Legislature(1997 - 1998)
05/05/1997 01:32 PM House JUD
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
May 5, 1997
1:32 p.m.
MEMBERS PRESENT
Representative Joe Green, Chairman
Representative Con Bunde, Vice Chairman
Representative Brian Porter
Representative Norman Rokeberg
Representative Jeannette James
Representative Eric Croft
Representative Ethan Berkowitz
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
* HOUSE JOINT RESOLUTION NO. 36
Proposing amendments to the Constitution of the State of Alaska
relating to redistricting of the legislature, and repealing as
obsolete language in the article setting out the apportionment
schedule used to elect the members of the first state legislature.
- HEARD AND HELD
SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 189
"An Act relating to sale of tobacco and tobacco products; and
providing for an effective date."
- MOVED CSSSHB 189(JUD) OUT OF COMMITTEE
SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 159
"An Act relating to sale, gift, exchange, possession, and purchase
of tobacco and tobacco products; and providing for an effective
date."
- MOVED CSSSHB 159(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 79
"An Act relating to the offense of possession of tobacco by a
person under 19 years of age."
- HEARD SUBCOMMITTEE REPORT AND HELD
* HOUSE BILL NO. 252
"An Act relating to criminal records; relating to notice about and
registration of sex offenders and child kidnappers; and amending
Rules 11(c) and 32(c), Alaska Rules of Criminal Procedure."
- SCHEDULED BUT NOT HEARD
HOUSE BILL NO. 245
"An Act relating to minimum sentences for assault in the fourth
degree that is a crime involving domestic violence; providing that
a prisoner may not contact the victim of the offense when provided
access to a telephone or otherwise immediately after an arrest; and
amending Rule 5(b), Alaska Rules of Criminal Procedure."
- SCHEDULED BUT NOT HEARD
(* First public hearing)
PREVIOUS ACTION
BILL: HJR 36
SHORT TITLE: REAPPORTIONMENT BOARD & REDISTRICTING
SPONSOR(S): REPRESENTATIVE(S) GREEN, Martin, Mulder
JRN-DATE JRN-PG ACTION
04/23/97 1293 (H) READ THE FIRST TIME - REFERRAL(S)
04/23/97 1293 (H) JUDICIARY, FINANCE
05/05/97 (H) JUD AT 1:30 PM CAPITOL 120
BILL: HB 189
SHORT TITLE: RESTRICT TOBACCO SALES
SPONSOR(S): REPRESENTATIVE(S) COWDERY, Austerman
JRN-DATE JRN-PG ACTION
03/12/97 640 (H) READ THE FIRST TIME - REFERRAL(S)
03/12/97 640 (H) LABOR & COMMERCE, JUDICIARY
04/03/97 922 (H) SPONSOR SUBSTITUTE INTRODUCED
- REFERRALS
04/03/97 922 (H) L&C, JUDICIARY
04/09/97 (H) L&C AT 3:15 PM CAPITOL 17
04/09/97 (H) MINUTE(L&C)
04/10/97 (H) L&C AT 3:15 PM CAPITOL 17
04/10/97 (H) MINUTE(L&C)
04/18/97 (H) L&C AT 3:15 PM CAPITOL 17
04/18/97 (H) MINUTE(L&C)
04/21/97 1211 (H) L&C RPT CS(L&C) NT 4DP 1NR
04/21/97 1211 (H) DP: COWDERY, RYAN, HUDSON, ROKEBERG
04/21/97 1211 (H) NR: BRICE
04/21/97 1211 (H) 2 ZERO FISCAL NOTES (DPS, REV)
04/21/97 1225 (H) COSPONSOR(S): AUSTERMAN
04/28/97 (H) JUD AT 1:45 PM CAPITOL 120
04/28/97 (H) MINUTE(JUD)
04/28/97 (H) MINUTE(JUD)
05/05/97 (H) JUD AT 1:30 PM CAPITOL 120
BILL: HB 159
SHORT TITLE: TOBACCO PURCHASE, POSSESSION, SALE, ETC.
