Legislature(2013 - 2014)CAPITOL 120
04/07/2014 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| Confirmation Hearings: || Confirmation Hearings: | |
| HB214 | |
| Confirmation Hearings: || Confirmation Hearings: | |
| HB214 | |
| HB282 | |
| HB375 | |
| HB60 | |
| HB282 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| + | HB 60 | TELECONFERENCED | |
| + | HB 214 | TELECONFERENCED | |
| *+ | HB 381 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 375 | TELECONFERENCED | |
| += | SB 64 | TELECONFERENCED | |
| += | HB 108 | TELECONFERENCED | |
| += | HB 282 | TELECONFERENCED | |
HB 375-CRIMINAL TRESPASS ON PRIVATE PROPERTY
1:52:27 PM
CHAIR KELLER announced that the next order of business would be
HOUSE BILL NO. 375, "An Act relating to the crime of trespass."
1:52:55 PM
DARRELL BREESE, Staff, to Representative Bill Stoltze, Alaska
State Legislature, said [HB 375] repeals two sections in the
definition of criminal trespass in statute that require specific
language and a specific manner in which individuals must post
"no trespassing" signs on their property. He stated that there
have been two recent conflicts in the Matanuska-Susitna Valley,
and one involved trapping on private property and the other
involved the shooting of a pet turkey. In both cases there were
"no trespassing" signs posted, he noted, but the signs were not
posted as described in statute. By repealing the definitions,
the burden shifts from a big specific set of guidelines for
posting signs to a narrow definition, making it simpler for
property owners to declare no trespassing when they wish.
REPRESENTATIVE LEDOUX said she had a question for Anne Carpeneti
[Alaska Department of Law] about the pet turkey situation.
CHAIR KELLER said Captain Burke Waldron [from the Alaska
Wildlife Troopers] is here to answer questions.
REPRESENTATIVE LEDOUX asked if there was a violation of law
[when the turkey was shot] that the troopers decided not to
prosecute. "When you drive up on somebody's driveway and shoot
something on their lawn," it would seem to violate something,
she stated.
1:55:25 PM
BURKE WALDRON, Captain, Alaska Wildlife Troopers, Department of
Public Safety, said his office provided a written response to
the committee. There was no criminal trespass committed with
the turkey incident because the turkey was shot on the person's
driveway on the edge of the roadway, "and there were some
significant issues in establishing whether the turkey was a
feral game bird or a domestic pet," which may pertain to either
a hunting violation or criminal mischief, he offered. The
trooper [at the scene] exercised discretion, he said, and
advised both parties of potential civil remedies.
1:56:25 PM
CHAIR KELLER said there will be public testimony.
REPRESENTATIVE GRUENBERG said he is slightly confused by the
email from the troopers. He said that particular incident may
not be a good example of anything because no law was broken.
The question is about repealing subsections (b) and (c) in the
criminal trespass law, and that will require anyone who goes for
a walk in woods to do a title search of every place they go.
That may be easy to do in New York City, he surmised, but it
will be difficult in some areas of Alaska. He said that he
imagines it will be hard to determine if someone is trespassing,
"and I think the purpose of this law that is on the books is to
put the average person on notice that they are on somebody
else's land, and I don't see how the average person is going to
know that unless there is at least something posted."
1:59:10 PM
MR. BREESE said Representative Gruenberg is partially correct.
There is implied consent to use a trail crossing someone's
property, just as there is implied consent for someone accessing
a driving, roadway, or river that crosses a property. "So for
that intent and purposes, I think, you're not looking at the
opportunity to prosecute in those instances if you're just
merely hiking across and walking across someone's property. I
don't know that it elevates to the standards that are set forth
in the descriptions of first degree and second degree criminal
trespass," he said. He noted that the bill is just removing the
requirement for a clear sign at every point of access.
2:00:27 PM
MR. BREESE stated that in both incidences there were [no] "no
trespassing" signs posted, so according to current statute,
there was no law broken. The law is flawed because there is no
potential for trespassing if someone does not post a sign as
specifically spelled out in statute, at every access point, that
is 144 square inches and contains the name and address of the
property owner and what is prohibited. The signs must be in
exactly the manner specified in statute, and that is too much of
a burden to place on landowners, he opined.
MR. BREESE said, "We're not saying you don't have to put a sign
up, we're just saying that we're going to take out the specifics
of the very specific language that describes how signs must be
posted." What is required in statute is a bit of a burden to
place on someone to have at every access point, he opined.
