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Alaska Senate passes House version of SB 91 rollbacks, adjourns special session

  • Author: Nathaniel Herz
  • Updated: November 11, 2017
  • Published November 10, 2017

The Alaska State Capitol in January. (Marc Lester / Alaska Dispatch News)

The Alaska Senate passed the House's beefed up rollbacks of last year's criminal justice overhaul then adjourned its special session Friday — disregarding threats of a legal challenge and rejecting a pending tax proposal from Gov. Bill Walker without a vote.

Senators voted 11-8 to approve the House version of Senate Bill 54, which reverses major provisions of last year's overhaul, Senate Bill 91. Walker plans to sign the bill, a spokesman said.

All 11 "yes" votes were from current or former Republican majority members, while two other majority members joined four minority Democrats in voting "no." Republicans Mike Dunleavy of Wasilla and Shelley Hughes of Palmer, who both left the majority earlier this year, also voted "no."

Voting yes: Republican Sens. Click Bishop and Pete Kelly of Fairbanks; John Coghill of North Pole; Mia Costello, Cathy Giessel, Kevin Meyer and Natasha von Imhof of Anchorage; Anna MacKinnon of Eagle River; Peter Micciche of Soldotna; Bert Stedman of Sitka; and David Wilson of Wasilla.

Voting no: Democrats Tom Begich and Bill Wielechowski of Anchorage, Dennis Egan of Juneau, Donny Olson of Golovin and Lyman Hoffman of Bethel; and Republicans Mike Dunleavy of Wasilla, Shelley Hughes of Palmer and Gary Stevens of Kodiak.

The vote came in spite of a warning from the Legislature's own attorneys that that a key House amendment to the bill — one that sharply boosts penalties for first-time, low-level felonies — is unconstitutional.

Earlier in the day, a Senate committee heard from multiple attorneys who warned them that the legislation would invite a legal challenge and produce chaos in the state's criminal justice system.

But Senate President Pete Kelly, R-Fairbanks, in a rare floor speech, said the problem only jeopardizes one provision in the bill. He told his colleagues that they should vote for SB 54 to address what he characterized as Alaska's "crime wave." He warned that if they voted against the House bill and argued it was tougher on crime, "there is no place that you can hide, politically."

"There may be a constitutional issue, but it doesn't take the whole bill out," Kelly said. "We may win or we may lose a court fight on that."

The governor, in a prepared statement late Friday, praised SB 54, saying it "gives meaningful tools back to law enforcement and judges to keep Alaskans safe." But he added that the bill "contains some issues that must be further addressed by the Legislature."

And he said he was "deeply saddened" by the Senate's refusal to take up the tax bill.

Asked about the governor's statement, Senate Majority Leader Peter Micciche, R-Soldotna, responded: "Saddened?" He said in a phone interview that he thought face-to-face discussions involving Walker and House and Senate leaders would be more productive than tax bills that "seem to be disconnected from discussions that will actually result in a solution."

As for the crime bill, SB 54's problematic provision was inserted into the legislation by the House on Sunday, after an amendment from Eagle River Republican Rep. Lora Reinbold — one of the most strident SB 91 critics.

The amendment increased penalties for first-time, Class C felonies to a maximum of two years in prison, the same as they were before SB 91.

SB 91 had reduced those sentences — for crimes like car theft and threatening someone with a gun — to supervised probation.

The problem with Reinbold's amendment, as described by attorneys, is that it made sentences for first-time Class C felonies the same as for first-time Class B felonies.

And that raises concerns the provision could violate the state constitution's due process clause, which courts have interpreted to require sentences proportional to a crime's severity, the Legislature's chief attorney, Doug Gardner, wrote in a memorandum to Sen. John Coghill, R-North Pole.

If the provision is challenged, the likely result is that the courts would revert to the previous sentencing scheme of probation without jail time, John Skidmore, head of the Alaska Department of Law's criminal division, wrote in a memo to Attorney General Jahna Lindemuth.

And a lawsuit is all but certain, according to a statement issued after Friday's vote by the American Civil Liberties Union of Alaska.

"The Senate was told by the ACLU of Alaska, the administration, and their own lawyers that this bill violates Alaskans' constitutional due process rights," wrote spokesman Casey Reynolds. "The fact that they are okay with trading our rights and freedom for political cover is exactly why so many Americans have come to hate government. It is also why the ACLU exists. We'll see them in court."

The Senate is known for being the more cautious and deliberative of Alaska's two legislative chambers. But after Friday afternoon's vote, it was House leaders criticizing the Senate for its unwillingness to take the time to fix the potential problem with SB 54, and its refusal to take up the tax bill.

Senators held a single hearing on the House version of the legislation Friday, then approved it in what was only their fourth full floor session during the three-week special session. (The three others were Wednesday, Thursday and Oct. 23, the session's first day.)

SB 54's constitutional problem could have been fixed as soon as Monday in a House-Senate conference committee, by reverting the Class C felony provision to the Senate's initial version of the legislation, House Speaker Bryce Edgmon, D-Dillingham, said in a phone interview.

That version still toughened penalties for first-time Class C felonies. But it capped them at a year in prison, rather than the House's proposal of two years.

Edgmon, in an unusually strongly worded statement, called the Senate's vote "an abdication of their responsibilities."

"They allowed a constitutionally flawed bill to be sent to the governor and they worsened the ongoing recession and fiscal crisis by refusing to even consider a new revenue proposal," Edgmon said. "We can force the Senate back to Juneau but apparently we, and the governor, can't actually make them work."

The House is still technically convened in the special session, with its next floor session scheduled for Monday. But Edgmon said his chamber appears to have no choice but to adjourn as well.

Coghill, the North Pole Republican senator, said part of the problem for his chamber was that House members left Juneau for the weekend and weren't going to return until Monday.

The Senate, Coghill added, was willing to work over the weekend. But keeping members in Juneau past Tuesday would have been difficult, "since we live in a world where a lot of people have other work."

Coghill was the original sponsor of SB 91. But in the end, he sided with Senate leadership in voting for the House version of SB 54, which reversed a big chunk of that overhaul —  an initiative that Coghill and his staff worked on for years.

Before the vote, Coghill said, he tried "everything I knew how to do" to convince his colleagues to stay in town and fix the problem in a conference committee with the House.

"Anyway, I failed," Coghill said. He added: "It was the crappiest vote that I've taken in a long time."

Correction: The story originally misstated the number of floor sessions the Alaska Senate held before adjourning from the special session. It was four, not three. The story also originally identified Shelley Hughes and Mike Dunleavy as members of the Senate majority; they both left the majority earlier this year.

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