SPONSOR(S): REPRESENTATIVE(S) KOTT, Mulder, Kohring, Sanders, Ryan,
Cowdery
JRN-DATE JRN-PG ACTION
02/25/97 465 (H) READ THE FIRST TIME - REFERRAL(S)
02/25/97 465 (H) LABOR & COMMERCE, JUDICIARY
02/27/97 519 (H) COSPONSOR(S): SANDERS
03/27/97 871 (H) SPONSOR SUBSTITUTE INTRODUCED
- REFERRALS
03/27/97 872 (H) L&C, JUDICIARY
04/09/97 (H) L&C AT 3:15 PM CAPITOL 17
04/09/97 (H) MINUTE(L&C)
04/10/97 (H) L&C AT 3:15 PM CAPITOL 17
04/10/97 (H) MINUTE(L&C)
04/11/97 1085 (H) COSPONSOR(S): COWDERY
04/17/97 1132 (H) L&C RPT CS(L&C) 4DP 1NR 1AM
04/17/97 1133 (H) DP: COWDERY, SANDERS, RYAN, HUDSON
04/17/97 1133 (H) NR: BRICE
04/17/97 1133 (H) AM: ROKEBERG
04/17/97 1133 (H) 2 FISCAL NOTES (COURT, DCED)
04/17/97 1133 (H) 4 ZERO FISCAL NOTES (DPS, REV, LAW,
ADM)
04/28/97 (H) JUD AT 1:45 PM CAPITOL 120
04/28/97 (H) MINUTE(JUD)
04/28/97 (H) MINUTE(JUD)
04/28/97 (H) MINUTE(JUD)
05/05/97 (H) JUD AT 1:30 PM CAPITOL 120
WITNESS REGISTER
JACK CHENOWETH, Attorney
Legislative Legal and Research Services
Legislative Affairs Agency
130 Seward Street, Suite 409
Juneau, Alaska 99801-2105
Telephone: (907) 465-2450
POSITION STATEMENT: Testified regarding HJR 36.
JAMES BALDWIN, Assistant Attorney General
Governmental Affairs Section
Civil Division (Juneau)
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
Telephone: (907) 465-3600
POSITION STATEMENT: Provided department's position and answered
questions regarding HJR 36.
CASEY SULLIVAN, Legislative Administrative Assistant
to Representative John Cowdery
Alaska State Legislature
Capitol Building, Room 416
Juneau, Alaska 99801
Telephone: (907) 465-3879
POSITION STATEMENT: Presented sponsor's position on SSHB 189.
NICOLE POIRRIER, Legislative Intern
for Representative Pete Kott
Alaska State Legislature
Capitol Building, Room 204
Juneau, Alaska 99801
Telephone: (907) 465-3765
POSITION STATEMENT: Read sponsor statement for SSHB 159.
REPRESENTATIVE PETE KOTT
Alaska State Legislature
Capitol Building, Room 204
Juneau, Alaska 99801
Telephone: (907) 465-3764
POSITION STATEMENT: Sponsor of SSHB 159.
ANNE CARPENETI, Assistant Attorney General
Legal Services Section
Criminal Division
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
Telephone: (907) 465-3428
POSITION STATEMENT: Answered questions during hearing of SSHB 159
on that bill and CSSSHB 189(JUD).
ACTION NARRATIVE
TAPE 97-76, SIDE A
Number 0001
CHAIRMAN JOE GREEN called the House Judiciary Standing Committee
meeting to order at 1:32 p.m. Members present at the call to order
were Representatives Green, Bunde, Porter and James.
Representatives Croft, Berkowitz and Rokeberg arrived at 1:35 p.m.,
1:37 p.m. and 1:42 p.m., respectively.
CHAIRMAN GREEN advised members that the committee would not hear HB
79 or HB 252.
HJR 36 - REAPPORTIONMENT BOARD & REDISTRICTING
Number 0076
CHAIRMAN GREEN announced the first item of business was House Joint
Resolution No. 36, proposing amendments to the Constitution of the
State of Alaska relating to redistricting of the legislature, and
repealing as obsolete language in the article setting out the
apportionment schedule used to elect the members of the first state
legislature.
JACK CHENOWETH, Attorney, Legislative Legal and Research Services,
Legislative Affairs Agency, explained that since not long after
statehood, it has been clear that provisions covering legislative
apportionment are out of sync with constitutional requirements
first laid down by the United States Supreme Court in the early
1960s. This resolution would conform Alaska's constitutional
scheme to those requirements. It would also require that in future
legislative districting schemes, only single-member districts would
be used.
