ARIZONA HOUSE OF REPRESENTATIVES
Forty-seventh Legislature – Second Regular Session
Minutes of Meeting
House Hearing Room 4 -- 8:30 a.m.
Chairman Farnsworth called the meeting to order at 8:35 a.m. and attendance was noted by the secretary.
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Mr. Barnes |
Mr. Miranda B |
Mr. Yarbrough |
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Mr. Downing |
Mr. Paton |
Mrs. Barto, Vice-Chairman |
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Mr. Gallardo |
Mr. Quelland |
Mr. Farnsworth, Chairman |
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None |
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S.B. 1049 – DPA S/E (6-0-1-2) S.B. 1164 – DPA S/E (4-3-0-2) S.B. 1294 – S.B. 1430 – DPA (6-2-0-1) S.B. 1048 – DP (5-0-1-3) S.B. 1301 – DPA (8-0-0-1) S.B. 1396 – DPA (9-0-0-0) S.B. 1471 – DP (9-0-0-0) S.B. 1339 – DP (7-1-1-0) |
S.C.R. 1033 – DP (8-0-0-1) S.B. 1036 – DPA S/E (5-0-1-3) S.B. 1370 – DP (7-0-0-2) S.B. 1099 – DP (7-0-0-2) S.B. 1146 – DP (7-2-0-0) S.B. 1444 – DPA S/E (6-1-1-1) S.B. 1374 – S.B. 1557 – DP (8-0-0-1) S.B. 1374 – DPA (8-0-0-1) On Recon. |
Kitty Decker, Majority Research Analyst, Committee on Ways and Means
Chad Nitsch, Assistant Majority Research Analyst, Committee on Appropriations B
Dan Brown, Assistant Majority Research Analyst, Committee on Human Services
Patricia Ballentine, representing herself
Herschella Horton, Chief, Legislative Services, Department of Economic Security (DES)
Leona Hodges, Assistant Director, Division of Child Support Enforcement
Stan O’Dell, Child Support Enforcement Section, Attorney General’s Office
Yolanda Sanchez, representing herself
Kim Gillespie, Child Support Enforcement Section, Attorney General’s Office
Senator Karen Johnson, sponsor
Jerry Landau, Legislative Liaison, Administrative Office of the Courts (AOC), Arizona Supreme Court
Robin Scoins, Director, Arizona Family Rights Advocacy Institute
Amanda Tuitavuki, representing herself
Michelle Marro, representing herself
Amy Love, Legislative Intern, Arizona Judicial Council
Janice Michens, Program Administrator, Child Protective Services (CPS)
Madelyn Leeds, representing herself
Debra Brimhall, representing herself
Beth Rosenberg, Children’s Action Alliance
Ralene Whitmer, Assistant Majority Research Analyst
Senator John Huppenthal, sponsor
Jan Forst, Majority Intern
Barbara Hernandez, representing herself
Senator Ken Bennett, Senate President, sponsor
David Selden, Chairman, Employee Relations Committee, Arizona Chamber of Commerce
Senator Thayer Verschoor, sponsor
Bridget Manock, Government Relations Director, City of Scottsdale
Paul Porell, Traffic Engineering Director, City of Scottsdale
Timothy La Sota, Special Assistant County Attorney, Maricopa County Attorney’s Office
Senator Barbara Leff, sponsor
Kevin O’Malley, representing Home Builders Association of Central Arizona
Spencer Kamps, Deputy Director, Home Builders Association of Central Arizona
Barry Aarons, representing Construction Trades Coalition
Mark Giebelhaus, representing himself
Janice Burnett, Executive Director, American Council of Engineering Companies of Arizona
Dave Eberhart, representing American Council of Engineering Companies of Arizona
Karen Osborne, Elections Director, Maricopa County
Brad Nelson, President, Election Officials of Arizona
Don Gutenkauf, representing himself
Carolyn Maxon, representing herself
Carol Corsica, representing herself
Michael Shelby, Arizona Citizens for Election Reform
Senator Jack Harper
Senator Paula Aboud
Names of persons who did not speak (pages 3, 5, 14, 15, 16, 17, 18, 19, 20, 21, 22, 24, 26, 29, 33 and 34)
CONSIDERATION OF BILLS:
S.B. 1049, bailable offenses; bond source hearings
S/E: tax rates; limit – DO PASS AMENDED S/E
Vice-Chairman Barto moved that S.B. 1049 do pass.
Vice-Chairman Barto moved that the Farnsworth seven-page strike-everything amendment dated 3/28/06 to S.B. 1049 be adopted (Attachment 1).
Kitty Decker, Majority
Research Analyst, Committee on Ways and Means, stated that S.B. 1049 deals
with the primary tax rate for municipalities, counties and community colleges
(Attachment 2). Additionally, it deals with secondary tax rates for flood
control districts, library districts and fire districts. The provisions of the
bill are:
· Prohibits municipalities, counties and community colleges from raising their primary tax rate by more than one-half of the percentage increase in their net assessed value from the previous year.
· Prohibits flood control districts, library districts and fire districts from raising their (secondary) tax rate by more than one-half of the percentage increase in their net assessed value from the previous year.
Vice-Chairman Barto moved that the Farnsworth nine-line amendment dated 3/29/06 to the Farnsworth seven-page strike-everything amendment be adopted (Attachment 3).
Ms. Decker explained the Farnsworth nine-line amendment dated 3/29/06 to the Farnsworth seven-page strike-everything amendment clarifies that the tax rate would have to come down as the net assessed value increases (Attachment 3).
Question was called for on Vice-Chairman Barto’s motion that the Farnsworth nine-line amendment dated 3/29/06 to the Farnsworth seven-page strike-everything amendment be adopted (Attachment 3). The motion carried.
Vice-Chairman Barto moved that the Farnsworth seven-page strike-everything amendment dated 3/28/06 as amended be adopted (Attachment 1). The motion carried.
Vice-Chairman Barto moved that S.B. 1049 as amended do pass.
Person in support of S.B. 1049 who did not speak:
Joy Gomez, representing self
Persons in opposition to S.B. 1049 who did not speak:
Mark Barnes, representing Pinal County Board of Supervisors
Tom Belshe, Member Services Director, League of Arizona Cities & Towns
John Wayne Gonzales, Legislative Liaison, City of Phoenix
Bridget Manock, Government Relations Director, City of Scottsdale
Question was called for on Vice-Chairman Barto’s motion that S.B. 1049 as amended do pass. The motion carried by a roll call vote of 6-0-1-2 (Attachment 4).
S.B. 1164, aggravated assault; suffocation and strangulation
S/E: displaced pupils choice grants program – DO PASS AMENDED S/E
Vice-Chairman Barto moved that S.B. 1164 do pass.
Vice-Chairman Barto moved the Farnsworth four-page strike-everything amendment dated 3/28/06 to S.B. 1164 be adopted (Attachment 5).
Chad Nitsch, Assistant Majority Research Analyst, Committee on Appropriations B, advised the Farnsworth four-page strike-everything amendment dated 3/28/06 to S.B. 1164 establishes the Displaced Pupils Choice Grant Program (Program) to allow a pupil to apply for and receive a grant for redemption at a grant school (Attachment 6). The grant must be applied towards tuition and fees for the educational and related services provided by the grant school. Additionally, the bill establishes grant and grant school eligibility, admission and application criteria, and the Displaced Pupils Choice Grant Fund (Fund). The provisions of the bill are:
· Defines the terms custodian, grant, grant school and qualifying pupil.
· Establishes the Program that allows a custodian to apply for and receive a grant for redemption at any grant school. The grant must be applied towards tuition and fees for the educational and related services provided by the grant school.
· Declares that the grants constitute grants of aid to children through their custodian, and not as grants of aid to the grant school. Additionally, the grants do not constitute taxable income to the custodian or child.
· Prohibits a child from receiving a grant for any part of a school year that the child attends a private school that does not redeem grants.
· Declares that a custodian is free to choose any grant school for the pupil, and that selection shall not be deemed a decision by the State or any of its political subdivisions.
· Establishes eligibility criteria for a grant.
· States that a pupil who received a grant in the prior school year shall continue to receive the grant if the pupil completed all necessary coursework to be promoted to at least the next grade level in the grant school, the pupil is in good academic standing with the grant school and the custodian completes all applications required by the grant school and the Arizona Department of Education (ADE).
· Allows private schools, whether secular or sectarian, to annually decide to participate in the Program. A school that wishes to participate must complete all applications with the ADE by February 15 of the year prior to accepting grants.
· Allows a private school to charge the pupil an amount above the grant value that represents the difference between the grant and the tuition and fees. Private schools must use the grant proceeds solely to provide educational goods, services and facilities and are not eligible to receive any monies above what is customarily charged for tuition and fees.
· Provides limitations on the regulation of private schools.
· Establishes a grant value of the lesser of $5,000 or the total amount of tuition and fees charged by the school.
· Requires the ADE to issue the grant to the custodian immediately upon receipt of proof of the pupil’s enrollment in a grant school. The custodian must restrictively endorse and surrender the grant for use by the grant school. The grant school must immediately credit the pupil’s account for payment of tuition and fees.
· Establishes the Fund. The ADE must administer the Fund, and monies are exempt from lapsing and are continuously appropriated.
· Contains a delayed repeal of June 20, 2011.
