Legislature(2003 - 2004)
05/08/2003 08:07 AM House STA
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 230-POLITICAL SIGNS ON PRIVATE PROPERTY CHAIR WEYHRAUCH announced that the next order of business would be HOUSE BILL NO. 230, "An Act relating to political signs on private property." Number 0409 REPRESENTATIVE HOLM moved to adopt CSHB 230(TRA) as the working document. There being no objection, it was before the committee. REPRESENTATIVE HOLM, speaking as the sponsor of HB 230, provided the following testimony: The ability of citizens to express their political opinion, even to advocate for the same, is a fundamental right. This basic right has become even more pronounced when the expression is made on one's own private property. Currently, the state law prohibits the posting of campaign or political signs within road view or 660 feet, whichever is greater. This applies to federally funded roads and state roads. The restriction includes private property and if you and I were to erect a "No War in Iraq" or "Support Our Troops" sign today, within the distance limits, we would be in violation of state law even though we're electing to utilize our own private words and political free speech. It has been interpreted to say that without sign restriction, political or otherwise, that Alaska may lose federal highway funds by being out of compliance with the restrictions that the Federal Highway [Administration (FHWA)] program puts upon the state of Alaska. The [FHWA] ... on this subject, however, shows that this untrue. We had a letter in the packet that is from the FHWA and relates to that misinformation. REPRESENTATIVE HOLM explained that he introduced HB 230 because during the last campaign and prior campaigns, the Department of Transportation & Public Facilities (DOT&PF) wasn't consistent with its application of rulings or decisions regarding whether it was inappropriate for folks to have political signs on their private property. Those who placed a political sign on their private property that could be seen from public property were considered to be in violation. However, the accusations were that the candidate was breaking the law in these cases. Representative Holm said he felt that it was inappropriate that folks were getting their First Amendment rights trampled on by DOT&PF. He noted that in the House Transportation Standing Committee the legislation was changed in order to help DOT&PF be capable of taking care of problems so as not to clutter Alaska's landscape. Number 0719 CHAIR WEYHRAUCH directed attention to page 2, lines 16-17. He surmised that this legislation is talking about political signs for which most candidates would use a 4X8 piece of plywood, which would amount to 32 feet. REPRESENTATIVE HOLM pointed out that he didn't want tons of signs to be put together to make one large billboard, which lead to the definition specifying that co-joined signs can't be greater than 32 feet. REPRESENTATIVE LYNN commented that one might as well not put up a sign 600 feet from public view, depending upon the configuration of the lot. Representative Lynn turned attention to the letter from Andree McLeod, which is included in the committee, and asked if HB 230 addresses sign vandalism. REPRESENTATIVE HOLM replied no. Number 0893 TODD LARKIN, Staff to Representative Jim Holm, Alaska State Legislature, explained that sign vandalism wasn't addressed in HB 230, although the civil remedy for sign vandalism already exists. Therefore, to give DOT&PF enforcement of sign vandalism seemed redundant. REPRESENTATIVE HOLM told the committee that one of the difficulties in making the choice to enter politics is choosing to go against the opponent who is in power. If the ability of people to, in a less costly manner, get their message out is hindered, the incumbent has a large advantage. Therefore, in order to encourage folks to enter the system and be part of the process, it should be as easy as possible. Number 1045 REPRESENTATIVE SEATON pointed out that one can have private property in a right-of-way, but the individual still owns the property. He noted that in his area great care has been taken to keep everything out of the state right-of-way. Therefore, he asked if Representative Holm would accept a friendly amendment specifying that signs may not be in the state right-of-way. REPRESENTATIVE HOLM directed attention to page 2, line 19. He noted that he has rights-of-way that go over his property, for which he has given easements to various portions of the government; however, that only means he must allow access to the property. Furthermore, the aforementioned shouldn't deny his ability for political free speech with political signs so long as those signs don't obstruct traffic. REPRESENTATIVE SEATON expressed concern with using a subjective definition regarding whether a political sign obstructs, interferes, or confuses [traffic] versus not allowing signs in the known distance of a right-of-way. REPRESENTATIVE HOLM recalled the recent passage of the legislation dealing with memorials and the consideration given regarding whether memorials should be allowed in the public right-of-way. The majority who voted for the memorial legislation determined that it was appropriate [to allow memorials in the public right-of-way]. Since the signs being discussed today would only be in place during the political season, he said he believes