MR. CHENOWETH noted that HJR 36 deals principally with Article VI,
the legislative apportionment article of the constitution. Section
1 of Article VI talks about election districts, the "term-of-art"
used to describe the districts in which House members run for
election or re-election. Section 1 of HJR 36 deletes obsolete
language that refers to the first reapportionment and the reference
to Article XIV, Section 1, substituting a requirement that the
boundaries of election districts be drawn in conformity with other
provisions of this article after each decennial census of the
United States. A parallel change is made in Section 2 for Senate
districts.
MR. CHENOWETH referred to Section 3 and said he is recommending
substitution of the term "redistricting" throughout this article.
"Reapportionment" is a term generally reserved to amending or
changing the number of representatives within fixed political
boundaries. For example, every ten years when the census comes
out, the United States Congress is reapportioned, with states
gaining or losing seats based on population changes. The shift of
seats from one jurisdiction to another having fixed boundaries,
such as state boundaries, is a true reapportionment; the number of
seats is reallocated among these jurisdictions.
MR. CHENOWETH explained that within jurisdictions, however, the
process of drawing lines is a simple redistricting, which is what
is going on with state legislatures. The United States Supreme
Court has made it clear that only resident population count can
serve as the basis for the line-drawing and that any effort to tie
this to some sort of fixed, permanent or semi-permanent lines will
not sit well with the courts. This is a simple redistricting of
Alaska into 20 Senate seats and 40 House seats. Section 3 of HJR
36 simply substitutes the term "redistricting" for
"reapportionment", and that change is made throughout the rest of
the resolution.
MR. CHENOWETH referred to page 2, line 7, and said it also
substitutes the word "resident" so that "resident population"
rather than "civilian population" is the basis for redistricting.
The limitation of tying this to a civilian population was set aside
by an early state supreme court case. "And we have to go with some
sort of resident-based population scheme," he concluded.
Number 0365
MR. CHENOWETH said Section 4 deletes current language that talks
about how reapportionment shall be developed and substitutes the
requirement of single-member districts. "The Governor is to
establish single-member election districts and is to establish
Senate districts composed of two contiguous election districts,
with each Senate district to elect one Senator," he explained.
"That's the scheme that we now have in place."
MR. CHENOWETH explained that Section 5 reworks Article VI, Section
6. It deletes some language that ties back to reapportionment and
keeps in place the only language that seems to be pertinent to how
lines are to be drawn, the language that the reapportionment boards
in the past, and the courts in their review of the work of the
Governor, have looked back at and used to consider these
reapportionment decisions.
MR. CHENOWETH noted that Section 6 changes the board's name to the
"Redistricting Board". It maintains the requirement of a
geographic spread but unties this from the notion of fixed
Southeastern, Southcentral, Central and Northwestern Senate
districts, which are the fixed districts used in the original
constitution; it substitutes the four judicial districts
established by law and authorized under Article IV, Section 1.
MR. CHENOWETH said Section 7 simply is a change in name from
"Reapportionment" to "Redistricting". Section 8 updates some
references to the Governor, removing a gender-based pronoun and
substituting a neutral term. It also makes further substitutions
of "redistricting" for "reapportionment".
MR. CHENOWETH said Section 9 deletes two sections of Article VI
made obsolete by United States Supreme Court decisions: Section 5,
which talks about combining House districts in order to maintain
Senate districts in the old fixed-boundary scheme, and Section 7
(misstated as Article VII), which talks about modification of
Senate districts when necessary to accommodate population shifts.
MR. CHENOWETH stated, "We also propose to repeal Article XIV, which
is a provision that sets out the initial reapportionment dating
from 1959. It's not used anymore. It has no standing anymore.
Article XIV is simply a device or a vehicle by which we generally
restate the current apportionment, so that it can be found in the
statute books. It's typically an annotation of some sort that
describes the boundaries of the current apportionment, so at least
we have it someplace out in the public and they can find it. Every
time there's an apportionment change, every ten years, that change
is made. But ... the original language of Article XIV is of no
value anymore." He concluded by saying Section 10 is a boiler
plate to get this before the voters in November 1998.
Number 0570
REPRESENTATIVE ERIC CROFT asked whether the major change is
"constitutionalizing" single-member districts.
MR. CHENOWETH said yes, for both the House and the Senate.
REPRESENTATIVE CROFT asked, "Do you mean any change in current law
when you make the switch from `civilian' to `resident,' that is,
the law that we're forced into by the federal interpretation?"
MR. CHENOWETH replied, "Yes, we are following the requirements that
have been imposed by, chiefly, recently, state supreme court
decisions that have eliminated the use of `civilian' and required
that we go to a resident population base. And the state supreme
court has suggested ways in which it is possible to take, for
example, the military count, and try to allocate some number of
estimated military that reflect a better split between resident and
nonresident."