2:01:45 PM
REPRESENTATIVE GRUENBERG said, "I see where you're going."
The [signage] language is really detailed, and somebody
obviously wanted to be sure that the sign was readable, "but I
can see that a person who owns a homestead or something out in
the middle of nowhere wouldn't know what's in this obscure law
and wouldn't do it." Maybe some new language can require
"reasonable notice," he offered. It can give the landowner the
ability to put "something up somewhere that would provide some
notice," he said, and it could be a general statement to post a
sign. That would make it easy for the landowner, while
providing protection for the person who is crossing the property
without becoming criminals, he stated.
2:03:18 PM
REPRESENTATIVE LEDOUX asked about language that would create a
different standard for hikers than for trappers or hunters. If
a person is hunting, or doing something substantive like that,
the person should know whether or not it is private property.
But for those just wondering in the woods, on a trail or not, it
seems quite a burden to carry around maps.
2:04:33 PM
CHAIR KELLER noted that he was initially uneasy with the
language in HB 375, but he was satisfied because it deals with
Alaska, which is so unique because of the large land area and
the difficulty knowing where there is private land. The answer
is to get a very specific sign there that is so detailed and so
crazy that it obviously does not do any good. Then he read what
was not deleted from the law, and that is [subsection] (a),
which talks about land that is not open to the public. "And I
think that's sufficiently broad that it would allow for signs,
so if I had a piece of property and I didn't want it open to the
public and I posted it, I would like to think that the rational
trooper that came along would take that as land that is not open
to the public."
2:06:02 PM
MR. BREESE expressed his belief that the committee needs to look
at the definitions for criminal trespass in the first and second
degree, AS 11.46.320 and AS 11.46.330. Criminal trespass in the
first degree requires the intent to commit a crime, and criminal
trespass in the second degree requires a person to enter or
remain unlawfully. "I think when you get at the point of
someone just walking across a property and you don't want them
there and you say 'hey, it's my property, can you leave,' and
the person then refuses to leave, I think that elevates it to
the charge of second degree. I think until that point, we're
automatically elevating things to the point where it's a second
degree charge. I think-my opinion is-a judge would evaluate
that and say, you know, if you asked the person to leave and the
person didn't leave and remained on the property, then the
person is then willfully breaking the law and is committing
trespass at that point." He added that attorneys may be able to
address this issue.
2:07:18 PM
CHAIR KELLER suggested taking testimony.
AL BARRETTE, said he opposed HB 375 and he is hearing people
talk about what is rational and reasonable, which are arbitrary
terms. Law is black and white, he stated. There is no cell
phone coverage in the Interior from 10 miles north of Fairbanks,
and GPS devices tell you where you are but not land status, he
added. He said there are RS4277 right-of-ways that are not
surveyed, so the location of the easements are unknown, and
there are waterways with many recreational sites along different
rivers. He stated that he is pro-property rights, and if he
does not want someone on his property he will put up minimum
posting so others will know. It is easy for those who live in a
municipality or a borough to find out property boundaries, but
it is difficult elsewhere. There are new Native lands on the
books and that information will not yet be on any public maps,
he added. He urged the committee to make a clear amendment
without relying on the rationality of people. Reasonable
signage would be appropriate, he stated.
2:10:02 PM
REPRESENTATIVE GRUENBERG said he appreciates what Mr. Barrette
said. He noted that he does not hike or hunt much, but he likes
to be out and many people do. He does not want to criminalize
people for fishing, hiking, or camping, as long as they are not
doing any harm.
REPRESENTATIVE LEDOUX asked about someone hiking on private
property that is not posted, and if the Department of Law would
view that as a prosecutable offense if HB 375 were passed.
ANNE CARPENETI, Attorney, Criminal Division, Alaska Department
of Law (DOL), said that would technically be a violation, but
"we would exercise our discretion under the circumstances."
2:12:19 PM
REPRESENTATIVE LEDOUX asked if the person would be violating the
law of criminal trespass, and then "it would totally be up to
you" on whether to prosecute.
MS. CARPENETI said yes.
REPRESENTATIVE GRUENBERG said there are those who want to be
able to cross land and camp, fish, or hunt, for example. There
is the private owner who wants to preserve land and not have
everybody run around on it. He asked if Ms. Carpeneti had any
suggestions. Subsection (c) looks very technical, and somebody
could say he or she did not trespass because the sign was only
11 by 11 inches instead of the required 12 by 12 inches.