it's appropriate to allow political free speech. MR. LARKIN commented that this legislation is quite timid in asking the state to recognize this right on private property. He pointed out that the committee packet should include a supreme court case that addresses "traditional forums." The court found that it's unconstitutional to prohibit this type of [political] free speech in many types of public rights-of-way such as public sidewalks. However, HB 230 only speaks to the use of signs on private property. With regard to the 50 foot right-of-way, DOT&PF already views that as owned property and as this legislation stands a sign can't be placed in that 50 feet of right-of-way. Therefore, he didn't believe there would be the desire to include something that specifically prohibits a [constitutional] right. Number 1399 REPRESENTATIVE GRUENBERG remarked that he likes HB 230, which addresses a really important issue. He asked whether the [committee] should "beef up" the findings to discuss free expression or whether the legislation should be expanded. He related his belief that many Alaskans strongly agree with the right of free speech and protecting it constitutionally as well as statutorily. REPRESENTATIVE SEATON expressed concern that the language speaking to the right-of-way isn't clear. Although on page 1, line 13, the legislation specifies that outdoor advertising may not be erected within 660 feet of the nearest right-of-way, the "added sections" aren't clear. He emphasized that he wanted the provision to be clear in order to avoid each individual candidate approaching DOT&PF to understand the provision. Number 1624 ANDREE McLEOD paraphrased from her written testimony, which read as follows: I've been a victim of political campaign sign vandalism. Fortunately, one of my perpetrators was caught and his accomplice is still officially unidentified. Justice has yet failed to penalize these people and I'm left to wonder how someone can be caught vandalizing campaign signs without remedy to the victim. So, can you please explain where the enforcement provisions are relating to violations of these new political signs on private property laws you're about to put on the books? There's no objection to this bill, but where are the safeguards and protections? What are the fines for violating the political signs on private property laws? If you have basic and inherent laws, you also have to have penalties in place to deter the miscreants in our society from violating those laws. Could you please clarify as to the whereabouts of these remedies. MS. McLEOD acknowledged the previous testimony specifying that civil remedies already exist. However, she informed the committee that she has been going through the process that is available to her and her case has languished in the municipal prosecutor's office. She said she wasn't sure if her case has to do with the mutual support between the perpetrators and the current mayor of Anchorage, as evidenced by their APOC reports. Currently, the ombudsman is reviewing whether there are remedies because it seems the municipal prosecutor can't find any. "What's the sense in putting laws on the books when you can't enforce them," she asked. Number 1789 MICHAEL DOWNING, Director/Chief Engineer, Division of Statewide Design & Engineering Services, Department of Transportation & Public Facilities, explained that the right-of-way functions fall under the division he supervises. He turned to the issue regarding how DOT&PF manages the right-of-way and how it would treat a sign in the right-of-way if the right-of-way included an easement on private property and the underlying fee owner was a private property owner. Mr. Downing explained that DOT&PF holds that all of the highway right-of-way is managed in the same way; that is, DOT&PF has management and control of those lands. The aforementioned has been contested and it has been supported. Therefore, Mr. Downing related that DOT&PF feels it is in a position to manage the highway right-of-way and these signs would be prohibited in the highway right-of-way, under the current language of the legislation. He specified that the department would treat anything within the boundaries of a right-of-way the same. He noted that the state's right-of-way is a patchwork quilt of ownership. REPRESENTATIVE HOLM said that HB 230 was drafted in the hope that it was in concert with the department because there was no intent to effect the department's ability to protect the public. Representative Holm surmised that the department doesn't have any problem with a sign that is within 50 feet or 660 feet [of the right-of-way] unless federal funding is impacted. MR. DOWNING answered that is correct. The department sees a distinction between the highway right-of-way and the private property that is adjacent. The federal Outdoor Advertising Ban and the Federal Highway Beautification Act of 1965 do address the lands that are adjacent out to 660 feet. That prohibition on outdoor advertising in that area extends to signs farther out that are intended to be read from the highway. However, the area beyond the 660 feet gets into private property and [the department] views it differently as does the statutes. REPRESENTATIVE SEATON surmised, "Well, I'm hearing that ... the federal law encompasses this further difference that ... DOT is working within the right-of-way and management