Person in support of S.B. 1164 who did not speak:
Ron Johnson, Executive Director, Arizona Catholic Conference
Persons in opposition to S.B. 1164 who did not speak:
Charles Essigs, Assistant Superintendent, Arizona Association of School Business Officials
Sam Polito, representing Tucson Area School Districts
Question was called for on Vice-Chairman Barto’s motion that the Farnsworth four-page strike-everything amendment dated 3/28/06 be adopted (Attachment 5). The motion carried.
Vice-Chairman Barto moved that S.B. 1164 as amended do pass. The motion carried by a roll call vote of 4-3-0-2 (Attachment 7).
S.B. 1294, child support;
collection – DO PASS FAILED
Vice-Chairman Barto moved that S.B. 1294 do pass.
Dan Brown, Assistant Majority Research Analyst, Committee on Human Services, allows persons ordered to pay child support the ability to petition the court for termination of the support order if they believe they were incorrectly determined to be the biological father (Attachment 8). The bill eliminates the expiration date on unpaid child support that is not reduced to a written money judgment within three years of emancipation of the last child in the support order. The provisions of the bill are:
· Allows a person who has been ordered to pay child support to petition to have the court terminate the support obligation if the court finds clear and convincing evidence that paternity was established by fraud, duress or material mistake of fact.
· Mandates existing support obligations continue unless the court has ruled in favor of the petitioner.
· Requires the court to order genetic testing and other appropriate tests to determine the child’s blood and tissue type.
· Stipulates that if the petitioner is not the biological father, the court shall vacate the determination of paternity and terminate the support obligation.
· Specifies that unless ordered by the court, the court’s ruling does not apply to arrearages or other amounts previously ordered by the court.
· Permits the court to order restitution be paid by the biological father to the petitioner if it is determined to be in the best interest of the child.
· Eliminates the statute that limits the validity of unpaid child support judgments to three years after the emancipation of the last child included in the support order, unless the order has been reduced to a written money judgment or a request has been filed requesting a written money judgment within three years.
· Strikes the exemptions to the three year expiration date for unpaid child support judgments.
· Eliminates the statute allowing DES or another party entitled to child support to seek a judgment for all unpaid child support arrearages, and have formal written judgments exempt from renewal and enforceable until paid in full for only three years after emancipation of the last child included in the support order.
· Allows DES or another party entitled to child support to file a request for a written judgment for arrearages to be exempt from renewal and enforceable until paid in full.
Vice-Chairman Barto moved that the Farnsworth two-page amendment dated 3/27/06 be adopted (Attachment 9).
Mr. Brown explained that the Farnsworth two-page amendment dated 3/27/06 removes the changes pertaining to the expiration date of unpaid child support (Attachment 9). It also removes the provision requiring a person found not to be a biological father to pay child support arrearages and the provision allowing for restitution to be ordered.
Patricia Ballentine, representing herself, testified in support of S.B. 1294. She said she has an issue with the statute as it now stands because it rewards deadbeat parents. She revealed that she has never received child support since her divorce in 1983. The total amount of child support in arrears is $116,000. She advised her ex-husband had gone to five different states, trying to elude garnishment of wages. Current statute proves that if a person hides long enough, the parent will never have to pay any money due. She pleaded with Members to support this bill and eliminate the statute of limitations on child support judgments.
Herschella Horton, Chief, Legislative Services, Department of Economic Security (DES), advised that the Department supports S.B. 1294 but has concerns with the amendment. DES strongly believes that a parent should not be allowed to get out of paying child support simply because the person is successful in hiding out. The amendment returns the language to current law. The fundamental purpose of S.B. 1294 was to eliminate that statute of limitations on the enforceability of unpaid child support. The amendment rewards a father who hides out. She asked that Members support the underlying bill but not the amendment.
Mr. Downing asked DES’ position if the amendment is carried. If the amendment passes, Ms. Horton replied that DES would be unable to collect child support after a certain period of time from a deadbeat parent.
Vice-Chairman Barto assumed the Chair at 9:50 a.m.
Leona Hodges, Assistant Director, Division of Child Support Enforcement, advised that the amendment takes the language back to its original version in statute now, which is three years from the date of emancipation unless the custodial parent or the State takes the court order back to court and serves the non-custodial parent.
Mr. Miranda raised concerns relating to the best interests of the child if the father who raised the child finds out he is not the biological father as well as the provision that he can terminate his parental responsibilities.
Stan O’Dell, Child Support Enforcement Section, Attorney General’s Office, explained that case law exists where the court needs to look at the best interests of the child if there is a question about whether the individual is the biological father and a paternity order exists. The proposed language requires genetic testing as well as allowing the court to determine whether to overturn the paternity order. The best interest of the child analysis that is currently in place gets lost with this language. The primary purpose of S.B. 1294 is to eliminate the statute of limitations. The amendment would undue what S.B. 1294 is attempting to do; however, there would still be the paternity issue to address.
Mr. Miranda said he agrees with the elimination of the statute of limitations but has concerns with the provision of the best interests of the child. He asked what the AG’s position is. Mr. O’Dell answered that the AG’s position is that the best interests of the child should be considered before the court orders genetic testing.
Mr. Barnes opined that once time goes by, it is unlikely that child support will be collected. Mr. O’Dell said the reality is that the AG would be able to collect significant amounts of money should this bill pass. Mr. Barnes asked the chances of recovery and the amount that will be collected. Mr. O’Dell said he does not have a number in terms of statistics but frequently the AG is able to recover large sums of money.
Mr. Barnes asked whether anyone from the Department of Economic Security can tell Members the anticipated percentage of recovery should this bill pass. Ms. Hodges said she does not have that number; however, the annual cost to the taxpayers to take these cases before the court is over $6 million to ensure that the judgment is preserved so DES can collect on these cases. Mr. Barnes declared that he is not getting an answer to his question. He said that if this program was that great, figures would be available on how much money could be recovered.
Mr. Yarbrough commented that there is a significant underlying problem with the bill as drafted. The proposed bill allows an individual under a court order to go back and seek restitution for child support if he is found not to be the biological father. He pointed out that current law allows judgments to be renewed. If the statute of limitations is removed, a person’s estate can be liable for a 30 or 40 year old child support order. He submitted that without the amendment, the bill is flawed and should fail.
Yolanda Sanchez, representing herself, testified as neutral on S.B. 1294. She said the bill will lengthen the time for a mother to collect child support. She maintained that it is not fair for one parent to assume all the obligations of raising children.
Kim Gillespie, Child Support Enforcement Section, Attorney General’s Office, pointed out that under the statute of limitations, there is an equitable defense for fathers who do not pay. That person could argue that there has been such a long passage of time without any attempt to collect that it cannot be collected.
Question was called for on Vice-Chairman Barto’s motion that the Farnsworth two-page amendment dated 3/27/06 be adopted (Attachment 9). Division was called and by a voice vote of 3 ayes and 4 nays, the amendment failed.
Question was called for on the Vice-Chairman Barto’s motion that S.B. 1294 do pass. The motion failed by a roll call vote of 3-5-0-1 (Attachment 10).
S.B. 1430, children; CPS – DO PASS AMENDED
Mr. Yarbrough moved that S.B. 1430 do pass.
Dan Brown, Assistant Majority Research Analyst, Committee on Human Services, stated that S.B. 1430 makes changes to the Child Protective Services’ (CPS) statutes and creates the Family Advocacy Council (FAC) and Family Advocacy Office (FAO) (Attachment 11). The provisions of the bill are:
· Restates the limitation of authority and duty to inform of CPS workers by:
· Eliminating the requirement to provide information outlining parental rights in writing.
· Adding that the person under investigation is not required to allow the CPS worker to enter the dwelling.
· Requiring that the CPS worker make all reasonable efforts to inform the person under investigation of their rights, and of the limitation of authority placed on CPS, before the child is removed from the home.
· Mandating that DES has the burden of proof that the CPS worker informed the person under investigation as he or she was required to.
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· Requires DES to provide access to CPS information to the FAC and the staff of the FAO if the information is reasonably necessary for the persons to perform their official duties, and restricts the information from being further disclosed.
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· Changes the composition of Removal Review Team (RRT) to include:
· A CPS worker or the worker’s supervisor.
· Two members of the Foster Care Review Board, at least one of whom is from the local district.
· Mandates that the RRT not meet unless two members of the Foster Care Review Board are present.
· Requires the written notice to a parent of a child taken into temporary custody to include information that a RRT will be meeting to review the removal, and the date and time of that meeting.
· Changes the standard of evidence in a termination adjudication hearing from “clear and convincing” to “beyond a reasonable doubt.”
· Changes the standard of evidence in a dependency adjudication hearing from “a preponderance of the evidence” to “clear and convincing evidence.”
· Creates the Family Advocacy Council (FAC).
· Stipulates that members of the FAC are not eligible to receive compensation, but can be reimbursed for expenses with the exceptions of the members of the House and Senate and the family law judge.
· Specifies members of the FAC serve at the pleasure of those who appointed them.
· Indicates the duties of the FAC are as follows:
· Select a chairperson from its voting membership annually at the first meeting.
· Meet at least four times a year at the call of the chairperson.
· Serve as a resource to families affected by actions taken by CPS.
· Review CPS cases and files on their own motion or on request of any legislator.
· Advocate on behalf of any parent the FAC believes is in need of advocacy.
· Submit an annual report of actions and any recommendations for improvements to the CPS system on or before December 1st to the Governor, President of the Senate, and Speaker of the House.
· Allows members of the FAC to excuse themselves from participating in advocacy activities.
· Exempts members of the FAC from criminal or civil liability for good faith actions taken in connection with their responsibilities.
