Respectfully submitted,

 

 

 

                                                                        Karen Neuberg

                                                                        Committee Secretary

 

(Tapes and attachments on file in the Secretary of the Senate’s Office/Resource Center, Room 113)

 

 

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                        Committee on Judiciary

            7          March 7, 2000

 

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