within the right- of-way." However, Representative Seaton said he wanted to ensure that the legislation is clear so that when the statute is read the same answer will be apparent to all. Number 2040 REPRESENTATIVE SEATON asked if DOT would have a problem if signs were permitted in the right-of-way. MR. DOWNING answered, "It would be a much greater concern to us." Furthermore, he related his belief that the FHWA would change its position if advertising was allowed within the right- of-way. He suggested that perhaps the addition of a provision specifying "private property exclusive of rights-of-way granted for transportation." Although the department thinks the matter is clear now, he recommended speaking with Jim Cantor, Assistant Attorney General, because he has dealt with a case directly related to this issue. REPRESENTATIVE SEATON interjected that his problem is that he called three different folks in DOT&PF and received three different answers. Therefore, the matter isn't clear. CHAIR WEYHRAUCH related that [political] signs along the [right- of-way] in Juneau are taken down by the state within 24-hours. However, in Anchorage there are many signs in the right-of-way. Number 2169 REPRESENTATIVE HOLM corrected Mr. Downing's testimony by pointing out that there is a difference between free speech and advertising. He said he didn't want free speech and advertising to be treated the same, and therefore this legislation arose. He noted that the two are treated the same under the Federal Highway Beautification Act of 1965. REPRESENTATIVE GRUENBERG characterized this as "constitutionally, a real moving target issue." In fact, a very important case, the "Nike shoe case", was recently argued in the U.S. Supreme Court and is under advisory. This case deals with commercial free speech and the extent of protection there. He predicted that the ramifications of that case will spill over into the [political signage] issues. REPRESENTATIVE SEATON requested that Mr. Downing contact the attorney he mentioned in order to pursue some sort of clarifying language similar to what he suggested. MR. DOWNING answered yes. Number 2265 REPRESENTATIVE GRUENBERG directed attention to AS 19.25.075, which was the result of a 1998 ballot measure. He pointed out that the statutory findings are there, although normally statutory findings are placed in the uncodified law. Therefore, it seems that the findings in HB 230 would be placed in [AS 19.25].075 in order to illustrate that they are as important. REPRESENTATIVE HOLM said that would be fine. REPRESENTATIVE GRUENBERG expressed interest in visiting with Representative Holm and his staff to explore whether this legislation would be used as a reaffirmation of free expression. Number 2389 REPRESENTATIVE LYNN noted that he didn't want to abandon the concern brought up regarding vandalism. He related his view that there are different types of vandalism and that vandalism on a political sign is vandalism against free speech. He expressed the need to address the issue of vandalism before this legislation moves from the committee. MR. DOWNING pointed out that [CSHB 230(TRA)] still has some items that are somewhat undefined, and therefore there will need to be some definition for them eventually. Therefore, he requested some refinement with the terms "temporary" and "currently relevant". Although there is some reluctance to become too specific in statute, eventually there has to be a specific [definition] that will either be made with the department's policy and regulation or in statute. He indicated that placing the [definition] in statute would provide consistency. REPRESENTATIVE HOLM highlighted that in the court cases referenced in the committee packet one can see that there are some specific regulations put in place by various cities and those regulations speak to the lack of constitutionality of placing time limits. The aforementioned is why the legislation was written as it is. CHAIR WEYHRAUCH summarized that three issues have arisen: enforcement issues, free speech, and right-of-way issues. He requested that Representative Holm work with the members on these issues. He then set aside HB 230. REPRESENTATIVE GRUENBERG requested a copy of the opinion [from the department's attorney] as well as any suggested amendments. [HB 230 was taken up later in the meeting.] HB 230-POLITICAL SIGNS ON PRIVATE PROPERTY CHAIR WEYHRAUCH returned the committee's attention to HOUSE BILL NO. 230, "An Act relating to political signs on private property." Number 2292 REPRESENTATIVE GRUENBERG said that he was going to suggest that the findings of HB 230 be placed in statute AS 19.25.075 like the other legislative findings, as was discussed this morning. REPRESENTATIVE HOLM characterized the above as a friendly amendment. JAMES CANTOR, Assistant Attorney General, Transportation Section, Civil Division (Anchorage), Department of Law, said Representative Gruenberg's suggestion makes sense. CHAIR WEYHRAUCH recalled that AS 19.25.075 was adopted by the people of the state pursuant to a referendum. MR. CANTOR replied yes. CHAIR WEYHRAUCH pointed out that AS 19.25.075 is entitled, "Findings and intent of the people of the State of Alaska." Therefore, he asked if the legislature does this, would it be different than the people. REPRESENTATIVE GRUENBERG clarified that the [findings of HB 230] would be a subsection (c). Conceptually, Representative