Legislature(2021 - 2022)BUTROVICH 205

04/12/2021 01:30 PM JUDICIARY

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Heard & Held
Heard & Held
Moved CSSB 9(JUD) Out of Committee
-- Public Testimony --
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**Streamed live on AKL.tv**
            SB 82-ELECTIONS; ELECTION INVESTIGATIONS                                                                        
1:37:43 PM                                                                                                                    
CHAIR REINBOLD announced the consideration  of SB 82, SENATE BILL                                                               
NO.   82,   "An   Act  relating   to   elections   and   election                                                               
1:38:23 PM                                                                                                                    
CORI  MILLS, Senior  Assistant Attorney  General,  Labor &  State                                                               
Affairs  Section,  Civil  Division, Department  of  Law,  Juneau,                                                               
Alaska, on  behalf of the  administration, began a  PowerPoint on                                                               
SB  82.  She said  the  purpose  of SB  82  is  to authorize  the                                                               
attorney general  to conduct  civil investigations  into election                                                               
law  violations  and to  bring  civil  enforcement actions  if  a                                                               
violation is found.                                                                                                             
1:39:28 PM                                                                                                                    
MS.  MILLS turned  to slide  3.  She highlighted  that under  the                                                               
current  Title   15,  Chapter  13,  the   Alaska  Public  Offices                                                               
Commission (APOC) handles campaign  finance violations. This bill                                                               
relates  to initiatives,  petitions to  gather signatures,  voter                                                               
residency  and candidate  filings. Currently  if the  Division of                                                               
Elections identifies suspicious behaviors  related to an absentee                                                               
ballot application or someone files  a complaint, the only option                                                               
the division  has is to  refer it for criminal  investigation and                                                               
prosecution.   However,   the   division  does   not   have   any                                                               
investigative authority. This bill  would create another tool for                                                               
the division to  use when it identifies  any suspicious behavior.                                                               
This bill  would give the  Department of Law  civil investigative                                                               
powers similar to consumer protection investigations.                                                                           
1:40:49 PM                                                                                                                    
MS.  MILLS  explained  that   civil  investigations  differ  from                                                               
criminal investigations in  a number of ways.  First, the process                                                               
for civil  cases is not as  lengthy as criminal cases.  Next, the                                                               
evidentiary standard of  proof differs. The state  must adhere to                                                               
constitutional standards in criminal  cases since the state could                                                               
potentially   take  away   someone's  freedom.   The  evidentiary                                                               
standard of proof in criminal  cases is beyond a reasonable doubt                                                               
whereas  civil cases  use a  preponderance of  evidence standard.                                                               
This means  the state must prove  it is more likely  than not the                                                               
conduct happened  or that the  action was unlawful.  Finally, the                                                               
flow of information is different.  In civil cases, it is possible                                                               
to  acquire   information  to  assist  the   division  in  making                                                               
determinations that  the director must make  by statute. However,                                                               
in  criminal cases,  law enforcement  holds this  confidential so                                                               
the division may  not hear about it until charges  are filed. She                                                               
characterized this as providing another  layer of tools for civil                                                               
1:42:29 PM                                                                                                                    
SENATOR MYERS  wondered if this  structure allows  the department                                                               
to move a case from civil to criminal.                                                                                          
MS.  MILLS   answered  yes.  SB   82  will  not   limit  criminal                                                               
investigations  or  prosecutions  because  the  department  could                                                               
conduct   concurrent   investigations.   She  stated   that   the                                                               
department needs to  be mindful of when evidence  can be gathered                                                               
for   both  investigations   and   when  it   must  be   gathered                                                               
independently. DOL  can determine which avenue  is appropriate or                                                               
if both are warranted.                                                                                                          
1:43:43 PM                                                                                                                    
SENATOR SHOWER asked whether law  enforcement will get additional                                                               
training on  election laws and  procedures and conversely  if the                                                               
Division  of  Elections  will  get  additional  training  on  law                                                               
enforcement procedures.                                                                                                         
MS. MILLS explained  that these cases will be  investigated by an                                                               
investigative  unit within  the  Department of  Law. These  cases                                                               
will  be  handled  similarly  to   how  the  department  conducts                                                               
consumer protection  cases unless the  cases are referred  by the                                                               
Alaska State  Troopers for  criminal prosecution.  DOL's consumer                                                               
protection  investigators  are  trained  on  civil  investigative                                                               
techniques.  She  did not  recall  if  it  was by  regulation  or                                                               
policies  and procedures.  It makes  sense to  create this  civil                                                               
layer  for  election  violations  since AST  may  not  prioritize                                                               
election violations as high as some criminal cases.                                                                             
1:46:17 PM                                                                                                                    