· Creates the FAO.
· Stipulates the duties of the FAO are as follows:
· Offer staff support to the FAC.
· Assist the FAC in conducting research and collecting data relating to the CPS system.
· Provide other necessary services to the FAC.
· Specifies the FAC shall appoint an executive director of the FAO who serves at the pleasure of the FAC.
· Indicates the characteristics and duties of the executive director of the FAO as follows:
· Eligible to receive compensation set by the FAC within the range specified in statute.
· May employ and terminate employees or contract for special services as necessary to carry out the responsibilities of the FAC and FAO.
· Prepare minutes, records, reports, and record all FAC actions.
· Enter into contracts to procure goods and services necessary to carry out the duties, policies, and directions of the FAC and FAO.
· Repeals the FAC and FAO on July 1, 2016.
· Indicates the purpose of the creation of the FAC and FAO is to serve as a resource and advocate for families affected by actions taken by DES related to CPS.
· Delays the effective date to December 31, 2006.
Mr. Yarbrough moved that the Farnsworth 10-line amendment dated 3/28/06 be adopted (Attachment 12).
Mr. Brown explained that the Farnsworth 10-line amendment dated 3/28/06 appropriates $125,000 from the General Fund to the Family Advocacy Council (Attachment 12).
Question was called for on Mr. Yarbrough’s motion that the Farnsworth 10-line amendment dated 3/28/06 be adopted (Attachment 12). The motion carried.
Mr. Yarbrough moved that the Yarbrough 14-line amendment dated 3/29/06 be adopted (Attachment 13).
Mr. Brown explained that the Yarbrough 14-line amendment dated 3/29/06 eliminates the provision restricting the Removal Review Team meeting without two members of the Foster Care Review Board present and instead requires the RRT to consult with an employee of the Family Advocacy Office (Attachment 13). The amendment also removes the family law judge, the court-appointed special advocate and the member of the Foster Care Review Board from the Family Advocacy Council and adds guardian ad litem and public member.
Mr. Barnes queried why the CPS members are being taken off the Board. He wondered whether it is because they have not been showing up. Mr. Yarbrough answered that the Foster Care Review people are volunteers and the requirement to have two of them present is not always feasible. Mr. Barnes asked about problems in the past. Mr. Yarbrough said he is not aware of intentional problems, but he is aware of problems.
Senator Karen Johnson, sponsor, advised that hearings were begun in June, 2005 because so many families had problems with CPS regarding removal of children. Because of that, it was felt that legislation was needed to address some of the issues that these families had encountered in their dealings with CPS. Testimony clearly disclosed the need for an independent advocacy entity that is not associated with DES or CPS to help parents and grandparents who experience problems with CPS. She maintained that raising the standard of proof will provide accountability to the entire CPS system. She advised there are 10,000 children in foster care, yet only eight percent of the reports were substantiated, and that clearly shows the need to raise the levels of proof. That the mere word of a caseworker is the only actual proof needed to remove a child from the home and place the child in foster care is alarming to her. She said evidence was heard in the hearings of some caseworkers misrepresenting information and making false reports to show a parent negatively before the court, rather than conduct actual investigations and report the facts supported by evidence. She pointed out that the majority of caseworkers are wonderful dedicated workers; however, there are a few “bad apples” who cause a lot of problems, and it appears that CPS is not taking the proper disciplinary action against these people. She stated that raising the standard proof to the same level that the federal government mandates on the Indian communities is what this legislation attempts to do. It will not affect the risk of harm to children in their homes but could remove the risk of harm to children who are sometimes placed in certain foster homes or group homes. She related that once a child is removed from the home, there is no way to reverse that decision or any way to take away the damage done to the child who is wrongfully removed. She advised there have been over 47 notices of claims filed over the past year and plans to file lawsuits against the State for wrongdoing by CPS in over 100 other cases. She provided information to Members (Attachment 14).
Mr. Gallardo asked about the potential of putting children at risk if the parents could not be located since they have to be notified. Senator Johnson responded that is one of the issues that was discussed. An honest effort must be made to contact the parents; however, if that is not possible, CPS can proceed if they cannot locate the parents.
Mr. Gallardo queried whether this bill compromises any kind of investigation between law enforcement and Child Protective Services. Senator Johnson understands this proposal will not affect that joint operation.
Mr. Yarbrough asked whether the clear and convincing evidence standard is the same standard that the federal government applies under the Indian Child Welfare Act. Ms. Johnson replied in the affirmative.
Mr. Paton asked whether there is a point system for removal of a child by CPS. Senator Johnson said she is not aware of that.
Mr. Downing questioned the training of the members of the proposed oversight committee. Senator Johnson said they will go through Foster Care Review training. She hopes they will all have expertise in these issues.
Mr. Downing raised the liability issue. He noted these individuals will have access to confidential information. Senator Johnson advised they would have to sign confidentiality agreements. Mr. Downing asked whether any of these people would have a State attorney represent them if they get sued for revealing information.
Jerry Landau, Legislative Liaison, Administrative Office of the Courts (AOC), Arizona Supreme Court, said he did not focus on that issue. The Court’s focus was on responsibilities placed on court volunteers and judges. He opined that since these are State-created councils and boards, a member of the Attorney General’s Office may be assigned to them. He said that information can be secured.
Chairman Farnsworth resumed the Chair at 9:40 a.m.
Robin Scoins, Director,
Arizona Family Rights Advocacy Institute, testified in support of
S.B. 1430. She said the intent of this legislation is to have all families
treated fairly. The Indian families are given a higher standard and are
protected by federal law. She advised that many of the children taken from
their homes are considered to be neglected because of poverty. She stated that
poverty is not neglect and removing the child will not help the family
situation to improve. This legislation asks for an actual basis for removing a
child from his home, such as imminent proof of danger. A handout was
distributed on the Institute’s recommendations regarding CPS issues (Attachment
15).
Mr. Downing asked whether there is any proof that the primary cause for removal is based on poverty. Ms. Scoins replied that of all the cases CPS reports, 80 percent are due to neglect, and those neglect cases are often blamed on poverty. People who are poor and live in poor conditions are termed “negligent.”
Amanda Tuitavuki, representing herself, spoke in opposition to S.B. 1430. She believes this legislation will have unintended consequences that could be very significant. She said the bill will increase the burden of proof for termination of parental rights. It adds additional layers of bureaucracy for CPS workers. The CPS system is currently overloaded and this bill will affect caseworkers’ availability and dedication to serve the children that are being threatened by abuse and neglect. She urged Members to vote against this bill.
Mr. Miranda queried whether it would help to provide more resources to CPS. Ms. Tuitavuki declared that she does not think this bill is the solution to the problems.
Michelle Marro, representing herself, stated support of S.B. 1430. She advised that no reasonable effort was made to reunite her son with his family. She related that she was never offered any services by CPS. She said she thinks if services had been provided in the beginning of her case, things would not have gotten so bad. She revealed that she cannot see or talk to her son because he is now living in Massachusetts. He lives with a family that has a lot of stress because the family has additional children.
Amy Love, Legislative Intern, Arizona Judicial Council, stated the Council is neutral on this bill with the amendment. The Council had concerns because of the utilization of volunteers as well as conflicts with the Advisory Council members. She noted that the amendment addresses the issues. The other area of concern relates to the two Foster Care Review members having to be present. It is not always possible for some of the people who are volunteers to take off from work, especially on short notice.
Herschella Horton, Chief, Legislative Services, Department of Economic Security (DES), testified in opposition to S.B. 1430. She stated that this bill compromises a child’s safety. It mandates that CPS give parents notice of removal and their rights. Sometimes, parents cannot be found and that can put children at risk. She said she does not see a definition of reasonable efforts or reasonable rights in the bill. She related that if a child is in danger and the caseworker cannot find the parents, efforts are made to remove the danger and not the child; however, the danger cannot always be removed and when it cannot, the child must be removed. She pointed out that parents can abscond with the child if the parents are notified ahead of time. Another concern with notifying the parents ahead of time is that the parents could coach the child. She noted that children continue to love their parents even though they are abused. The bill requires CPS to notify parents at the time of removal when a review will occur, but caseworkers do not know when that review will be scheduled. She maintained that this proposal will leave a child in an unsafe environment.
Mr. Paton asked what a safety assessment is. Ms. Horton replied it is a written tool that CPS uses so there is consistency in gauging how safe it is to leave the child in the home. She can provide a copy of the safety assessment. Mr. Paton queried whether there is a point system in using that safety assessment. Ms. Horton replied in the negative.
Mr. Paton questioned the kinds of factors that go into establishing the safety assessment.
Janice Michens, Program Administrator, Child Protective Services (CPS), testified that there are a number of factors that CPS looks at in terms of the prior history of abuse or neglect with the family, substance abuse issues and how those might impact the safety of the child, injuries the child has, ability of the parent to provide a protective environment, etc. CPS also looks at whether there are strengths in the family that will mitigate some of those factors.
Mr. Paton queried whether there is scoring when the safety assessment is made. Ms. Michens answered there are a number of safety factors CPS looks at. If one of those safety factors is identified as unsafe, CPS has to develop a safety plan. In developing that plan, CPS looks at what needs to be in place to safely allow that child to remain at home. Mr. Paton asked whether poverty could be one of those factors. Ms. Michens related that a number of families that get reported to CPS are low income; however, that is not one of the factors. She said neglect is a factor and it has to be shown that neglect caused a substantial risk to the child.
