Legislature(2001 - 2002)
04/22/2002 02:23 PM House FIN
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* first hearing in first committee of referral
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HOUSE FINANCE COMMITTEE
April 22, 2002
2:23 P.M.
TAPE HFC 02 - 89, Side A
TAPE HFC 02 - 89, Side B
CALL TO ORDER
Co-Chair Williams called the House Finance Committee meeting
to order at 2:23 P.M.
MEMBERS PRESENT
Representative Bill Williams, Co-Chair
Representative Eric Croft
Representative John Davies
Representative Richard Foster
Representative John Harris
Representative Bill Hudson
Representative Ken Lancaster
Representative Carl Moses
Representative Jim Whitaker
MEMBERS ABSENT
Representative Eldon Mulder, Co-Chair
Representative Con Bunde, Vice-Chair
ALSO PRESENT
Representative Lesil McGuire; Heather Brakes, Staff, Senator
Gene Therriault; Mike Tibbles, Staff, Representative
Williams; Anne Carpeneti, Assistant Attorney General, Legal
Services Section, Criminal Division, Department of Law; Pat
Davidson, Director, Division of Budget and Audit; Catherine
Reardon, Director, Division of Occupational Licensing,
Department of Community and Economic Development
PRESENT VIA TELECONFERENCE
Linda Wilson, Deputy Director, Alaska Public Defender
Agency, Department of Administration, Anchorage; Ed Sniffen,
Assistant Attorney General, Department of Law, Anchorage;
Les Gara, Private Attorney, Consumer Protection, Anchorage
SUMMARY
HB 350 An Act relating to terroristic threatening.
HB 350 was HEARD and HELD in Committee for further
consideration.
HB 385 An Act relating to the attorney fees and costs
awarded in certain court actions relating to
unfair trade practices; and amending Rules 54, 79,
and 82, Alaska Rules of Civil Procedure.
CS HB 385 (JUD) was reported out of Committee with
a "do pass" recommendation and with fiscal note #1
by the Department of Law.
SB 244 An Act extending the termination date of the Board
of Examiners in Optometry; and relating to
optometrists.
CS SB 244 (RLS) was reported out of Committee with
a "do pass" recommendation and with fiscal note #1
by the Department of Community & Economic
Development.
#SB244
SENATE BILL NO. 244
An Act extending the termination date of the Board of
Examiners in Optometry; and relating to optometrists.
HEATHER BRAKES, STAFF, SENATOR GENE THERRIAULT, testified in
support of the legislation. She noted that SB 244 would
extend the termination date of the board, make some
statutory changes allowing the board to more effectively
license by credentials, update the continuing education
requirements to bring them in line with current practice and
regulation, replace the State practical exam with the
National Board of Examiners in Optometry examination, and
would implement an Alaska Jurisprudence exam.
The audit was conducted under Alaska Statutes Title 24 & 44
and the objectives were:
· To determine if the termination date of the board
should be extended;
· To determine if the board is operating in the public
interest; and
· To determine if the board has exercised appropriate
regulatory oversight of licensed optometrists.
Ms. Brakes stated that the Division of Legislative Audit
(LBA) found that the Board of Examiners in Optometry should
th
be extended to June 30, 2006, which would be a standard
four-year extension. Auditors found the regulation and
licensing of qualified optometrists necessary to protect the
public's health, safety, and welfare and that the board
assists in providing that public benefit by establishing
minimum educational and work experience standards for
licensure.
Ms. Brakes noted that on Page 7 of the report, the findings
and recommendations of the auditor were indicated. On Page
15, there is a response to the recommendations from that
Division. She noted that SB 244 had been drafted based on
those findings and recommendations and attempts to implement
that information. It would:
· Extend the Board to June 30, 2006, the standard four-
year extension as recommended by the audit report
released on December 5, 2001 by the Legislative Budget
and Audit Committee;
· Allow the division to retain a photograph of an
applicant for future identification;
· Eliminate the State practical exam, and gives the board
authority to administer an Alaska jurisprudence
examination;
· Implement full licensure by credentials; and
· Update the statutes regarding continuing education by
bringing them in line with current practice.
Representative Whitaker referenced Page 1, Line 11, that
the Department may require the applicant "to submit a
photograph". He asked what the reason for that was.