SENATOR SHOWER  asked if  she could report  back on  whether this                                                               
will be  codified or  set by policy.  He highlighted  his concern                                                               
that policies often change with each administration.                                                                            
MS. MILLS agreed to do so.                                                                                                      
1:47:01 PM                                                                                                                    
SENATOR  KIEHL asked  what efforts  would  be made  to train  the                                                               
Division of Election staff on pre-investigative techniques.                                                                     
MS.  MILLS   answered  that   determinations  on   complaints  or                                                               
allegations would be  made by the division,  in consultation with                                                               
DOL, as to whether the  allegation is true, whether the complaint                                                               
is  considered a  legal violation,  a frivolous  complaint or  in                                                               
compliance  with the  law. The  Division of  Elections would  not                                                               
conduct  a  pre-investigation  since   they  are  not  given  any                                                               
investigative  authority in  this bill.  She commented  that this                                                               
was intentional and she would be happy to elaborate.                                                                            
1:48:15 PM                                                                                                                    
SENATOR  KIEHL  said  it  would   be  helpful  to  know  why  the                                                               
complaints must be  filed with the Division of  Elections if that                                                               
agency will not decide if the complaints are valid.                                                                             
1:48:29 PM                                                                                                                    
SENATOR SHOWER  expressed concern  about whether the  Division of                                                               
Election staff  will have  adequate training  so staff  will know                                                               
what to look for and how to respond to the allegations.                                                                         
MS. MILLS offered to try to address some of the points.                                                                         
1:49:20 PM                                                                                                                    
MS.   MILLS  said   many  models   exist  for   housing  election                                                               
investigations. Election  investigations could  be housed  in the                                                               
Secretary of  State's office, which  in Alaska is  the lieutenant                                                               
governor's office;  the Board of  Elections for states  without a                                                               
division; or  in the  attorney general's  office. The  reason the                                                               
administration decided  to house  the election  investigations in                                                               
the  attorney general's  office  is because  DOL  uses a  similar                                                               
process  for  consumer protection  complaints.  Since  DOL has  a                                                               
criminal  division, it  can collaborate  with the  civil division                                                               
due  to  confidentiality  in  the department.  It  is  more  cost                                                               
effective to use  the existing structure rather  than creating an                                                               
entirely new infrastructure within the Division of Elections.                                                                   
1:51:08 PM                                                                                                                    
MS.  MILLS reviewed  slide  6, which  listed  two examples  where                                                               
civil  investigations and  enforcement  actions  could have  been                                                               
beneficial.  The first  example  related  to suspicious  absentee                                                               
ballot applications in  the 2018 House District 15  case that led                                                               
to  criminal  charges being  filed.  Initially,  the Division  of                                                               
Elections  received suspicious  absentee ballots  with anomalies,                                                               
including  signatures  that looked  the  same,  or a  substantial                                                               
number  of  people  appeared  to  live in  one  motor  home.  The                                                               
Division of  Elections began working  with the  criminal division                                                               
and  law   enforcement,  which  was  appropriate.   However,  the                                                               
Division of  Elections lacked the authority  to determine whether                                                               
these voters were  valid voters and who  signed the applications.                                                               
If DOL's  civil division  had an  investigator with  authority to                                                               
conduct election investigations, the  Division of Elections could                                                               
have referred  the names on  the suspicious ballots to  the civil                                                               
division's investigator.  One outcome is  the case may  have been                                                               
resolved much  more quickly. It may  have been possible to  go to                                                               
court to force compliance for any violations.                                                                                   
1:52:34 PM                                                                                                                    
SENATOR  HUGHES  asked  for  clarification   on  when  cases  are                                                               
considered civil or criminal because  she tends to think of civil                                                               
cases  as between  two  parties. If  SB 82  were  law, she  asked                                                               
whether it would it be necessary  for a party to file a complaint                                                               
to initiate action or if the  case could be triggered by election                                                               
staff observing suspicious behavior and reporting it.                                                                           
MS.  MILLS answered  the latter.  If the  Division of  Election's                                                               
staff identified  suspicious activity,  the division  could refer                                                               
the issue  to the DOL's  civil division. The  investigation would                                                               
be  held confidential  until the  civil division  acquired enough                                                               
evidence to go to court and file an action.                                                                                     
SENATOR HUGHES asked if the  Division of Elections would file the                                                               
civil complaint.                                                                                                                
MS.  MILLS acknowledged  that was  correct. Just  as in  consumer                                                               