In reply to Mr. Miranda, Ms. Michens related that the Family Advocacy Office has one full-time person staffing that office who is extremely busy. If additional responsibilities are added, an additional staff person will probably be needed. The office receives over 200 calls a month.
Mr. Miranda questioned the rationale for raising the burden of proof for removal. Ms. Michens explained that the rationale for the Indian Child Welfare Act was because there was a history of Native American children being removed from their homes without the tribe or a relative having the opportunity to participate in getting the child back.
Mr. Gallardo asked how this proposal would compromise the joint CPS/law enforcement investigation. Ms. Michens said she believes it will compromise an investigation.
Mr. Gallardo noted that under this bill CPS or law enforcement would not be able to do anything until the parent is notified. Ms. Michens pointed out the bill contains no definition of reasonable effort. The bill requires that parents be notified before an investigation, giving parents the opportunity to coach the child.
Madelyn Leeds, representing herself, expressed support of S.B. 1430. She advised that when CPS goes to a home, parents or grandparents are not given any information. She said her granddaughter was taken from the home last year because of abandonment and neglect. She was placed in foster care where she received a fracture to her skull. CPS investigated and put the child back with the foster family even though she had gotten hurt while in that foster home. She maintained that the bill is vital to the safety of children. She is asking that all children be treated according to the standard set for Native American children. Under federal law, there has to be proof. She is asking that all children be on the same level playing field. She urged Members to vote for this bill.
Debra Brimhall, representing herself, testified in support of S.B. 1430. She said the main challenge here is integrity, and currently there is an integrity problem with the CPS system. CPS workers have the power to do whatever they want. She advised that money is not the solution. Money has been increased by the Legislature over the years, yet there has not been increased protection and safety for children.
Beth Rosenberg, Children’s Action Alliance, testified against S.B. 1430. Even with the large number of reports that come into CPS every year, there are few complaints. She said she has concerns about notifying parents prior to removal of a child because there are no exceptions in the bill as to when that should happen. Current law is a reasonable way to go. Another concern is raising the standard of proof. She advised that the Supreme Court has established that clear and convincing evidence is the standard of proof for termination of parental rights, and that is the standard of proof in all the states in the country. If the standard is raised, it will prolong the time children spend in foster care. She related there are a number of oversight bodies that review what CPS does, as well as a number of avenues open to parents in terms of what happens to children in care. She asked Members to oppose this legislation.
Question was called for on Mr. Yarbrough’s motion that the Yarbrough 14-line amendment dated 3/29/06 be adopted (Attachment 13). The motion carried.
Vice-Chairman Barto moved that S.B. 1430 as amended do pass.
Persons in support of S.B. 1430 who did not speak:
Walt Plunkett, representing self
Tracey Plunkett, representing self
Brad Kennedy, representing self
Susan Marrow, representing self
Bob Hanks, representing self
Persons in opposition to S.B. 1430 who did not speak:
Christine Scarpati, CEO, Child Crisis Center, East Valley
Chris Aamodt, representing self
Timothy Schmaltz, Coordinator, Protecting Arizona’s Family Coalition
Gabe Zimmerman, representing self
Tierney Popp, representing self
Jana Bertucci, representing self
Steve Twist, representing self
Dale Wiebusch, Director of Systems Advocacy, Arizona Coalition Against Domestic Violence
Question was called for on Mr. Yarbrough’s motion that S.B. 1430 as amended do pass. The motion carried by a roll call vote of 6-2-0-1 (Attachment 16).
S.B. 1048, serious drug offenses; definition – DO PASS
Vice-Chairman Barto moved that S.B. 1048 do pass.
Ralene Whitmer, Assistant Majority Research Analyst, stated that S.B. 1048 includes the attempt or conspiracy to commit a violation of various drug offenses as a serious drug offense (Attachment 17). The provisions of the bill are:
· Modifies the definition of serious drug offense to include the attempt or conspiracy to commit a violation of:
- Possession or sale of precursor chemicals, regulated chemicals, substances or equipment.
- Possession, production, sale, or transportation of marijuana.
- Possession, administration, acquisition, sale, manufacture, or transportation of dangerous drugs.
- Possession, administration, acquisition, sale, manufacture or transportation of narcotic drugs.
- A felony violation of possession, use, administration, acquisition, sale, manufacture or transportation of prescription-only drugs.
- Involving or using minors in drug offenses.
Senator John Huppenthal, sponsor, advised that prosecutors requested this legislation to address the situation where a low-level drug seller is subject to harsher penalties than the head of the whole operation who is masterminding the effort.
Persons in support of S.B. 1048 who did not speak:
Sheryl Rabin, Office of the Attorney General
Eric Edwards, Lieutenant, Phoenix Police Department and Arizona Association of Chiefs of Police
Question was called for on Vice-Chairman Barto’s motion that S.B. 1048 do pass. The motion carried by a roll call vote of 5-0-1-3 (Attachment 18).
S.B. 1301, community notification; warrants – DO PASS AMENDED
Vice-Chairman Barto moved that S.B. 1301 do pass.
Ralene Whitmer, Assistant Majority Research Analyst, advised that S.B. 1301 allows law enforcement to issue warrants before distributing notification fliers if a sex offender fails to register (Attachment 19). The provisions of the bill are:
· Requires the local law enforcement agency or DPS to request that the County Attorney in the county where the person was convicted or, if appropriate, the Attorney General, to petition the court for an arrest warrant to be issued, and, if appropriate, to notify the interstate compact administrator for Arizona, if a sex offender has not registered.
· Removes the provisions that would:
- Require law enforcement to distribute fliers concerning a level two or level three offender who has not registered/reregistered before issuing a warrant.
- Allow law enforcement to distribute fliers concerning a level one offender who has not registered/reregistered before issuing a warrant.
· Makes technical and conforming changes.
Vice-Chairman Barto moved that the Farnsworth two-line amendment dated 3/29/06 be adopted (Attachment 20).
Ms. Whitmer explained that the Farnsworth two-line amendment dated 3/29/06 provides that only the county attorney would petition the court for an arrest warrant for a sex offender who is not registered (Attachment 20).
Senator John Huppenthal, sponsor, advised that law enforcement had to distribute notification fliers if a sex offender failed to register, however, that was never enforced if law enforcement knew the person was not in the area and it delayed the issuance of the arrest warrant. This proposal makes the law rational and codifies existing operational practices.
Question was called for on Vice-Chairman Barto’s motion that the Farnsworth two-line amendment dated 3/29/06 be adopted (Attachment 20). The motion carried.
Vice-Chairman Barto moved that S.B. 1301 as amended do pass.
Persons in support of S.B. 1301 who did not speak:
Brian Wilcox, Lieutenant, Legislative Liaison, Arizona Department of Public Safety (DPS)
Cheyenne Walsh, Legislative Associate, League of Arizona Cities and Towns
Stephanie Prybl, Intergovernmental Affairs Manager, City of Avondale
Suzie Barr, Deputy Director of Legislative Affairs, Office of the Governor
Question was called for on Vice-Chairman Barto’s motion that S.B. 1301 as amended do pass. The motion carried by a roll call vote of 8-0-0-1 (Attachment 21).
S.B. 1396, juvenile corrections; work restitution – DO PASS AMENDED
Vice-Chairman Barto moved that S.B. 1396 do pass.
Jen Forst, Majority Intern, stated that S.B. 1396 authorizes the court to deposit monies collected for the maintenance of youth committed to the Department of Juvenile Corrections (DJC) into the DJC Restitution Fund (Attachment 22). The provisions of the bill are:
· Allows the DJC to deposit restitution money into the Fund for the purpose of work restitution programs for juveniles.
· Compels the parent or guardian of a youth committed to the DJC to pay a fee of not more than $50 to the DJC for the supervision of the youth.
- The fee is deposited into the Fund.
· Makes technical changes.
Vice-Chairman Barto moved that the Farnsworth two-line amendment dated 3/29/06 be adopted (Attachment 23).
Ms. Forst explained that the Farnsworth two-line amendment dated 3/29/06 changes the fee from not more than $50 to not less than $50 (Attachment 23).
Question was called for on Vice-Chairman Barto’s motion that the Farnsworth two-line amendment dated 3/29/06 be adopted (Attachment 23). The motion carried.
Vice-Chairman Barto moved that S.B. 1396 as amended do pass.
Senator John Huppenthal, sponsor, advised this is a technical corrections bill. It makes two sections of the code consistent.
Person in support of S.B. 1396 who did not speak:
Patti Cordova, Director of Communications and Legislative Policy, Arizona Department of Juvenile Corrections (DJC)
Question was called for on Vice-Chairman Barto’s motion that S.B. 1396 as amended do pass. The motion carried by a roll call vote of 9-0-0-0 (Attachment 24).
S.B. 1471, sex offender treatment; privileged communications – DO PASS
Vice-Chairman Barto moved that S.B. 1471 do pass.
Ralene Whitmer, Assistant Majority Research Analyst, stated that S.B. 1471 allows for statements made by a sex offender during treatment that relate to a new sexual offense to be admissible in any criminal or juvenile delinquency proceeding (Attachment 25). The provisions of the bill are:
· Provides that a statement made by a sex offender during treatment that leads to a reasonable belief that the person has committed a new sexual offense or an offense of sexual exploitation of children could be admissible against the person in any criminal or juvenile delinquency proceeding.
· States that a treatment provider who complies with this provision does not violate any privilege established by law.
Senator John Huppenthal, sponsor, advised this bill allows information to be given to people who might come in contact with a convict prone to violence.