REPRESENTATIVE CROFT asked whether it conforms to current practice
in that regard.
MR. CHENOWETH affirmed that.
REPRESENTATIVE CROFT referred to the term "contiguous" and said
he'd read some of those cases. Because of geography, Alaska has an
interpretation somewhat different from other states. For example,
Alaska has one Senate district and two House districts separated by
700 miles of ocean; those are considered "contiguous." He stated,
"So, we don't mean any change in that."
MR. CHENOWETH concurred.
REPRESENTATIVE CROFT asked, then, whether the sole substantive
change is locking in single-member districts. If this were current
law and these changes had been made two years ago, would what they
are doing now be legal?
MR. CHENOWETH said yes.
Number 0714
REPRESENTATIVE ETHAN BERKOWITZ asked for confirmation that there is
no constitutional problem with the existing structure, from a
federal perspective.
MR. CHENOWETH replied that what problems there might be, the state
courts have generally worked their way around. They have looked at
decisions of the United States Supreme Court and accommodated as
best as they've been able to, pointing out that this is an article
in need of revisitation and amendment, in light of decisions from
the United States Supreme Court and their own practices.
REPRESENTATIVE BERKOWITZ indicated the Hickel case is the only
related case he has read, although there may be others. He asked,
"What, generically, are the concerns in the courts?"
MR. CHENOWETH answered, "Well, the courts have had to fill in, if
you will. They have had to assume responsibility where there was
no literal expression of responsibility for action taken by the
Governor or by the reapportionment board as recommendations to the
Governor. For example, there is no authority in law to adjust the
terms of sitting Senators. The courts have filled in by saying
that when there is a substantial change in a boundary, and a Senate
district is increased substantially so that new faces are brought
in or former constituents are let go of and put in a different
district, ... there is an inherent authority to cut short by two
years the Senate terms and require a Senator ... in a remade
district to run again."
MR. CHENOWETH indicated there is nothing of that in the state
constitution, adding, "They have simply accepted the fact that that
needs to be done, looked at the operation of that kind of a
provision in other states and adapted it ... into this." He
emphasized this is the one thing for which no express provision
exists in the state constitution, nor is there an express provision
for it in this resolution.
Number 0845
REPRESENTATIVE CON BUNDE asked why they weren't including that
omitted provision here.
MR. CHENOWETH answered, "Well, I think you should. I think a
complete package would be some sort of reference in here that the
Governor has explicit authority to, under some kind of
circumstances, cut short the terms of sitting Senators and require
that they run for re-election. Now, I don't know how that's going
to sit in the other body, and I certainly wasn't asked to make that
change. I only throw it out on the table as the one piece of this
puzzle that, as I went back and looked at this thing over the
weekend, I thought perhaps we ought to put something in there so
that the courts are not relying upon some assumed authority.
Having rewritten Article VI, perhaps we ought to add that in and
make that point clear."
Number 0919
REPRESENTATIVE BUNDE noted the lateness in the session and the
expense required for a public vote on a constitutional amendment.
He suggested they'd be remiss not to include as many housekeeping
details as possible. He'd like to see that provision included.
REPRESENTATIVE BRIAN PORTER pointed out that the Governor can make
the appointment to the districting board without confirmation by or
concurrence of the legislature. He asked whether it would be a
friendly amendment to add that.
Number 1001
CHAIRMAN GREEN said that was a good thought. He mentioned the "two
concepts" and asked Mr. Chenoweth whether there is a way to tighten
this so that nothing is left to chance. They'd been working this
way at least as long as he'd been in the state, that "every
decennial election, the Senators just serve two terms, and then
everybody starts from scratch again; but this would codify it."
REPRESENTATIVE PORTER indicated his own suggestion about
confirmation had been somewhat facetious.
CHAIRMAN GREEN clarified that he was discussing the prior issue.
Although it wasn't essential to do it immediately, he wondered
whether there was a way to modify it, possibly for review at a
future meeting.
MR. CHENOWETH said he believed that could be accomplished. It may
only be necessary to add a sentence or a fraction of one that
invites the published final plan to indicate some determination on
the terms of Senators then in office, or words to that effect.
CHAIRMAN GREEN said he perceived that to be the will of the
committee, according to comments.