Ms. Brakes replied that had been a prior audit
recommendation made in 1995 when the board was up for sunset
review the last time. The Division of Legislative Audit
often makes a finding and recommendation when they are
reviewing the boards and commissions. The audit recommended
that the board not require that a photo be submitted. The
bill was originally drafted that way, however, in the Senate
Labor and Commerce Committee, the new language was worked
out. The photograph will not be forwarded to the board for
licensure consideration. The Department of Community &
Economic Development can retain it for later identification
but it is not something that needs to be considered
Representative Whitaker asked if there was concern that
there could be bias based upon someone's looks.
Ms. Brakes replied that there was no evidence of that. That
is a protection of the board and it would keep any
accusations removed from it. She requested that Pat
Davidson be allowed to testify regarding that concern.
PAT DAVIDSON, DIRECTOR, DIVISION OF LEGISLATIVE AUDIT,
responded that generally, LBA attempts to eliminate any
opportunity for a bias to come into the evaluation for
licensure. There was not evidence with this board that
there was bias. Whenever there is licensure that has a
subjected element, those opportunities are eliminated.
There have been requests raised that it would be "nice" to
have pictures of who your licensee is. It is just essential
that the photograph does not accompany the application.
Representative Whitaker asked if the language was clear
enough.
Ms. Davidson replied that it was. The language allows the
Division of Occupational Licensing to have a photograph in
their files, but it keeps that photo from going to the board
for the license decision.
Representative Whitaker asked if "may" should be replaced by
"shall".
Ms. Davidson reiterated that it was clear as written.
Representative Davies interjected incorporating the "not"
makes the "may" and the "shall" the same. He inquired what
the essence of the compromise was.
Ms. Davidson replied that it was a two-fold compromise for
examinations and investigation purposes. She noted that she
supported the compromise.
Representative Lancaster asked why a photo was being
required.
Ms. Davidson explained that has been an on-going requirement
and looking back, the applicant was frequently requested to
submit a photograph.
Representative Hudson questioned if the requirement was
being eliminated for all professional licensing.
Ms. Davidson replied that for most of the audits that LBA
provides a sunset for, most of the requests for photos have
been eliminated. However, there are licenses and
registrations still done that require photos that have not
yet been addressed. She acknowledged that it is currently a
"mixed bag".
CATHERINE REARDON, DIRECTOR, DIVISION OF OCCUPATIONAL
LICENSING, DEPARTMENT OF COMMUNITY AND ECONOMIC DEVELOPMENT,
offered to answer questions of the Committee.
Representative Lancaster MOVED to report CSSB 244 (RLS) out
of Committee with individual recommendations and with the
accompanying fiscal note.
Co-Chair Williams asked that the MOTION be WITHDRAWN.
Representative Lancaster WITHDREW the MOTION.
MIKE TIBBLES, STAFF, REPRESENTATIVE WILLIAMS, noted that he
had been working with the drafters of the legislation. He
indicated that the Committee could make a conceptual
amendment to the bill if interested into existing statute,
on Page 2, Section 4, Line 15. He pointed out that #1 is a
requirement that person have an educational equivalent of
four years attendance at a State high school. He understood
that the intent was that a student could also have a general
education diploma (GED) to qualify. However, under the word
"State", the GED would not qualify. He suggested that
language be rephrased in order that, later, it is not a
potential problem.
Representative Hudson asked if they would have to be in a
certified high school.
Mr. Tibbles replied that a person could have a GED or degree
from any high school and then it would be a certified
graduate program.
Representative Croft suggested language "had an education
equivalent to" indicated that it should be okay. The GED
could be the education equivalent.
Mr. Tibbles offered to check to make sure that was the
intent with Legislative Legal Services.
Representative Croft noted for the record that there are
many things that could be the equivalent to four years of
high school including GED's, private schools and the
military.
Representative Lancaster MOVED to report CS SB 244 (RLS) out
of Committee with individual recommendations and with the
accompanying fiscal note. There being NO OBJECTION, it was
so ordered.
CS SB 244 (RLS) was reported out of Committee with a "do
pass" recommendation and with fiscal note #1 by the
Department of Community & Economic Development.
HOUSE BILL NO. 385
An Act relating to the attorney fees and costs awarded
in certain court actions relating to unfair trade
practices; and amending Rules 54, 79, and 82, Alaska
Rules of Civil Procedure.
REPRESENTATIVE ERIC CROFT, SPONSOR, spoke in support of the
bill. He noted that the controversial aspect of the
legislation had been amended in the House Judiciary
Committee. What is left of the bill allows the attorney
general's office, when they fully prosecute the consumer
protection claim and prevail, to recover their costs.