2:13:39 PM
MS. CARPENETI said the DOL does not have a position on this
bill, but she noted that the other body amended a similar bill
to repeal subsection (c) and leave subsection (b) in place.
That would require an owner to either personally notify the
hiker, for example, or to post notice in a reasonably
conspicuous manner under the circumstances, she explained. That
would leave it to be a question of fact whether the posting was
reasonably conspicuous and not have the specific requirements at
every entrance. She noted that that was the issue with the
illegal trappers as one entrance was not posted.
CHAIR KELLER said he considered that idea, but as he looked at
subsection (a), "it looked like it is mostly covered, and it
looks like (b) becomes, at least somewhat, redundant. It just
seemed like so many words, and so that's when I went over the
edge and thought this isn't a bad bill after all."
2:15:33 PM
MS. CARPENETI said subsection (a)(1) is one of the three ways a
person can enter or remain on property unlawfully, "and that is
enter on premises which are not open to public, but it doesn't
require any notice that it's open to the public or not." She
said that is why (b) would not be redundant to (a)(1).
CHAIR KELLER said that the fact that there is a notice would
imply that it is not open to the public. It leaves the option
for the landowner to post a sign, and then it would not be open
to the public, he added.
MS. CARPENETI said he is correct that a person could put up a
sign, but (a)(1) defines "enter or remain unlawfully", which is
talking about entering or remaining unlawfully on property that
is not open to the public but not necessarily posted in any way.
2:16:44 PM
REPRESENTATIVE GRUENBERG added that he thinks (b) is very
helpful, because notice could be personally communicated, and
then a sign is unnecessary. Also, including (b) gives some
direction and will make sure that, if possible, people do put up
some kind of a little sign.
MR. BREESE said that (a)(1) was mentioned, but (a)(2) needs to
be looked at as well if it is to remain in statute. He stated
that (a) defines "enters or remains unlawfully", and it says:
fails to leave the premises of a propelled vehicle or property
that is open to the public after lawfully being directed to do
so. Therefore, if a person can access property without a fence
or something to stop the person, "it seems to be publically
open," he stated. Unless someone is told to leave ... "I think
it's covered in both (a)(1) and (a)(2).
2:18:12 PM
REPRESENTATIVE GRUENBERG said that (a)(1) gets at the question
of whether someone is lawfully directed to leave, and if someone
tells a person to leave, that is one thing. It also covers a
situation where a person did not get any personal direction, but
the property is not open to the public, and (b) describes what
is meant by being open to the public. Even if it is not fenced,
a person can be told in advance [not to enter the property], or
if there is a sign, a person might not be directed to leave
after being on the property, but it shows that it is not open to
the public. He suggested leaving (b) in and just repealing (c).
2:19:49 PM
CHAIR KELLER closed public testimony.
REPRESENTATIVE GRUENBERG asked if the sponsor would accept an
amendment to retain subsection (b).
MR. BREESE said, "If that's the will of the committee."
REPRESENTATIVE GRUENBERG moved to offer Conceptual Amendment 1
as follows: AS 11.46.350(c) is repealed.
2:20:46 PM
CHAIR KELLER objected and said, "I think that (a) covers it. It
is very general and it's very broad. I understand that, but
that's the nature of our land in Alaska. It is very difficult
to know where you're at and what's going on. So I think it's
sufficient."
REPRESENTATIVE LEDOUX said she is uncomfortable with it the way
HB 375 reads now, because it makes a criminal out of someone who
is just trying to take a hike. She realizes that Ms. Carpeneti
said hopefully DOL would use its discretion and there would not
be too many prosecutions, but she is still uncomfortable. She
said she feels better with Representative Gruenberg's amendment.
CHAIR KELLER removed his objection [to Conceptual Amendment 1]
and said he would let the sponsor fix it. There being no
further objections, Conceptual Amendment 1 was adopted.
2:22:55 PM
CHAIR KELLER clarified the amendment.
REPRESENTATIVE GRUENBERG said that [subsection](c) is repealed.
2:23:08 PM
REPRESENTATIVE LYNN moved to report HB 375, as amended, out of
committee with individual recommendations and the accompanying
fiscal notes. There being no objection, CSHB 375(JUD) passed
out of the House Judiciary Standing Committee.