REPRESENTATIVE CROFT asked whether there would be other witnesses.
CHAIRMAN GREEN replied that no one was on teleconference, but Mr.
Baldwin was signed up to testify locally.
Number 1114
JAMES BALDWIN, Assistant Attorney General, Governmental Affairs
Section, Civil Division (Juneau), Department of Law, came forward
to testify, saying Representative Croft's questions had pretty well
covered what he wanted to clarify that day. The people in his area
of the department generally end up advising the reapportionment
board. He said, "I guess I've been through about three or four,
but not that many governors. It seems like there's been more
reapportionments than there have been governors because of the way
these things get into litigation. And we seem to have to do them
more than once per ten-year cycle."
MR. BALDWIN indicated the application of the federal voting rights
act has made their job increasingly complicated over time. He
explained, "It seems like we do the plan, we get through our
courts, and then we have to get through the Justice Department for
pre-clearance, which then seems to make us have to go through
another cycle again." Mr. Baldwin is concerned, with this
legislation particularly, about abandoning some current flexibility
in techniques to bring forward reapportionment plans. He stated,
"If you go strictly to a single-member-district approach, then you
give up the ability to go to multi-member districts, if that would
serve our interests and perhaps assist us in gaining pre-clearance
from the Justice Department."
MR. BALDWIN said he couldn't pose a particular set of facts that
would cause that to arise. "But I've been having a terrible time
doing that for every reapportionment plan we've come up with;
there's always been something new that comes up to cause us a
hurdle before the Justice Department," he stated. "So, I just ask
the committee to consider that fact. As our population grows and
it shifts, and we know it's shifting somewhat, particularly towards
the Mat-Su area of the state, it's going to take a larger
population for rural areas of the state; they're going to have to
come in and pick up, perhaps, what we call the `fringe areas' of
the municipalities and more higher-populated areas."
MR. BALDWIN said it might be possible they'd need to go to multi-
member districts to solve some particular problem. Under the
current interpretation of the state constitution, they can go to
single-member districts if the Governor desires that. Mr. Baldwin
advised members, "Not knowing who the next Governor is going to be
that's going to be writing the next plan, you might want to keep in
mind leaving that option open to him or her."
MR. BALDWIN expressed concern that being required to go to single-
member districts may affect rural areas more than urban areas.
While he wasn't saying they'd want to do multi-member districts in
rural areas, they may need to do so in urban districts in order to
make things work in the rural areas. Or they could possibly be
into retrogression, which he called a "nasty word in the area of
voting rights." Mr. Baldwin explained, "In other words, the
minorities who are represented now would lose representation. And
... mathematically, if that works out, if demographically that
works out, we have to do that, that's fine. But ... if it can be
done another way, the Justice Department is going to be there, and
I don't know what the outcome would be, lacking the flexibility
that we have now. So, ... I really hate this saying, but `if it
ain't broke, don't fix it' might well apply here."
MR. BALDWIN said he believed the testimony earlier was that the
requirement of districting only resident population is not intended
to be a change from anything now in effect. He stated, "Our
supreme court was not quite so direct in the way it said that
contiguity can include expanses of water. And I want to make sure
that in here you're not saying `contiguous' in its plain meaning,
which means right up against one another. We can't lose that
flexibility, because geography just works against us in so many
ways, and particularly getting things to work. So, I'm glad that
you're creating a strong record for that."
Number 1380
MR. BALDWIN noted that it was nearly the end of session. If this
resolution did not pass both houses, he asked the committee to
carefully consider studying this matter in the interim,
particularly with regard to single-member districts. He mentioned
"knowing better what's going into the building blocks of the
census, which is being put together now, whether there isn't going
to be enough evidence there to perhaps lead to a decision that we
don't need to abandon this flexibility that we have now."
MR. BALDWIN commented that from a Governor's perspective, single-
member districts are good because a veto can be done "surgically,"
by district. However, from the realities of reapportionment or
redistricting, it may cause real problems for the next Governor.
Number 1432
CHAIRMAN GREEN indicated they had used this method since the 1992
election. He asked whether there wasn't a significant influx and
shifting of population in the 1980s. He said it seems the concerns
Mr. Baldwin expressed were handled well in single-member districts.
He asked, "Do you anticipate some reason why that won't continue to
be handled well with single-member districts?"
MR. BALDWIN said the only thing he can successfully anticipate is
that there will be litigation over the plan, one way or another.