Consequently, if someone has been defrauding the public and
after a full court action, is found that they did, the
legislation allows the State to recover full attorney fees.
Representative Croft advised that the legislation would
address his concerns that part of the Department of Law is
chronically under funded, which has been a long-term problem
and thus, consumer protection claims have become a low
priority. He claimed that the proposed legislation would be
a good mechanism to fund that concern.
ED SNIFFEN, (TESTIFIED VIA TELECONFERENCE), ASSISTANT
ATTORNEY GENERAL, DEPARTMENT OF LAW, ANCHORAGE, testified in
support of the legislation. He reiterated that the bill
would allow the attorney general's office to recover fees
from consumer protection cases. At present time, private
attorneys have that authority.
LES GARA, (TESTIFIED VIA TELECONFERENCE), PRIVATE ATTORNEY,
CONSUMER PROTECTION, ANCHORAGE, echoed his support of the
legislation. He claimed that the bill is crucial to the
State of Alaska for a number of reasons. It is difficult
for someone that has been defrauded in a small consumer case
to find a private attorney. Consequently, the only recourse
that people have is to go to the attorney general's office.
The State of Alaska has the smallest consumer protection
section in the country and they also have a budget problem.
If the State is able to recover it's full enforcement costs,
then there will be a system in the State where the
protection function of the State does not cost the people of
the State money.
He stressed that HB 385 is a very healthy bill. HB 385 will
help the people of the State save money. Mr. Gara concluded
that the proposed bill is a "win-win" situation for everyone
in the State and offered to answer questions of the
Committee.
Representative Hudson MOVED to report CS HB 385 (JUD) out of
Committee with individual recommendations and with the
accompanying fiscal note. There being NO OBJECTION, it was
so ordered.
CS HB 385 (JUD) was reported out of Committee with a "do
pass" recommendation and with fiscal note #1 by the
Department of Law.
HOUSE BILL NO. 350
An Act relating to terroristic threatening.
REPRESENTATIVE LESIL MCGUIRE, SPONSOR, testified in support
of the legislation. She commented that September 11, 2001
changed the lives of Alaskan and Americans. What was once a
concern for the safety of those living, working or visiting
foreign destination from terrorist acts has painfully come
to the homeland. The Nation has been warned of the dangers
associated with terrorism.
Representative McGuire stated that terrorism is not confined
to public transportation, the bombing of buildings or
government offices. The added threat of chemical and
biological warfare and weapons of mass destruction make it
clear that the world is in need of redefining our laws
regarding terrorism.
Representative McGuire continued that the threat alone of a
terrorism act could cripple the community. Imagine the
chaos that would occur if someone said that they had just
contaminated the public water utility with a deadly chemical
agent. Citizens would panic, schools and businesses would
close, and in general the community would come to a
standstill.
House Bill 350 would increase criminal penalties for certain
acts of terrorism and would prohibit terroristic threats
intended to frighten or cause specific harm to citizens.
House Bill 350 would increase penalties of threats to water,
food supplies, utilities and pipelines. The bill would also
provide law enforcement for the necessary tools to arrest,
detain and ultimately prosecute an individual who threatens
public areas or conveyances. Any threat at this time, must
be taken seriously. House Bill 350 would increase criminal
penalties for certain acts of terrorism threats and would
punish criminals in accordance with the law.
Representative McGuire proposed a change be made to Page 9,
Line 26, deleting "an" and inserting "a public". She
thought that change would serve as a middle ground to narrow
concerns of the public about it being overly broad.
Representative McGuire requested that Ms. Carpeneti address
the bill in further detail.
Representative Hudson MOVED to adopt the proposed amendment
to Page 9, Line 26, deleting "an" and inserting "a public".
Representative Whitaker asked for an explanation of the
proposed language change.
Representative McGuire pointed out that Line 21, sub-section
©, already states, "causes serious public inconvenience".
She thought that it could be reasonably argued that a
private versus public charter would be preferred.
Representative Whitaker asked why the State was concerned it
would be "overly broad" by not inserting "public".
ANNE CARPENETI, ASSISTANT ATTORNEY GENERAL, LEGAL SERVICES
SECTION, CRIMINAL DIVISION, DEPARTMENT OF LAW, stated that
the concern is that the State wanted to move slowly in terms
of what is done for a crime of terroristic threat. A crime
like that could be of harm to the public convenience.
There being NO further OBJECTION, Amendment #1 was passed.