Barbara Hernandez, representing herself, testified in support of S.B. 1471. She related that she is a therapist who works with sex offenders in court-ordered treatment. She stated that clients are coming in for therapy for premeditated sex crimes and they are getting away with their crime because of the way the law currently stands. Currently there is no accountability in treatment and offenders do not stop behavior because they are not being held accountable from a therapeutic or legal standpoint.
Persons in support of S.B. 1471 who did not speak:
Brian Wilcox, Lieutenant, Legislative Liaison, Arizona Department of Public Safety (DPS)
Edwin Cook, Executive Director, Arizona Prosecuting Attorneys’ Advisory Council (APAAC)
Eric Edwards, Lieutenant, Phoenix Police Department and Arizona Association of Chiefs of Police
Suzie Barr, Deputy Director of Legislative Affairs, Office of the Governor
Question was called for on Vice-Chairman Barto’s motion that S.B. 1471 do pass. The motion carried by a roll call vote of 9-0-0-0 (Attachment 26).
S.B. 1339, firearms; possession; persons adjudicated delinquent – DO PASS
Vice-Chairman Barto moved that S.B. 1339 do pass.
Jen Forst, Majority Intern, related that S.B. 1339 permits the court to prohibit a juvenile from possessing a firearm if the delinquent act committed would be classified as a misdemeanor for an adult and the juvenile is in the jurisdiction of the Department of Juvenile Corrections (DJC) or the Juvenile Court (Attachment 27). The provisions of the bill are:
· Allows the court to prohibit a juvenile, who was adjudicated for an offense that would be a misdemeanor had the juvenile been an adult, from carrying or possessing a firearm while under the jurisdiction of the DJC or the Juvenile Court.
· States that a person who is adjudicated delinquent for a felony does not have the right to carry or possess a gun or firearm.
· Includes a person who has been adjudicated delinquent for a felony in the definition of prohibited possessor.
· Specifies that it is unlawful for a person, who was previously adjudicated delinquent for a felony, to possess, use or carry a firearm within ten years from the date of adjudication.
· Makes technical and conforming changes.
Persons in support of S.B. 1339 who did not speak:
Dave Kopp, President, Arizona Citizens Defense League
Jana Bertucci, representing self
John Wentling, Vice President, Arizona Citizens Defense League
Question was called for on Vice-Chairman Barto’s motion that S.B. 1339 do pass. The motion carried by a roll call vote of 7-1-1-0 (Attachment 28).
S.C.R. 1033, methamphetamine; probation ineligibility – DO PASS
Vice-Chairman Barto moved that S.C.R. 1033 do pass.
Jen Forst, Majority Intern, stated that S.C.R. 1033 prevents a person convicted of drug charges involving methamphetamine from being eligible for probation under the Drug Medicalization, Prevention and Control Act (DMPCA) of 1996 (Attachment 29). The provisions of the bill:
· Exempts an offense of personal possession or use of a controlled substance or drug paraphernalia involving methamphetamine from eligibility for probation under DMPCA.
· Directs the Secretary of State to submit this proposition to the voters at the next general election.
Senator Ken Bennett, sponsor, advised this legislation has been brought at the request of the Arizona Prosecuting Attorneys’ Advisory Council (APAAC). He related that voters approved a law that incarceration cannot be considered until conviction of a third offense for drug abuse. Since there was no real “hammer” of jail time to ensure that people would fulfill probationary measures for first and second offenses, in too many cases people would not follow through. This measure would go back to the voters to ask them if they would exclude methamphetamine so that incarceration is available upon first, second or third offenses to ensure these individuals get in treatment and counseling programs. He stated that something is needed to ensure there is a reasonable opportunity to address this problem early on in the process.
Mr. Downing asked whether there will be adequate funding to permit treatment. Senator Bennett replied in the affirmative. He said he thinks the will is there to make that commitment.
Mr. Quelland asked the reason for a Resolution instead of a bill. Senator Bennett explained that the voters approved Prop 105 language in the late ‘90s and any changes have to further the cause of the voter-approved initiative. He said the only way to extract methamphetamine out of that voter-approved initiative is to go back to the voters.
Persons in support of S.C.R. 1033 who did not speak:
Laura Hahn, Executive Vice President, Arizona Academy of Family Physicians
Cheyenne Walsh, Legislative Associate, League of Arizona Cities and Towns
Edwin Cook, Executive Director, Arizona Prosecuting Attorneys’ Advisory Council (APAAC)
Timothy La Sota, Special Assistant County Attorney, Maricopa County Attorney’s Office
Jerry Landau, Legislative Liaison, Administrative Office of the Courts (AOC), Arizona Supreme Court
Person in opposition to S.C.R. 1033 who did not speak:
Jan Bertucci, representing self
Question was called for on Vice-Chairman Barto’s motion that S.C.R. 1033 do pass. The motion carried by a roll call vote of 8-0-0-1 (Attachment 30).
S.B. 1036, election board workers
S/E: homeowners assoc; attorney’s fees – DO PASS AMENDED S/E
Vice-Chairman Barto moved that S.B. 1036 do pass.
Vice-Chairman Barto moved that the Barto seven-page strike-everything amendment dated 3/28/06 to S.B. 1036 be adopted (Attachment 31).
Ralene Whitmer, Assistant Majority Research Analyst, reviewed the provisions of the Barto seven-page strike-everything amendment dated 3/28/06 to S.B. 1036 (Attachment 32):
· Limits the amount of attorney fees that may be collected from an owner to:
- $1,000 if the claim or assessment is $5,000 or less,
- 1/3 of the amount awarded, if the claim or assessment is greater than $5,000
- Applies to:
§ Both condominium and planned community HOAs.
§ Any claim to collect monies from an owner, regardless of whether the issue is resolved with or without court action.
· Requires the court to determine and award reasonable attorney fees to the owner if the owner is the prevailing party in any court action.
· Makes a conforming change.
Question was called for on Vice-Chairman Barto’s motion that the Barto seven-page strike-everything amendment dated 3/28/06 be adopted (Attachment 31). The motion carried.
Vice-Chairman Barto moved that S.B. 1036 as amended do pass.
Persons in support of S.B. 1036 who did not speak:
Mary Arnold, representing self
Monika Smith, representing self
Donna Neill, Director, Neighborhood Activists Inter-linked Empowerment Movement (NAILEM)
Persons in opposition to S.B. 1036 who did not speak:
Jon Devner, Leisure World
Norma Kjeldgaard, representing self
Art Edwards, representing self
Elanor McLester, Leisure World
Bob Boschi, representing self
Sarah Boschi, representing self
Donna Stephens, representing self
Judith Sullivan, representing self
Dick Flamini, representing self
Doug Dale, representing self
Jerry Formsa, representing self
Ryan Anderson, Community Associations Institute
Kevin DeMenna, Community Associations Institute
Mary Schmit, Leisure World
Linda Lang, Executive Director, Arizona Association of Community Managers
Brian Lincks, Vice President of City Property Management, Arizona Association of Community Managers
Penny Koepke, representing self
Anne Dill, Community Association Institute
Kathe Barnes, Scottsdale Ranch Community Association
Question was called for on Vice-Chairman Barto’s motion that S.B. 1036 as amended do pass. The motion carried by a roll call vote of 5-0-1-3 (Attachment 33).
S.B. 1370, civil rights; identity disclosure prohibited
(now: wrongful termination; cause of action) – DO PASS
Vice-Chairman Barto moved that S.B. 1370 do pass.
Ralene Whitmer, Assistant Majority Research Analyst, stated that S.B. 1370 specifies when the cause of action is established for a breach of employment contract or wrongful termination (Attachment 34). The provisions of the bill are:
· Designates that a cause of action is established when an employer communicates to the employee the employer’s decision to breach an oral or written employment contract.
· Specifies that a cause of action is established for damages for wrongful termination when the employer communicates the termination decision to the employee.
· Contains a legislative intent section.
- The Legislature intends to clarify that the one year time period for commencing an action for wrongful termination or breach of employment contract accrues when the employee learns of the termination decision or learns of the employer’s action that form the basis for a breach of contract claim.
· Makes technical changes.
David Selden, Chairman, Employee Relations Committee, Arizona Chamber of Commerce, testified in support of S.B. 1370. He pointed out this proposal closes a loophole in law because of the way some judges have interpreted wrongful termination claims to allow that a claim does not arise until a plaintiff decides to sue an employer, which could be years later after personnel files may no longer exist. This legislation brings the law into conformance with other laws with respect to when a cause of action accrues.
Person in support of S.B. 1370 who did not speak:
Eric Edwards, Lieutenant, Phoenix Police Department and Arizona Association of Chiefs of Police
Person in opposition to S.B. 1370 who did not speak:
Tina Litteral, Executive Director, American Institute of Architects
Question was called for on Vice-Chairman Barto’s motion that S.B. 1370 do pass. The motion carried by a roll call vote of 7-0-0-2 (Attachment 35).
S.B. 1099, dyed diesel; civil penalties; liability
(now: campaign finance reports; disclosure; exemption) DO PASS
Vice-Chairman Barto moved that S.B. 1099 do pass.
Jen Forst, Majority Intern, advised that S.B. 1099 provides that the disclosure of campaign contributions and expense information does not require the disclosure of documents or information which contains trade secrets or proprietary information (Attachment 36). The bill contains an emergency clause.