There have been a couple of supreme court cases recently on using
minority voters as a criteria. While he can't foresee the affect
of that, he predicts Alaska will be in a "fight over retrogression"
in the next reapportionment. He explained, "When you go into these
reapportionment efforts, the Justice Department generally sticks
you with a benchmark as to ... how many minority-influence seats
you have, how many majority seats you have. And if the way we go
into it forces us into a retrogression situation, I see long and
protracted litigation, with uncertain results at the end of the
tunnel."
REPRESENTATIVE PORTER asked, "With the feds?"
MR. BALDWIN replied, "I think with the minorities, and the feds
will be as a part of it, yes. They will be ... in the litigation
as well." He said for a state like Alaska, which is closely
monitored under the voting rights act, the best situation is not to
have retrogression but to maintain the benchmarks, if at all
possible. While it is hard to predict what will happen, he
anticipates that is what Alaska will be confronted with. There
might be ways to avoid it.
MR. BALDWIN stated, "Keeping the maximum powers in the hands of the
Governor to do that, (indisc.) in the board to do that, would be my
preferred alternative. But it's not the best." He pointed out
there is much good to be said for single-member districts.
Campaigns are cheaper and easier. It is easier to maintain "one
person, one vote." Constituents don't need to feel that they can't
tell who their representative is, and there is a more direct
relationship. Mr. Baldwin stated, "There's all those good things,
but when you get right down to the problems that we have with a
small population, a large area of geography and much water and all
those factors brought to bear, tying your hands to one method of
redistricting might not be what would serve the interests of ...
the state as a whole."
Number 1596
CHAIRMAN GREEN suggested that when one looked at the demographics
of the districts as they were done, and the number of minorities
and other factors, it looked pretty good across the state. "To
then say that it might be better to go to multiple-member districts
and potentially get back into the `doughnut' district or Valdez
being tied in with South Anchorage, I mean, those kinds of things
seem to be much more confusing and much more potential for
litigation than to go to an area where the constituency is far more
aware of who their representative really is," he said.
REPRESENTATIVE JEANNETTE JAMES agreed with Mr. Baldwin's reasons
why a single-member district is important. She indicated she'd
prefer not to have an option, which they may use when they don't
need to. She'd never yet seen a redistricting without litigation.
She feels much more comfortable with a single-member district
because of the "one man, one vote" issue and because the people
know who represents them. She believes those are important issues.
REPRESENTATIVE JAMES indicated she understands about losing members
from rural areas. However, in the next ten years there may be a
surge in the rural areas, particularly if they get some of the
anticipated development. She asked whether "maybe it ought to be
left that the option is only a single-member district and then,
should we see a problem with that coming in the future, that we
then go to the voters to ask for a change." She added, "Maybe
that's not wise, because maybe most of the voters are in the areas
who love to have more representation than less out there; I don't
necessarily think that's true." She asked Mr. Baldwin to respond
to that way of looking at it.
Number 1708
MR. BALDWIN replied, "I don't think it's harder to come up with a
list of ... why you'd want multi-member districts, first off. I
think there's a list of reasons for that, too, and because of the
other criteria in the constitution about compactness and
socioeconomic interrelatedness, which are the other criteria in the
constitution, it might well be able to state a case that an area,
for example, Juneau, which ... has in past reapportionment plans,
before the one we're in, has had multi-member districts, and
probably for a good reason. It's hard to see any division line
between the town and the [Mendenhall] Valley, for example, and
there have been other areas in the state that are like that, that
have benefitted from having multi-member districts."
MR. BALDWIN said he didn't know what the process would be for the
voters to come back and change it at some point in the future. He
stated, "I mean, we have a reapportionment, and we try to do a plan
and have it done so it can be in place for another ten years. And
to interrupt that in the middle of a cycle, which is what we've
done the last couple of times because of litigation, has been very
disruptive to the electoral process. Can you imagine the Division
of Elections scrambling to try and get their precinct lines and
regulations done for an election when you don't know what the
districts are going to be? It's really pandemonium." He said he
wouldn't recommend an approach like that, if he understood the
question correctly.
Number 1777
REPRESENTATIVE JAMES mentioned a lawsuit "determined on a national
level last year" about gerrymandering in the South. In her own
district, she noted that they'd "zeroed out Nenana to meet some
population, Native population, and left me with less people in my
district than other districts," but within the parameters allowed.
She asked whether that court decision would have precluded that
from happening and whether Mr. Baldwin was familiar with it.
