Legislature(2001 - 2002)
04/17/2002 01:10 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 350 - TERRORISTIC THREATS [Contains mention that HB 350 and HB 328 have been combined into a committee substitute (CS) for HB 350; contains references to HB 325.] Number 0070 CHAIR ROKEBERG announced that the first order of business would be HOUSE BILL NO. 350, "An Act relating to terroristic threatening." [Before the committee was CSHB 350(TRA).] Number 0076 REPRESENTATIVE LESIL McGUIRE, Alaska State Legislature, sponsor, mentioned that she and staff from her office, from Representative Berkowitz's office, and from Representative Rokeberg's office have been working with Anne Carpeneti from the Department of Law (DOL) to create a committee substitute (CS) that incorporates aspects of both HB 350 and HB 328, which are similar in intent. She posited that this proposed CS would address the statutory changes needed as a result of the terrorist attacks of September 11, 2001. REPRESENTATIVE McGUIRE explained that the concept of [CSHB 350(TRA)] has been incorporated into Sections 6-8 and 17-18 of the proposed CS. She noted that language pertaining to schedule delays and threats has been inserted into Sections 17 and 18 of the proposed CS. In addition, the proposed CS creates a new statute - AS 11.56.807 - which adds an additional level of terroristic threatening [in the first degree]. REPRESENTATIVE McGUIRE, in closing, remarked that while there is a tenuous balance between protecting an individual's rights and living in a police state, there is also a need to recognize the new threats to security arising from the terrorist attacks of September 11th. She reiterated that it was both her intent and the governor's, via HB 350 and HB 328, to take a comprehensive look at, and possibly update, Alaska's statutes regarding this issue. Number 0281 HEATHER M. NOBREGA, Staff to Representative Norman Rokeberg, House Judiciary Standing Committee, Alaska State Legislature, in response to a question, mentioned that although there would be fiscal notes accompanying the proposed CS, they were unavailable at this time. Number 0319 REPRESENTATIVE JAMES moved to adopt the proposed committee substitute (CS) for HB 350, version 22-LS1300\B, Luckhaupt, 4/15/02, as a work draft. There being no objection, Version B was before the committee. Number 0373 STEVE CONN, Alaska Public Interest Research Group (AkPIRG), testified via teleconference and mentioned his concern that HB 350 could allow a political act to be interpreted in such a way as to trigger provisions of HB 325 that allow the governor to invoke emergency powers. For example, he said, a person could make a false report regarding the threat of an avalanche that results in the delay of a bus going from Anchorage to Seward, and if the governor invokes emergency powers via HB 325, it could result in the suspension of a variety of legal rights including property rights. He opined that [HB 350] creates a vague crime that would be open for challenge, and that the word "terroristic" is extremely unhelpful. MR. CONN, in response to questions, said that he was looking at language in Section 2 [of CSHB 350(TRA)] which provides that under AS 11.56.810: (a) A person commits the crime of terroristic threatening if the person knowingly makes a false report that a circumstance (1) dangerous to human life exists or is about to exist and ... (D) disrupts the schedule of an entity providing transportation services for persons or property; (2) exists or is about to exist that is dangerous to the proper or safe functioning of an oil or gas pipeline.... REPRESENTATIVE BERKOWITZ indicated that [Section 18] of Version B has similar language although it has been changed to say: (a) A person commits the crime of terroristic threatening in the second degree of the person knowingly makes a false report that a circumstance (1) dangerous to human life exists or is about to exist and ... (E) substantially disrupts the schedule of an entity providing transportation services for persons or property; or (2) exists or is about to exist that is dangerous to the proper or safe function of an oil or gas pipeline.... MR. CONN, acknowledging that he does not yet have Version B at his location, opined that language in [CSHB 350(TRA)] "ill serves the public need by diminishing terrorism to an individualized crime, rather [than] one that is, effectively, an attack on the state, on the community." Number 0766 ANNE CARPENETI, Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law (DOL), surmised that Mr. Conn's comments apply to current law, too, since terroristic threatening, in present law, prohibits a person [from] making a false report that a circumstance dangerous to human life exists or is about to exist and causes various results, for example, placing a person in fear, causing evacuation of a building, [or causing a serious public inconvenience]. Version B, she noted, adds the crime of substantially disrupting the schedule of an entity providing transportation services. Therefore, she opined, Version B is not making any change in the law that [would warrant Mr. Conn's concerns]. REPRESENTATIVE BERKOWITZ argued, however, that under current law, causing a serious public inconvenience is a class C felony, whereas under Section 17 of Version B, causing a serious public inconvenience [could be] a class B felony. He noted, too, that Version B adds the new component of substantially disrupting the schedule [of an entity providing transportation services]. REPRESENTATIVE COGHILL pointed out that in Version B, [this new component pertaining to substantially disrupting the schedule of an entity providing transportation services] would still be a class C felony. REPRESENTATIVE BERKOWITZ noted that under terroristic threatening in the first degree - Section 17, page 9, line 4 - it is a crime to cause serious public inconvenience. MS. CARPENETI pointed out that the new terroristic threatening in the first degree [Section 17] involves different conduct than the current statute, whereas terroristic threatening in the second degree, as proposed by Section 18, remains a class C felony and adds new ways of committing this crime [including substantially disrupting the schedule of an entity providing transportation services]. REPRESENTATIVE BERKOWITZ suggested that in Section 18, it would be sufficient to have one of the components be causing serious public inconvenience, rather than add language pertaining to substantially disrupting the schedule [of an entity providing transportation services]. CHAIR ROKEBERG noted that the language "causes serious public inconvenience" is in both Section 17 and Section 18. REPRESENTATIVE