protection cases,  DOL would investigate the  case. Sometimes DOL                                                               
will  alert  parties  about a  violation  and  achieve  voluntary                                                               
compliance. Otherwise, the attorney general  would file a case on                                                               
behalf  of  the  Division  of   Elections  but  the  division  of                                                               
elections would be involved.                                                                                                    
SENATOR  HUGHES asked  for  a list  if  activities covered  under                                                               
APOC's  jurisdiction and  to identify  any gaps  that would  fall                                                               
under DOL's civil division.                                                                                                     
1:55:55 PM                                                                                                                    
SENATOR SHOWER referred to the  scenario on slide 6. He expressed                                                               
concern that in the process  of seeking voluntary compliance, the                                                               
civil division  would need  to alert  the violator.  He expressed                                                               
concern that once  the violator is alerted that the  case will be                                                               
pursued as a civil case, the  violator will not be prosecuted for                                                               
the crime. He asked how confidentiality is maintained.                                                                          
MS.  MILLS said  that  illustrates another  reason  to house  the                                                               
election  investigations in  the attorney  general's office.  She                                                               
said  DOL   handles  civil  and  criminal   Medicaid  fraud.  She                                                               
acknowledged that it  is important to be  careful when proceeding                                                               
with the investigations to avoid  alerting the bad actor in cases                                                               
that should  be criminally  enforced. There  may be  aspects that                                                               
need to be referred as criminal cases.                                                                                          
SENATOR SHOWER asked who would make the referrals.                                                                              
MS.  MILLS answered  that  the attorney  general  would make  the                                                               
1:57:58 PM                                                                                                                    
CHAIR REINBOLD asked  if there are penalties in  place if someone                                                               
informs the violator.                                                                                                           
MS. MILLS  answered that  the state  has laws  it can  enforce if                                                               
someone   tips   off  a   violator,   such   as  obstructing   an                                                               
investigation,  which would  apply to  civil and  criminal cases.                                                               
She offered  to research the  specific statutes that  would apply                                                               
and report back to the committee.                                                                                               
1:58:56 PM                                                                                                                    
MS.  MILLS  referred  to  the  second example  on  slide  6,  the                                                               
signature  gathering for  the oil  and gas  initiative 190GTX.  A                                                               
lawsuit  was filed  after the  lieutenant governor  certified the                                                               
oil  and  gas  signatures.  The  lawsuit  alleged  that  petition                                                               
gatherers  were receiving  more  than one  dollar per  signature,                                                               
which is prohibited by statute. She  said she would set aside the                                                               
interpretation  question  on  whether  signature  gatherers  were                                                               
being paid  too much.  The complainant came  forth just  prior to                                                               
the lieutenant  governor's decision  to certify the  petition. At                                                               
the time, if DOL had had  the civil investigative tools in place,                                                               
the complaint  could have  been referred  to the  civil division.                                                               
The department  could have  resolved the  case more  quickly, she                                                               
said.  The  department  could  have  reviewed  the  contracts  to                                                               
determining if  they were  in violation of  the law.  The lawsuit                                                               
process required filing discovery to acquire that information.                                                                  
2:00:36 PM                                                                                                                    
MS. MILLS  discussed the complaint  referral process on  slide 7.                                                               
The  attorney general  would also  have independent  authority to                                                               
conduct  investigations.  Under  SB   82,  once  a  complaint  is                                                               
received, the  division will review  the complaint  and determine                                                               
whether it warrants investigation. If  not, the complaint will be                                                               
dismissed. If the complaint merits  further review, the complaint                                                               
will be forwarded to the  attorney general's office. The attorney                                                               
general  has discretion  to conduct  an  investigation, which  is                                                               
similar to  law enforcement or  prosecutorial discretion.  If the                                                               
attorney general is inundated with  complaints, the cases will be                                                               
2:02:49 PM                                                                                                                    
SENATOR HUGHES  asked for assurance  that the  determination will                                                               
be objective  rather than subjective.  She asked if  the Division                                                               
of Elections will have access  to legal advice for its assessment                                                               
process. She said  she would prefer strict  criteria be developed                                                               
that the division must follow.                                                                                                  
MS.  MILLS  answered  that  the   bill  provides  a  standard  to                                                               
determine if the  complaint is frivolous or alleges  some type of                                                               
violation. It's  possible that someone  might think an  action or                                                               
behavior constitutes  a violation  or is illegal  but it  is not.                                                               
The division  will consult  with the Department  of Law  (DOL) on                                                               