Gruenberg suggested changing the title of AS 19.25.075 such that it would be entitled, "Findings and intent" and subsections (a) and (b) would remain the same with subsection (c) and paragraphs (1) and (2) under Section 1 of CSHB 230(TRA). CHAIR WEYHRAUCH said that this is partly a policy question [for] Representative Holm and a legal question [for] Mr. Cantor. MR. CANTOR said this is a bit outside his expertise. However, he recalled that there is a period of time after which the legislature can revise referendums. REPRESENTATIVE GRUENBERG clarified his conceptual amendment as follows. He explained that the title of AS 19.25.075 would be changed to read, "Findings and intent". Under AS 19.25.075 subsections (a) and (b) would remain as is while a subsection (c) would be inserted. Therefore Section 1 of CSHB 230(TRA) would read: *Section 1. AS 19.25.075 is amended to read: (c) The Alaska State Legislature finds that (1) the right to advocate for or against those individuals who would occupy public office and issues of public interest is an inherent right that has been repeatedly affirmed by the courts; and (2) the right to advocate for or against those individuals who would occupy public office and issues of public interest must be subject to only the minimum of restrictions necessary to address a compelling public or government interest. CHAIR WEYHRAUCH announced, "Without objection, that amendment has been made conceptually." Number 2600 MR. CANTOR recalled that this morning there was a question regarding what happens when the Department of Transportation & Public Facilities (DOT&PF) has an easement and a private property owner owns that land underneath that easement. Currently, that is being litigated with commercial signs. Mr. Cantor related that DOT&PF would suggest that the committee include language specifying that private property doesn't include that portion of property subject to an easement for public transportation. Also, Mr. Cantor said that the definitions of "current relevance" and "date of decision" may allow commercial speech and thus he suggested the following: Page 2, line 25, before "matter": Insert "noncommercial" Page 2, line 25: Delete "or" Insert "and" MR. CANTOR turned to the Nike case related to indirect advertising for commercial products and noted that the committee could consider adding in language that prohibits indirect advertising for commercial products. Mr. Cantor moved to page 2, line 18, and related that [the "date of decision" definition] leaves DOT&PF with an uncomfortable decision to try to decide when a public matter is terminated. Therefore, he suggested specifying a time limit for temporary signs and requiring that signs be dated when erected. CHAIR WEYHRAUCH related his understanding that political signs have to be taken down right after the election or there is a fine. MR. CANTOR said no and pointed out that such signs aren't allowed on private property. This legislation may handle the election issue, there are "issues" that this could address. Number 2779 REPRESENTATIVE HOLM emphasized that there is a difference between commercial speech and political free speech constitutionally. He agreed with Mr. Cantor that commercial speech has its place to be regulated. However, to assert that political free speech has a time limit is inappropriate. Representative Holm inquired as to the widest right-of-way that the state takes of private property in the state. MR. CANTOR clarified that many of the widths were established by public land orders. He noted that he could think of some rights-of-way that are 300 feet. In further response to Representative Holm, Mr. Cantor said that the distance from the center line to the edge of the right-of-way would depend upon the type of roadway. He recalled that the Old Seward Highway in Anchorage is 150 feet on either side of the center line. However, in a number of locations the state holds easements. REPRESENTATIVE GRUENBERG, upon determining that this is the last committee of referral, offered to work with Representative Holm in handling [Mr. Cantor's suggestions]. Number 2951 TODD LARKIN, Staff to Representative Jim Holm, Alaska State Legislature, expressed the need to be ready for the next election season. If this first step is put on the books, then any problems could be addressed [as they come up]. TAPE 03-59, SIDE B Number 2985 REPRESENTATIVE GRUENBERG indicated that this could be worked on during the interim. REPRESENTATIVE HOLM emphasized that this [legislation] is very important to him because this is a First Amendment right that has been poorly and inconsistently handled over time. Therefore, he expressed the need to deal with this matter before the next election season. He suspected that this legislation will be worked on in the Senate, which will take some time. REPRESENTATIVE GRUENBERG remarked that seldom has the legislature had legislation dealing with freedom of expression. REPRESENTATIVE LYNN mentioned that perhaps [Representative Gruenberg's idea of dealing with freedom of expression] could be dealt with in another piece of legislation over the interim. REPRESENTATIVE GRUENBERG requested that Mr. Cantor's suggestions be reviewed and asked if the legislation could be held over night. REPRESENTATIVE HOLM noted he was amenable to the above. [HB 230 was held over.]
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