LINDA WILSON, (TESTIFIED VIA TELECONFERENCE), DEPUTY
DIRECTOR, ALASKA PUBLIC DEFENDER AGENCY, DEPARTMENT OF
ADMINISTRATION, agreed that since September 11, 2001, the
State government and Legislature want to and feel the need
to respond with appropriate legislation to address
threatening in an effort to tighten any loop holes. Ms.
Wilson noted that the Public Defenders Agency does support
those efforts, however, it does not support HB 350.
Ms. Wilson outlined the concerns with the bill. The
concerns have to due with proportionality. The criminal
laws in Alaska were carefully classified in accordance with
the seriousness of the injury and the cope-ability of the
defendant. When crimes were classified in Alaska twenty-
five years ago, you would look at the nature of the harm and
the cope-ability of the defendant. A Class A felony has
been classified for those crimes that involve conduct that
actually results in serious physical injury. Class B
felonies are generally reported for crimes that are less
severe and the most aggravated of property damages.
Crimes that are current Class A felonies are assault in the
stst
1 degree, arson in the 1 degree, misconduct involving
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weapons in the 1 degree, and misconduct involving
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controlled substances in the 1 degree. The crimes that are
generally classified as a Class B felony are aggravated
nd
burglary, perjury, forgery, and less serious property or
threat to physical injury.
Ms. Wilson stated that HB 350 in regard to the portionality
and the classification scheme currently in statute would
fuse that by moving some crimes "up" to levels beyond which
they perhaps should be. She pointed out that Page 3,
st
Section 3, proposes to create murder in the 1 degree a
felony murder specifically for the new classification of
st
criminal mischief in the 1 degree as an Class A felony and
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the newly created terroristic threatening in the 1 degree.
Ms. Wilson stated that right now, felony murder is
nd
classified as murder in the 2 degree. When there is a
felony committed, there are probably ten crimes listed in
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murder in the 2 degree felony murder section. Those crimes
nd
currently listed in murder of the 2 degree category are:
· Kidnapping
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· Arson in the 1 degree
· Sexual assault
stnd
· Sexual abuse of a minor in the 1 or 2 degree
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· Burglary in the 1 degree
stnd
· Escape in the 1 or 2 degree
· Robbery in any degree
nd
· Misconduct involving a controlled substance in the 2
degree
nd
HB 350 would "leap frog" over murder in the 2 degree for
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the particular criminal mischief in the 1 degree and
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terroristic threatening and puts it up to murder in the 1
degree. She recommended that it would be more appropriately
stationed with the other serious crimes, itemized in murder
nd
in the 2 degree.
st
Ms. Wilson continued that the criminal mischief in the 1
degree section, elevates what is currently a Class B felony
to an Class A felony. By doing that, classification of
crime should not be piece mealed together. She thought that
it would be more appropriate to take a generalized approach
to classifications and not by a response to one incident.
st
As currently written, criminal mischief in the 1 degree
seems appropriate for a Class B felony. Ms. Wilson pointed
out that a person could get nearly 10 years for a B felony.
Ms. Wilson referenced the terroristic threat provisions of
the bill, Page 8, Section 17. The Public Defender's
concerns with that section are that there should be specific
intent to place a person in fear. The problem with the
language is that it does not require a result. Adding that
with the broad language of the biological or chemical
substance, defined broadly as to include material that is
harmful to the health of a person, would classify it as a
Class B felony. She recommended that an element or result
be included which could be accomplished by amending the
language to require that they have the intent to and that
they additionally either place the person in fear, cause
evacuation of a building or cause serious public
inconvenience.
Ms. Wilson clarified that in several statutes, biological
and chemical weapons are described. She thought that
changing the language from substance to weapons, and makes
it something that is just "harmful" to a person than
something that is more toxic or designed to cause death or
harm to that person for what is being attempted to be
addressed in that particular offense.
nd
Ms. Wilson spoke to terrorist threatening in the 2 degree;
the amendment proposed would be well taken. She added that
it would be very appropriate to eliminate completely
subsection (e). That language is already covered by
subsection © and is broad. Ms. Wilson thought the language
could be too broad.
Ms. Wilson clarified that the concerns of the Public
Defender Agency are that the legislation should look at the
portionality and that the crimes fit so that there are no
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loopholes. However, jumping into a murder in the 1 degree
would be too much in one direction. Additionally, jumping
rd
to criminal mischief in the 3 degree to an Class A felony
is not appropriate and should stay in the Class B felony
that it already is.
Representative Croft referenced the "terroristic
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threatening" in the 1 degree. He suggested if there was a
practical joke situation in which the intent of the person
was to place the other person in fear of physical injury,
would that be classified as a Class B felony.