Question was called for on Vice-Chairman Barto’s motion that S.B. 1099 do pass. The motion carried by a roll call vote of 7-0-0-2 (Attachment 37).
S.B. 1146, photo radar; controlled access highways – DO PASS
Vice-Chairman Barto moved that S.B. 1146 do pass.
Jen Forst, Majority Intern, stated that S.B. 1146 prohibits the State or local authority from using photo radar to identify violators of speed regulations on a controlled access highway in Arizona (Attachment 38). The bill becomes effective on December 31, 2006.
Senator Thayer Verschoor, sponsor, advised this bill would allow the demonstration project to go forward. The effective date of the ban would be January 1, 2007.
In response to Mr. Barnes, Senator Verschoor explained that the ban would end the use of photo radar on State-controlled highways.
Mr. Gallardo queried the reason for not waiting for the study to be completed before introducing this bill. Senator Verschoor answered that is a decision Members have to make when they vote on this proposal.
Bridget Manock, Government Relations Director, City of Scottsdale, testified in opposition to S.B. 1146. She advised that the City of Scottsdale started the nine-month demonstration project on the Loop 101 freeway in response to excessive speeds and the continued increase in collisions on that stretch of road. The demonstration project started February 22 and will end at the end of October. She said it is a test to see if the use of technology would impact the collisions and improve safety. An evaluation team has already begun to see if the technology works. She asked that Members oppose this bill so data will be available by the end of the year to make an informed choice.
Mr. Quelland asked who owns the equipment that is being used. Ms. Manock related that the City has contracted with Redflex.
Mr. Quelland queried who developed the computer program that is being used to run the technology and equipment. Ms. Manock answered that the contractor developed the program.
In response to Mr. Quelland, Ms. Manock explained there was a one-month warning period. After February 22, people were mailed citations and they are paying $157 for a speeding citation.
She related that the $157 fine is allocated as follows: the State receives $72, the City receives $74 and the courts receive $10. The vendor receives a portion of the money the City collects. Mr. Quelland asked the amount that Redflex receives.
Paul Porell, Traffic Engineering Director, City of Scottsdale, spoke in support of S.B. 1146. He advised that the contract with Redflex is a two-part contract. The City leases the camera installations along the freeway for approximately $2,600 a month. The City pays Redflex $42 for each paid citation.
Mr. Quelland asked about program oversight. Mr. Porell stated that the quality control processes in place are extensive. Equipment is calibrated on a regular basis and each citation, prior to being mailed, is assessed by four people to ensure it is correct.
Mr. Quelland queried who calibrates the equipment. Mr. Porell answered the technicians of Redflex.
Mr. Gallardo asked the number of citations that have been sent out and the average speed of those folks who have been cited. Mr. Porell related that during the 30-day warning period, 16,250 warning notices were issued to violators driving in excess of 76 miles per hour. Since February 22, 6,500 citations have been issued to violators and 5,900 notices of violation to owners asking them to designate the driver of the vehicle.
Mr. Miranda asked whether there has been any reduction in accidents since implementing this project. Mr. Porell advised that statistics are being compiled by the Department of Public Safety.
Mr. Downing asked when that data will be available. Mr. Porell stated that the analysis of accident statistics takes time to come to any conclusion about the effectiveness of the installations on reducing accidents. The City intends to continue to gather that information over the nine-month demonstration project.
Mr. Miranda said that since deterrence is the objective, he does not understand why preliminary statistics are not available.
Mr. Yarbrough queried the average speed as well as the mean and median for the citations issued. Mr. Porell said he does not have the information available.
Chairman Farnsworth asked whether the City has the authority to use City police to issue tickets. Mr. Porell answered in the affirmative.
Person in support of S.B. 1146 who did not speak:
Michael Merrill, representing self
Persons in opposition to S.B. 1146 who did not speak:
Cheyenne Walsh, Legislative Associate, League of Arizona Cities and Towns
Eric Edwards, Lieutenant, Phoenix Police Department and Arizona Association of Chiefs of Police
Stephanie Prybyl, Intergovernmental Affairs Manager, City of Avondale
Pamela Najera, President, National Safety Council - Arizona Chapter
Question was called for on Vice-Chairman Barto’s motion that S.B. 1146 do pass. The motion carried by a roll call vote of 7-2-0-0 (Attachment 39).
S.B. 1444, failure to register; presumptive sentence
S/E: sentencing; third felony offenses – DO PASS AMENDED S/E
Vice-Chairman Barto moved that S.B. 1444 do pass.
Vice-Chairman Barto moved that the Farnsworth three-page strike-everything amendment dated 3/28/06 to S.B. 1444 be adopted (Attachment 40).
Ralene Whitmer, Assistant Majority Research Analyst, reviewed the provisions of the Farnsworth three-page strike-everything amendment dated 3/28/06 (Attachment 41):
· Provides that it is a fundamental purpose of criminal law to identify and remove persons whose conduct threatens public safety from society.
· Sentences a person to life if the person has been convicted of:
Committing or attempting or conspiring to commit any violent or aggravated felony if the person has previously been convicted (on separate occasions) of two or more violent or aggravated felonies.
· Prohibits the person from being eligible for suspension of sentence, probation, pardon or release on any basis. Allows the person to be eligible for commutation after serving at least 35 years.
· Provides that for the purposes of this section, the prior convictions must:
Have been entered within 15 years of the conviction for the third offense, excluding time spent in custody, on probation or as an absconder, and
The sentence for the 1st violent or aggravated felony conviction must have been imposed before the conduct occurred that gave rise to the 2nd conviction and the sentence for the 2nd violent or aggravated felony conviction must have been imposed before the conduct occurred that gave rise to the 3rd conviction.
· Applies Chapter 3 of Title 13 (parties to offenses; accountability) to all offenses under the new section.
· Considers an offense committed in another jurisdiction an offense committed in Arizona if:
Had the offense been committed in Arizona, it would be a violation or attempted violation of any offenses listed in the new section, and
The offense has the same elements of an offense listed in the new section.
· Defines violent or aggravated felony as any of the following offenses:
First degree murder (A.R.S. § 13-1105)
Second degree murder (A.R.S. § 13-1104)
Aggravated assault resulting in serious physical injury or involving the discharge, use or threatening exhibition of a deadly weapon/dangerous instrument (A.R.S. § 13-1204)
Dangerous or deadly assault by a prisoner (A.R.S. § 13-1206)
Committing an assault with intent to incite to riot or participate in riot (A.R.S. § 13-1207)
Drive-by shooting (A.R.S. § 13-1209)
Knowingly discharging a firearm at a residential structure if it
is occupied
(A.R.S. § 13-1211)
Kidnapping (A.R.S. 13-1304)
Sexual conduct with a minor that is a Class 2 felony (victim is under 15 years of age) (A.R.S. § 13-1405)
Sexual assault (A.R.S. § 13-1406)
Molestation of a child (A.R.S. § 13-1410)
Continuous sexual abuse of a child (A.R.S. § 13-1417)
Violent sexual assault (A.R.S. § 13-1423)
First degree burglary committed in a residential structure if the structure is occupied (A.R.S. § 13-1508)
Arson of an occupied structure (A.R.S. § 13-1704)
Arson of an occupied prison or jail facility (A.R.S. § 13-1705)
Armed robbery (A.R.S. § 13-1904)
Participating in or assisting a criminal syndicate or leading or participating in a criminal street gang (A.R.S. § 13-2308)
Terrorism (A.R.S. § 13-2308.01)
Taking a child for the purpose of prostitution (A.R.S. § 13-3206)
Child prostitution (A.R.S. § 13-3212)
Commercial sexual exploitation of a minor (A.R.S. § 13-3552)
Sexual exploitation of a minor (A.R.S. § 13-3553)
Unlawful introduction of disease or parasite (A.R.S. § 13-2912)
Timothy La Sota, Special Assistant County Attorney, Maricopa County Attorney’s Office, testified in support of the strike-everything amendment to S.B. 1444. He stated this proposal applies to the worst of the worst offenders, the people who have committed two previous offenses, and each time have gone through the system and been convicted for each of the offenses. He said these are the worst of the three-time losers who deserve to go to prison for 35 years because their crimes are horrific. Because this legislation is limited to the 24 offenses listed in the bill, he thinks the effect of this bill will be relatively small.
Persons in support of S.B. 1444 who did not speak:
Bill Montgomery, representing self
Donna Neill, Director, Neighborhood Activists Inter-linked Empowerment Movement (NAILEM)
Cheyenne Walsh, Legislative Associate, League of Arizona Cities and Towns
Matt Salmon, representing McCabys Food Distribution
Person in opposition to S.B. 1444 who did not speak:
Jana Bertucci, representing self
Question was called for on Vice-Chairman Barto’s motion that the Farnsworth three-page strike-everything amendment dated 3/28/06 be adopted (Attachment 40). The motion carried.
Vice-Chairman Barto moved that S.B. 1444 as amended do pass. The motion carried by a roll call vote of 6-1-1-1 (Attachment 42).
S.B. 1374, workers’ compensation; safety plans
(now: purchaser
dwelling actions; notice – DO PASS AMENDED FAILED
Vice-Chairman Barto moved that S.B. 1374 do pass.
Ralene Whitmer, Assistant Majority Research Analyst, advised that S.B. 1374 modifies statutes relating to legal actions taken based on indemnity of the sale and development of real property (Attachment 43). The provisions of the bill are:
· Specifies that a person who has had an action or arbitration brought against them in a timely manner is exempt from the requirement to bring further actions based on indemnity within eight years of the completion of the improvement to real property (nine years, if the original action was taken in the eighth year).