BERKOWITZ said that he does not understand what [subparagraph] (E) adds to Section 18. Number 0949 REPRESENTATIVE McGUIRE pointed out, for example, that the original qualifier of Section 17 - the predicate element - is: (a) A person commits the act of terroristic threatening in the first degree if the person sends, delivers, or attempts to send or deliver a package or any other item containing a biological or chemical substance or an imitation biological or chemical substance with intent to.... That then modifies the phrase "causes serious public inconvenience". She offered that it is a policy decision whether to additionally have that qualifier modify the phrase that begins "substantially disrupts the schedule of an entity". REPRESENTATIVE BERKOWITZ, referring to Section 18 [subparagraphs] (C) and (E), offered that there could potentially be a situation in which substantial disruption of a schedule does not rise to the level of serious public inconvenience. The language is written disjunctively, he added. MS. CARPENETI said that Representative Berkowitz is correct; the language in Section 18 is written in the disjunctive. Therefore, she noted, the issue is whether causing public inconvenience will encompass every instance of substantially disrupting the schedule of an entity providing transportation services for persons or property. She recommended that the language currently in Section 18 of Version B remain as is in order to cover circumstances in which the substantial disruption of public transportation does not cause widespread public inconvenience. REPRESENTATIVE McGUIRE said that it is a policy decision whether to include both components as being worthy of rising to the level [of a class C felony]. She pointed out that the qualifier for Section 18 is "knowingly making a false report that a circumstance ... dangerous to human life exists or is about to exist and", so there are some elements that have to be met first, before any of the components becomes a class C felony. MR. CONN indicated that he has received a copy of Version B. He relayed that one of his concerns is that at the same time HB 350 is moving forward as an amendment to the criminal law, HB 325, which adds the term "terrorist attack" to language pertaining to an actual enemy attack, will trigger the imposition of martial law in Alaska and the subsequent suspension of all rights. He remarked that the language in HB 350 regarding terrorism could become the defining language used as the basis for invoking provisions of HB 325. Number 1173 MR. CONN pointed out that the current statutory language, which HB 350 proposes to modify, "relates to pre-September 11th thinking about the terror evoked in any single victim by certain acts of the perpetrator." In contrast, HB 325 introduces into Alaska law, coincidental with the word "enemy", "a kind of non- state domestic entity ... whose threat can be such that all laws are suspended." He opined that public policy demands that HB 350 and HB 325 be read jointly so as not to do great harm to HB 325. REPRESENTATIVE McGUIRE, in response, offered that saying that someone commits a crime of terroristic threatening does not necessarily mean that that person is a terrorist. Terroristic threatening is already a crime under current statutes, so HB 350 would not be setting any precedents. She posited HB 350 is very narrow and pointed out that the individual components of Sections 17 and 18 rely on the predicate elements of their respective subsections (a). She remarked that HB 325 is a separate issue but assured Mr. Conn that she has noted his concerns and would try to address them should HB 325 make it to the House floor for debate. CHAIR ROKEBERG remarked that Mr. Conn raises an interesting point, that it should be clearer that there is disconnection between HB 350 and HB 325. He also said that he did not necessarily agree with Representative McGuire that defining the crime of terroristic threatening does not also define what a terrorist is. CHAIR ROKEBERG closed public [testimony] on HB 350. REPRESENTATIVE BERKOWITZ, referring to Section 16, lines 20-22, asked why that language has been added to AS 11.56.800(a)(3). MS. CARPENETI explained that it was added as a precautionary measure to make it clear that if conduct arises to the level of terroristic threatening in the second degree, it should be charged under that. In response to a question, she acknowledged that depending on the facts, such conduct might possibly be considered a lesser included offense under AS 11.56.800. REPRESENTATIVE BERKOWITZ asked whether there have been any problems in the past that require adding language to the criminal code, specifically to AS 11.56.800. He remarked that he doesn't like to add language to the criminal code without a demonstrable need to do so. He asked what the addition of the new language proposed by Section 16 adds to the criminal code, or what it corrects. MS. CARPENETI said that in drafting Version B, [she and the sponsor] wanted to make it clear that conduct covered under AS 11.56.810 - terroristic threatening in the second degree - should be charged under that provision. Thus, addition of language in Section 16 would ensure that if there were any confusion that certain conduct came under both AS 11.56.800 and AS 11.56.810, the conduct would be charged under the latter. Number 1490 REPRESENTATIVE BERKOWITZ made a motion to adopt Amendment 1, which would delete [subparagraph] (E) from Section 18. Number 1499 CHAIR ROKEBERG objected. REPRESENTATIVE BERKOWITZ, in defense of Amendment 1, opined that "causes serious public inconvenience" would include the substantial disruption of the schedule of an entity providing transportation, which, by contrast, could have no practical effect if, for example, a bus or ferry was delayed but was not carrying any passengers. CHAIR ROKEBERG said he disagreed. REPRESENTATIVE McGUIRE opined that it is important to retain the language in [subparagraph] (E) in case it could apply to certain circumstances. REPRESENTATIVE BERKOWITZ opined that [subparagraph] (E) is superfluous, and that retaining it would be an invitation for trouble. Number 1615 A roll call vote was taken. Representatives Berkowitz voted for Amendment 1. Representatives Meyer, James, Coghill, and Rokeberg voted against it. Therefore, Amendment 1 failed by a vote of 1-4. Number 1623 REPRESENTATIVE JAMES moved to report the proposed committee substitute (CS) for HB 350, version 22-LS1300\B, Luckhaupt, 4/15/02, out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, CSHB 350(JUD) was reported from the House Judiciary Standing Committee.
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