Ms. Wilson replied that it would.
Representative Croft pointed out that the "intent" was to
place a person in fear of a physical injury. The "intent"
would be the cause for fear. He asked what the penalty
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would be for 1 degree murder.
Ms. Wilson replied that penalty would be 20 to 99 years in
nd
prison. The penalty for a 2 degree murder would be 5 to 99
years in prison.
Representative Croft asked if there was a possibility that
st
the court could give less than 20 years for a 1 murder.
Ms. Wilson responded that they could not.
TAPE HFC 02 - 89, Side B
Ms. Carpeneti explained that the material would have to be
actually harmful to a person's health. The intent was to
prohibit false anthrax scares that cause public
inconvenience.
Co-Chair Williams asked if Ms. Wilson had testified before
the House Judiciary Committee.
Ms. Wilson replied that she had not as there had been
complications with her equipment system.
Co-Chair Williams recommended that the bill should be placed
into Subcommittee to address the legal concerns.
Ms. Carpeneti asked to respond to comments made by Ms.
Wilson. She pointed out that many of the provisions
contained in HB 350 were taken from the Governor's terrorism
package. She added that after September 11th, the
Department of Law attorney's got together to discuss
criminal acts. The conclusion was that there are holes in
our current criminal codes, with the main concern being
damage to the pipeline, a damage that could cause serious
public harm. Other concerns are damage to water supplies
and the possibility of an anthrax scare.
Ms. Carpeneti disagreed with comments made by Ms. Wilson.
Causing damage to the oil or gas pipeline or a supporting
facility is reasonable to raise from a Class B to a Class A
felony. The bill raises all conduct in terms of the
pipeline on one level. That is what exists in current law,
a Class B felony. It would raise it to a Class A felony.
st
Ms. Carpeneti commented that murder in the 1 degree, such
as when someone kills another person when blowing up a
pipeline facility, that sort of terroristic act has the
potential to cause a lot of harm, which made it appropriate
st
to increase the charge to murder in the 1 degree.
Ms. Carpeneti agreed with Ms. Wilson's specifics that
perhaps it could be "tighter", however, she noted that
something would need to be "harmful". She added that would
answer the concerns voiced by Representative Croft. She
commented that these had been the concerns discussed
throughout the State regarding the problems with Alaska's
criminal code and response to acts of terrorism.
Representative Hudson pointed out the five fiscal notes.
Representative Davies agreed that terrorist activity
concerning the pipeline should be reclassified. He thought
that if there was "intent" but nothing actually happened,
nd
the crime should be classified as 2 degree. He referenced
the section.
Ms. Carpeneti replied that section does not address harm to
the pipeline. In response to Representative J. Davies, Ms.
Carpeneti explained that the way in which "intent" is proven
is through being successful.
Representative McGuire countered that the State already has
on the books AS 11.56.810 which includes all the items with
the actual exemption of sending a "package". She thought
that Representative J. Davies' concern rested with reference
back to Section #3.
Representative Davies agreed that was part of it and would
also include the reality of the event actually happening.
st
He noted his concern with the crime raising it to the 1
st
degree. He suggested to take the written language in the 1
nd
degree, move it to the 2 degree and then rewrite it for
when one of the listed offenses actually happens.
Representative McGuire agreed that would work.
Representative Croft acknowledged that he liked the bill and
the intent. He worried about some sections of the bill and
offered to help address those concerns.
Representative McGuire advised that it had been the intent
to take portions of the Governor's bill and her bill and
make the definitions consistent. She noted that the
biological and chemical substance is consistent throughout
the bill and added that she was willing to narrow that
language with the suggested conceptual language.
Representative Croft asked Ms. Wilson if she had referenced
the federal law definitions.
Ms. Wilson advised that she used definitions from the
Internet that defined Title 18, U.S. Code, the definition of
a chemical weapon as a "toxic chemical and its' precursors
that are intended for a purpose not prohibited under that
chapter". It also mentioned a chemical weapon being a
munitions or device specifically designed to cause death or
other harm through toxic properties.
Representative Croft acknowledged that language could be too
"tight" but that it could be used as the "outer" guidelines.
Co-Chair Williams commented that the bill would be HELD in
Committee for Representative McGuire, Ms. Carpeneti and
Representative Croft to meet to discuss the legal matters.
HB 350 was HELD in Committee for further consideration.
ADJOURNMENT
The meeting was adjourned at 3:36 P.M.
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