these matters.                                                                                                                  
2:04:20 PM                                                                                                                    
THOMAS  FLYNN,   Assistant  Attorney  General,   Information  and                                                               
Project  Section, Department  of Law,  Anchorage, Alaska,  stated                                                               
that  [AS  15.56.140]   (l)  in  SB  82   defines  frivolous.  He                                                               
characterized  the definition  as a  standard definition  in law,                                                               
including in Civil Rule 11. It read:                                                                                            
     (1) "frivolous" means                                                                                                      
          (A) not reasonably based on evidence or on                                                                            
          existing   law   or    a   reasonable   extension,                                                                    
         modification, or reversal of existing law; or                                                                          
          (B) brought to harass the subject of the                                                                              
          complaint or to cause unnecessary delay or                                                                            
          needless expense;                                                                                                     
2:04:49 PM                                                                                                                    
SENATOR HUGHES stated  that the Division of  Election's staff are                                                               
not attorneys. She  asked what assurances could be  made that the                                                               
division staff will be trained or  if they will seek legal advice                                                               
from DOL.                                                                                                                       
MS. MILLS answered that currently  DOL's attorney assigned to the                                                               
Division of Elections  works very closely with  the division. She                                                               
assured members that  the division does not  take actions without                                                               
consulting with the DOL. Further,  DOL works with the division on                                                               
pamphlets  and procedures  used when  determining which  votes to                                                               
count or  not count.  She said she  anticipates DOL  will provide                                                               
the  division with  examples  of  how the  statute  works so  the                                                               
division could consistently implement  the statute. She clarified                                                               
that the division director would be making these decisions.                                                                     
2:06:26 PM                                                                                                                    
SENATOR SHOWER  expressed concern about the  number of complaints                                                               
that  the division  and  the attorney  general  could handle.  He                                                               
asked whether the penalty provisions will be codified.                                                                          
MS.  MILLS  responded that  two  types  of penalties  apply.  One                                                               
addresses compliance,  the second  would require  paying attorney                                                               
fees and costs  if DOL prevails in the lawsuit.  In addition, DOL                                                               
could enforce civil penalties against  the complainant as ordered                                                               
by  a court.  Civil penalties  can  range from  zero to  $25,000,                                                               
depending on the severity of the violation.                                                                                     
2:07:27 PM                                                                                                                    
SENATOR SHOWER asked again how  DOL would handle large numbers of                                                               
complaints, in terms of training or prosecution.                                                                                
MS. MILLS answered  that the Division of Elections  already has a                                                               
high  volume  of  complaints. The  division  anticipates  it  can                                                               
continue  to handle  the  complaints. She  pointed  out that  DOL                                                               
prepared a fiscal  note for the referrals to  the department. She                                                               
explained it already  takes more than one attorney  to assist the                                                               
division in peak  times. DOL currently has an  election team. She                                                               
said   DOL  would   need   additional   resources  including   an                                                               
investigator  and an  additional attorney.  The department  would                                                               
use its  consumer protection  investigator as  part of  the team.                                                               
She anticipated  that complaints  will be made  post-election and                                                               
during the  initiative process. She explained  that DOL envisions                                                               
that  both  investigators  would   be  cross  trained  to  handle                                                               
election or consumer protection complaints.                                                                                     
2:09:45 PM                                                                                                                    
SENATOR KIEHL asked for the  volume of complaints the Division of                                                               
Elections anticipates.  He expressed concern that  the provisions                                                               
in SB  82 will provide  an avenue  for campaigns to  attack their                                                               
MS. MILLS deferred to Ms. Fenumiai to respond.                                                                                  
2:10:49 PM                                                                                                                    
GAIL  FENUMIAI, Director,  Division of  Elections, Office  of the                                                               
Lieutenant Governor, Juneau, Alaska,  responded that she does not                                                               
have  the means  to  predict  the number  of  complaints but  she                                                               
believes  that  the division,  in  consultation  with DOL,  could                                                               
handle them.                                                                                                                    
2:11:31 PM                                                                                                                    
SENATOR KIEHL  referred to the  complaint process shown  on slide                                                               
7. When  a complaint  is received by  the division,  the division                                                               
will make a determination whether the complaint is frivolous. He                                                                
asked whether an aggrieved complainant is entitled to an appeal.                                                                
MS. MILLS responded that currently  the bill does not provide for                                                               