· Requires that “reasonable detail” in a written notice include a detailed and itemized list of defects that describes each alleged defect and the location of each alleged defect in each dwelling that is the subject of the notice.
Vice-Chairman Barto moved that the Paton 13-line amendment dated 3/29/06 be adopted (Attachment 44).
Ms. Whitmer explained that the Paton 13-line amendment dated 3/29/06 allows for a one-year extension of the limitation period (Attachment 44).
Mr. Paton said there is a period of time in which the builder can file a suit against a subcontractor. The problem is that if a defect is discovered within the last year, it does not give the builder enough time to sue the subcontractor because the investigation can take up to a year. This legislation allows for a one-year extension.
Senator Barbara Leff, sponsor, stated this legislation clarifies which parts of the house need to be addressed when there are problems. She thanked Mr. Paton for sponsoring the amendment which was a controversial piece of the bill.
Mr. Yarbrough noted there are seven or eight organizations who oppose the bill. He asked the sponsor if she worked out things with those folks. Senator Leff replied that the engineering and the architectural groups are still not happy with the one-year provision because they come in a year or two before anyone else. They continue to have concerns about that extra year. She related the other subcontractors who have anything to do with the actual construction from the time the construction began are in agreement with the amendment.
Mr. Paton said he understands the original proposal contemplated more years than just the one year. Senator Leff agreed. She said the construction industry was looking at the eight years plus additional six years. Under current law, if a homeowner sued in the eighth year, the homebuilder would not have time to determine which subcontractor created the problem, so the homebuilder included all subcontractors in the lawsuit. This legislation narrows the current situation. She said a compromise was reached changing the six years to one year.
Kevin O’Malley, representing Home Builders Association of Central Arizona, testified in support of S.B. 1374. He advised that the construction industry has been facing a crisis, particularly on the residential side, with construction defect lawsuits. He advised that a compromise was reached on language relating to a list of reasonable detail so that defects can be addressed. The second part of the bill deals with the statute of repose. The statute of repose provides that a homeowner has an eight-year period of time to bring a claim. He said the contract is just between the builder and the homeowner, so when a lawsuit starts, it is against the builder. There is also a subcontract stipulating that if a problem arises as a result of the subcontractor’s work, the subcontractor agrees to indemnify and protect the general contractor. When a lawsuit is filed near the end of the statute of repose, the builder needs to determine which of the trade subcontractors are involved and it takes time to investigate who is responsible for the defect. He said he hopes the Legislature will address this issue and not let the courts ultimately decide this.
In response to Mr. Downing, Mr. O’Malley said this does not change current law. It gives a builder a one-year extension to allow the builder to do an adequate investigation of who caused the actual defect.
Mr. Miranda noted that this relates to quality. He stated that construction quality has gone down in the last five years. Mr. O’Malley answered that he does not think it is a quality issue but the fact that a cottage industry of litigation in construction defects has arisen, in addition to the massive amount of homebuilding that has gone on.
Spencer Kamps, Deputy Director, Home Builders Association of Central Arizona, expressed support of S.B. 1374. With regard to Mr. Miranda’s comment about lowered quality, he said the facts show differently. Customer service satisfaction surveys show that the market here in Arizona is more satisfied compared to other markets in the nation. While homebuilding has almost doubled in the last five years, complaints have gone down overall. He thinks that customers are happy and pleased with the quality construction.
In response to Mr. Miranda, Mr. Kamps concurred that qualified labor is the limiting factor to production as well as a shortage of people to provide these products. He said that is a major issue.
Mr. Yarbrough asked the percentage of defect lawsuits filed in the last year. Mr. O’Malley replied that he does not know the statistics. His impression is that it is not a huge problem.
Barry Aarons, representing Construction Trades Coalition, testified in opposition to S.B. 1374. He expressed concern about extending trade exposure. Subcontractors should not have to go through an additional year of exposure on these kinds of suits. Although the six trade associations which make up the Coalition were not invited to participate in discussions on this issue, he said the Coalition will continue to negotiate with homebuilders; however, at this time, it is opposed to the bill as well as the amendment.
Mr. Miranda queried whether the problem is materials, labor or the sheer number of construction projects.
Mark Giebelhaus, representing himself, spoke against S.B. 1374. The bill extends the subcontractors’ exposure to any potential construction lawsuits. He related that his company is currently involved in two construction lawsuits that were filed in the ninth year, after the eight-year statute of repose. He cannot understand why the judge is allowing this to go on and is ignoring the law. He said he does not want to allow his company to be exposed to the additional year when the courts are not paying attention to the law now. In response to Mr. Miranda, he does not think the problem is product or labor. He thinks the issue is frivolous lawsuits. Attorneys have found a vehicle to get money from insurance companies when there really are no defects in the product being built.
Janice Burnett, Executive Director, American Council of Engineering Companies of Arizona, expressed opposition to S.B. 1374. She advised she represents people in the design industry. She said she has only been able to find one case where this has been a problem since the law was passed in the late ‘80s. She said her members are willing to sign a tolling agreement stipulating that the designer is responsible if something is wrong with the design. Designers are responsible two to four years before anyone ever occupies a house, and they are included in the eight-plus period of time. Extending it an additional year is of no interest to the Council. She said she would like to see an amendment that separates the bill between the parts that affect the design industry and the builders. She distributed a handout showing that 90 percent of design claims come within the first six years (Attachment 45). She said the Council would like to have an opportunity to work on this over the summer with all the stakeholders and have some true meaningful input.
Dave Eberhart, representing American Council of Engineering Companies of Arizona, testified in opposition to S.B. 1374. He reiterated the comment made by Ms. Burnett that only one instance has been found in the 16 years the statute has been on the books. The issue involved a case where a homebuilding company was sued late in the eighth year of the statute of repose. In turn, the homebuilder filed suit against the subcontractors who allegedly did the defective work. Since the homebuilder was unable to get the lawsuits filed in time, the court held that the homebuilder had to carry all the liability. That one case is the issue this bill is trying to resolve.
Persons in support of S.B. 1374 who did not speak:
David Martin, representing Associated General Contractors, Arizona Chapter
Trevor Chait, representing Home Builders Association of Central Arizona
Persons in opposition to S.B. 1374 who did not speak:
Debra Margraf, Executive Director, Arizona Chapter NECA
Carl Triphahn, representing self
Mark Major, representing self
Tina Litterall, Executive Director, American Institute of Architects
Question was called for on Vice-Chairman Barto’s motion that the Paton 13-line amendment dated 3/29/06 be adopted (Attachment 44). The motion carried.
Vice-Chairman Barto moved that S.B. 1374 as amended do pass. The motion failed by a roll call vote of 4-5-0-0 (Attachment 46).
Chairman Farnsworth recessed the meeting to the sound of the gavel. THE MEETING RECESSED AT 12:03 P.M.
THE MEETING RECONVENED AT 4:43 P.M. All Members were present with the exception of Vice-Chairman Barto.
CONSIDERATION OF BILLS:
S.B. 1557, election reform; manual count
S/E: same subject – DO PASS
Mr. Yarbrough moved that S.B. 1557 do pass.
Mr. Yarbrough moved the Farnsworth 11-page strike-everything amendment dated 3/28/06 to S.B. 1557 be adopted (Attachment 47).
Ralene Whitmer, Assistant Majority Research Analyst, advised that the Farnsworth 11-page strike-everything amendment dated 3/28/06 makes changes to election laws (Attachment 48). The provisions of the bill are:
· Requires the Secretary of State (SOS) to include in the instructions and procedures manual the maximum allowable wait time for any election and the method to reduce voter wait time for the primary and general elections. The method for the primary and general elections in each precinct is required to consider the following:
- The number of ballots voted in the previous primary and general elections.
- The number of registered voters who voted early in the previous primary and general elections.
- The number of registered voters and the number of registered voters who cast an early ballot for the current primary and general election.
- The number of election board members and clerks and the number of rosters that will reduce voter wait time at the polls.
· Stipulates that the election marshal is to periodically measure the length of waiting times at the polling place during the day. If the waiting time is 30 minutes or more, the marshal must inform the officer in charge of elections and request additional voting machines, voting booths, and board workers.
· Mandates that all computer programs use open source coding.
· Includes additional testing of vote tabulating devices by an independent team who shall determine whether the computer software and other systems used in that election are vulnerable to outside attack, malicious encryption, remote manipulation of results or other failures in the security and integrity of the computer vote count.
· Directs the SOS to appoint a team of persons with expertise in computer security who are independent of the vendors used by that officer in charge of elections and to provide for the compensation of the independent computer security team.
· Requires that an electronic voting system provide a paper document or ballot that the voter may use to verify the voter’s choices.
· States that any paper document that is generated by an electronic tabulating machine and that is not a ballot must be deposited in a semitransparent or translucent secured container that is kept at the polling place while the polls are open and must be delivered to the central counting center after the polls are closed. The paper document must be used in manual audits and recounts.
· Requires that in each election, the officer in charge of elections must conduct a hand count of at least five percent of the precincts in that election.
· Stipulates that the precincts be selected by lot without the use of a computer immediately after the close of the polls at the central counting center.
· Directs the officer in charge of elections to immediately notify the selected precincts which were chosen by lot to perform a hand count.
· Allows for the original election board for the selected precinct to conduct the hand count and to receive additional compensation as determined by the Board of Supervisors or the officer in charge of the elections may name a new election board for the hand count.