an  appeal  process  but the  attorney  general  has  independent                                                               
authority,  so  a  complainant could  informally  appeal  to  the                                                               
attorney general.                                                                                                               
2:13:06 PM                                                                                                                    
MR. FLYNN provided a sectional analysis of the bill. He                                                                         
summarized the bill as follows [original punctuation provided]:                                                                 
     This bill  would add a  section to the  Elections Title                                                                    
     15 chapter 56.                                                                                                             
     Subsection (a)  would allow anyone  can file  a written                                                                    
     complaint alleging  a violation of state  election laws                                                                    
     or  regulations  to  the  Division  of  Elections.  The                                                                    
     complaint  must  be  filed  within  30  days  after  an                                                                    
     election  or  30  days   after  the  alleged  violation                                                                    
     occurred, whichever is later.                                                                                              
     Subsection  (b) directs  the Division  of Elections  to                                                                    
     refer  alleged  violations  of  campaign  finance  laws                                                                    
     under AS 15.13 to  the Alaska Public Offices Commission                                                                    
     (APOC). The  division has the  discretion to  refer all                                                                    
     other  complaints  to  the  attorney  general.  If  the                                                                    
     complaint is incomplete, frivolous,  or does not allege                                                                    
     a  violation,  the   division  can  request  additional                                                                    
     information or it could dismiss the complaint.                                                                             
2:13:59 PM                                                                                                                    
     Subsection   (c)  allows   the   attorney  general   to                                                                    
     investigate  an  alleged   violation  identified  by  a                                                                    
     complainant, the division, or the attorney general.                                                                        
     Subsection  (d)  authorizes  the  attorney  general  to                                                                    
     conduct an  investigation by subpoenaing  witnesses for                                                                    
     documents,   holding  hearings   under  oath,   sending                                                                    
     interrogatories and examining records.                                                                                     
     Subsection   (e)   provides   that   the   records   or                                                                    
     intelligence resulting from  the investigations are not                                                                    
     public records,  except that  the attorney  general may                                                                    
     issue   statements  describing   the  activities   that                                                                    
     violate election law.                                                                                                      
     Subsection (f)  directs the attorney general  to inform                                                                    
     the  Division  of  Elections  of   the  results  of  an                                                                    
     investigation with  the option  to submit a  report. If                                                                    
     the complaint  against a state  agency or  employee has                                                                    
     merit,  the   division  will   make  efforts   to  take                                                                    
     corrective   action.  The   records  and   intelligence                                                                    
     information  resulting  from the  investigation  remain                                                                    
     confidential unless  they are  submitted to a  court or                                                                    
     used  by the  division as  the  basis for  a course  of                                                                    
2:14:56 PM                                                                                                                    
     Subsection (g)  allows the attorney general  to sue for                                                                    
     injunctive relief after  the investigation provided the                                                                    
     alleged  violation  is  not  a  violation  of  campaign                                                                    
     finance laws.                                                                                                              
     Subsection (h)  allows the attorney  general to  seek a                                                                    
     civil penalty  of not more  than $50,000  per violation                                                                    
     along  with reasonable  fees and  costs, including  the                                                                    
     cost of the investigation.                                                                                                 
     Subsections  (i) and  (j) allow  the  division and  the                                                                    
     attorney  general  to  adopt regulations  to  implement                                                                    
     this section.                                                                                                              
     Subsection  (k) clarifies  that the  person filing  the                                                                    
     complaint may also file an  independent civil action in                                                                    
     superior court.                                                                                                            
     Subsection  (l)  defines  frivolous, state  agency  and                                                                    
     state employee.                                                                                                            
2:16:01 PM                                                                                                                    
SENATOR HUGHES  asked whether the requirement  that complaints be                                                               
filed within  30 days  of an election  were adequate.  She stated                                                               
that tight  races are  often not  decided quickly.  She suggested                                                               
that DOL could respond at the next hearing.                                                                                     
[SB 82 was held in committee.]                                                                                                  

Document Name Date/Time Subjects
SB 82 Presentation.4.12.21.pdf SJUD 4/12/2021 1:30:00 PM
SB 82
SB 82 Sponsor Statement version A.pdf SJUD 4/12/2021 1:30:00 PM
SB 82
SB 82 version A.PDF SJUD 4/12/2021 1:30:00 PM
SB 82
SB 82 Sectional Analysis version A.pdf SJUD 4/12/2021 1:30:00 PM
SB 82
SB 82 Law Fiscal Note.pdf SJUD 4/12/2021 1:30:00 PM
SB 82
SB15 Amdnement G.5 Hughes.pdf SJUD 4/12/2021 1:30:00 PM
SB 15
SB15 Amendment G.6 Hughes.pdf SJUD 4/12/2021 1:30:00 PM
SB 15
SB15 amendment G.3 Kiehl.pdf SJUD 4/12/2021 1:30:00 PM
SB 15