· Requires that the manual count comply with inspection of ballots by party representatives, count of votes cast and disposition of paper ballots after count.
· Mandates that if an electronic voting system is used, the officer in charge of elections shall conduct an election validation test before the completion of the canvass.
· Expands the hand count to include two times the initial number of selected precincts in the initial hand count if the randomly selected hand count results in a difference of two votes or more from the electronic tabulation of the same ballots.
· Provides that if the cumulative discrepancy for any race or measure exceeds five votes, the hand count shall be expanded to include all precincts for the races or measures in which the five or more vote discrepancy occurred.
· Applies the same standards that apply to votes tabulated automatically to votes that are counted by hand.
· Directs that if a full hand count of the election is conducted for any race or measure, the officer in charge of the election shall investigate the automatic tabulating equipment that was used and shall inform the SOS that the equipment used may require review for possible revocation of certification.
· Requires that in addition to using the automatic tabulating system, hand counts must be used for the recounted race. Exempts any previously hand-counted precincts.
· Specifies that hand counts constitute the official tally of votes if there is a difference between the hand count and automatic tabulation of ballots.
· States that the members of the election board must prepare a report in triplicate of the number of voters who have voted.
· Requires the inspector to post in a public location in the polling place one of the triplicate reports of the number of voters who have voted and the vote totals for each office and measure that is on the ballot.
· Makes technical and conforming changes.
Senator Karen Johnson, sponsor, advised this bill has been a collaboration for many months of people from all political parties; people who care about the veracity of elections. They want elections to be accurate and have integrity. Having a small percentage of manual count at the polling place to see if the count matches the machine totals will show whether the machine is accurate. She said it is a small thing to do to make the public understand that elections are accurate and honest.
Mr. Downing stated this bill in no way criticizes election officials but is primarily because of new technologies coming in because of the Help America Vote Act (HAVA). He asked whether new concerns have arisen because of HAVA. Senator Johnson replied in the affirmative.
Senator John Huppenthal thanked the sponsor for bringing this bill forward because he shares her concern about problems that have occurred in the past. He advised that concerns were raised about the software by which the ballots are counted and the issue is whether to have proprietary software or open source. He thinks it should be required that the software be put into escrow to ensure that the original source code was not “doctored.” Another issue is whether the counting of the ballots should be by audit or a recount. He opined that it should be an audit, not a recount because there is always variance when a recount is done. A study showed that the average variation from count to recount was about 20 percentage points. He said the underlying bill does not address the escrow on the software and how that would be done, nor does it address the sampling for the smaller counties. He thinks all these issues can be negotiated; however, the strike-everything amendment moves this into a different direction. He urged Members to approve the underlying bill and keep the negotiations going.
Karen Osborne, Elections Director, Maricopa County, testified that she supports the underlying bill but opposes the strike-everything amendment to S.B. 1557. From Maricopa County’s perspective, the strike-everything amendment will require counting 180,000 votes by hand. She believes that in the primary election there will be more than a two-vote difference, which then expands the number to 360,000 votes. In the general election, the number would be four million votes. The underlying bill picks out the federal, state and the legislative races. The strike-everything amendment counts every race. She questioned the availability of time and the people available to accomplish the count. She stated the underlying bill provides the audit that deals with concerns.
Brad Nelson, President, Election Officials of Arizona, advised that the Election Officials rise in opposition to the strike-everything amendment to S.B. 1557. He stated that a ballot hand count is the most error-prone type of balloting.
Mr. Downing asked whether the issue is with the resources and mechanics of doing the manual count. Mr. Nelson replied that time and resources are a major concern.
Mr. Miranda queried whether financial resources are the issue or whether the issue is that it would delay the results. Mr. Nelson answered that the resource that is most scarce is time.
Mr. Gallardo queried whether there is a way to find some type of middle ground in terms of the amendment and the underlying bill with respect to accuracy of the count. He asked whether it would be better if a particular office were selected instead of doing the entire ballot. Mr. Nelson advised that Pima County presently does that. At the close of elections, the four political parties get together and decide a precinct they will poll. The precinct has one office they determine they are going to hand tally and compare against the machine count. He maintained that a complete ballot count is way too broad.
A handout on election reform was distributed (Attachment 49).
Mr. Gallardo asked Mr. Downing if he supports choosing an office instead of doing an entire ballot. Mr. Downing replied in the negative. Because of technological changes that have occurred, a logic and accuracy test has never been performed on the machines that are coming forward now. In addition, the question is what is being checked on the machines. He pointed out this is dealing with new technology. He questioned how one race on a machine can be done where there are no paper ballots. On a DRE, or a touch-screen device, there are no paper ballots.
Mr. Nelson said that DREs do have a paper voter-verifiable audit trail, and logic and accuracy tests have been done on touch-screen voting devices in Yavapai County.
Don Gutenkauf, representing himself, testified in support of S.B. 1557. He related that there is a major crisis in confidence with election integrity in Arizona and all across the country. A September 2005 government report highlighted major problems with computerized voting with miscounted votes and uncounted votes. In the last District 20 election, there were miscounted votes and on recount on the machine, 486 new votes appeared. He advised there is no resolution to that race because it is not in statute that the ballots can be manually counted. He questioned why there is so much variance in recount if these machines are so accurate. He said there is a history of problems with miscounted votes in the State, and the solution is to do manual counts.
In response to Mr. Quelland, Mr.
Gutenkauf reported that according to the Cal-
Tec/MIT study after the 2000 elections, manually-counted paper ballots are the
most accurate means of counting votes of the five systems used in the last four
presidential elections. He also said it has been recommended that the software
be open-source so the software can be open to public inspection. He stated
there has to be transparency to this process.
Chairman Farnsworth asked whether open source coding creates an increase in the possibility of “hacking.” Mr. Gutenkauf replied that it should make the process more secure.
Carolyn Maxon, representing herself, expressed support of S.B. 1557. She said it would never be known if someone who had the source code fixed an election. The only way to know is by a hand count and a hand count audit. She thinks the most important thing is to have a hand count audit at the precinct and that is what the amendment calls for.
Carol Corsica, representing herself, testified in support of S.B. 1557. She stated that voters are very concerned about whether their vote is being counted. If some kind of manual audit is instituted with a paper backup, people can be assured that the system is actually working. Accuracy and confidence is what is needed. She said her greatest concern is that a resolution be reached on this issue. She wants a manual audit that will be effective.
Michael Shelby, Arizona Citizens for Election Reform, spoke in support of the amendments to S.B. 1557. He said that election integrity is not a partisan issue; it is a civic responsibility. He declared that people want integrity, honesty, accuracy, veracity, accountability and verifiability in the election process. He maintained that people have grave doubts about elections. S.B. 1557, with the amendments, will help to restore confidence in Arizona’s elections and election officials. Transparency in assuring accurate and honest elections is the best way to increase voter confidence. This bill puts together procedures, policies and laws that protect the vote from fraud and manipulation, and assures that voting machines will be manually verified for accuracy.
Senator Jack Harper said he is here to advocate for this proposal. He urged support of S.B. 1557.
Senator Paula Aboud asked
the Committee to support the strike-everything amendment to
S.B. 1557. She spoke of the need to secure elections.
Persons in support of S.B. 1557 who did not speak:
Dave Kopp, President, Arizona Citizens Defense League
Jana Bertucci, representing self
Denise Hess, representing self
Polly Screed, representing self
Debra Brimhall, representing self
Person in opposition to S.B. 1557 who did not speak:
Nicole Stickler, Executive Director, Arizona Association of Counties
Mr. Downing moved that the Downing four-line amendment dated 3/29/06 to the Farnsworth 11-page strike-everything amendment be adopted (Attachment 50).
Ms. Whitmer explained that the Downing four-line amendment dated 3/29/06 to the Farnsworth 11-page strike-everything amendment removes the requirements for paper documents provided by an electronic voting system to be kept in a semi-transparent or translucent secured container and requires that an electronic voting system provide a paper durable ballot (Attachment 50).
Question was called for on Mr. Downing’s motion that the Downing four-line amendment dated 3/29./06 to the Farnsworth 11-page strike-everything amendment be adopted (Attachment 50). The motion carried.
Mr. Yarbrough moved that the Farnsworth 11-page strike-everything amendment as amended be adopted (Attachment 47). Division was called and by a hand vote of 4 ayes and 4 nays, the motion failed.
Question was called for on Mr. Yarbrough’s motion that S.B. 1557 do pass. The motion carried by a roll call of 8-0-0-1 (Attachment 51).
S.B. 1374, workers’ compensation; safety plan
(now: purchaser dwelling actions; notice) – DO PASS AMENDED (On Reconsideration)
Having voted on the prevailing side, Mr. Quelland moved that the Judiciary Committee reconsider its action of today whereby S.B. 1374 as amended failed to pass and that the bill be reconsidered immediately. The motion carried.
Mr. Yarbrough moved that S.B. 1374 do pass.
Mr. Yarbrough moved that the Paton 13-line amendment dated 3/29/06 be adopted (Attachment 44). The motion carried.
Mr. Yarbrough moved that S.B. 1374 as amended do pass. The motion carried by a roll call vote of 8-0-0-1 (Attachment 52).
Without objection, the meeting adjourned at 6:05 p.m.
___________________________________
Joanne Bell, Committee Secretary
December 23, 2016
(Original minutes, attachments and tape on file in the Chief Clerk’s Office)
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COMMITTEE ON JUDICIARY
34
March 30, 2006
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