MR. BALDWIN replied, "Yes, I am. I don't think so. Representative
Croft and I've argued about this a little bit; he doesn't quite see
it my way. But I think that in Alaska we did our redistricting
considering not only race; we also considered the other traditional
criteria, which are compactness and socioeconomic connectedness.
At the same time, we did the adjustments which were required, we
thought, to meet pre-clearance requirements. It's only when you're
doing it based completely on race, without any other criteria, that
you fall into the realm of those U.S. Supreme Court cases involving
Texas and Georgia. So, if that was your ... sole criteria, you did
it just because of race considerations, then you're going to have
violated the U.S. Constitution."
Number 1874
REPRESENTATIVE PORTER indicated that if it wasn't the sponsors'
desire to get this past both bodies this year, he was only being
facetious regarding confirmation of the board by the legislature to
the extent that he believed this was a "slam-dunk" housekeeping
legislation. However, if the main feature needs looked at further,
this would be the appropriate committee to perhaps look at "a much
bigger element of this whole area."
REPRESENTATIVE PORTER explained, "I would think that it would be
appropriate to try to get a procedure to put in place a board that
would look at redistricting from a position of what is the most
appropriate - under the law - district to put in place for the
betterment of the voters of the state of Alaska, instead of, `How
much partisan gerrymandering can we do and get away with it?' And
I'm not saying that one party does this any better or worse than
the other party. I mean, we've been here long enough to know that
they both do it. So, if it is that we have a desire to work on
this over the interim, I would be happy to try to work on that
element also."
CHAIRMAN GREEN indicated changing that would raise a concern. He
asked whether Mr. Baldwin had indicated, in response to
Representative Porter's mention of this earlier, that the
Administration would be more concerned about the resolution if they
modified the strong gubernatorial input in selection of the board.
MR. BALDWIN suggested that may have been Mr. Chenoweth. He said it
wasn't brought up while he was present.
CHAIRMAN GREEN asked, "So, you don't see any problem with that?"
MR. BALDWIN laughed, then said, "I think that the constitution is
just fine, as far as having the Governor appoint the board. That
was a decision that was hotly debated in the minutes of the
constitution. ... They felt that the legislature, while a[n]
exceedingly wise organization, maybe was not best suited for ...
making reapportionment decisions."
Number 2004
REPRESENTATIVE CROFT suggested if they knew anything after this
history, it's that the legislature doesn't want to be involved in
rewriting its own boundaries. While to some extent it's up to the
vagaries of who is in office every decade and there have been some
games, he can't imagine the games there would be if the legislature
were in charge of that.
Number 2024
REPRESENTATIVE PORTER responded that he certainly wasn't suggesting
that. He was suggesting trying to establish a neutral board
without gubernatorial or legislative direction on how to try to
gerrymander the districts. He said, "And if there's anybody here
that doesn't think that that isn't what's happened the last 10, 20,
30, 40 years, I'll talk to you after we get off the record."
Number 2050
REPRESENTATIVE BUNDE brought up questions he'd like to have
addressed if this was worked on during the interim. First, do
other states have both single-member and multiple-member districts
in the same body? And have other states gone from having single to
multiple members? He understood that most have gone from multiple
to single, for many good reasons, and while he understood the plea
for flexibility, "we may need a socket set here but we've got a
crescent wrench; maybe we don't need to keep the crescent wrench."
MR. BALDWIN replied that he didn't know the answer but would be
happy to research it.
Number 2107
CHAIRMAN GREEN asked whether there were further comments. Speaking
as both sponsor and chairman, he announced that HJR 36 would be
held over and worked on during the interim.
SSHB 189 - RESTRICT TOBACCO SALES
SSHB 159 - TOBACCO PURCHASE, POSSESSION, SALE, ETC.
HB 79 - MINOR IN POSSESSION OF TOBACCO
Number 2150
CHAIRMAN GREEN called on Representative James for a subcommittee
report on Sponsor Substitute for House Bill No. 189, "An Act
relating to sale of tobacco and tobacco products; and providing for
an effective date"; Sponsor Substitute for House Bill No. 159, "An
Act relating to sale, gift, exchange, possession, and purchase of
tobacco and tobacco products; and providing for an effective date";
and House Bill No. 79, "An Act relating to the offense of
possession of tobacco by a person under 19 years of age." The
three bills had been assigned to the same subcommittee.
REPRESENTATIVE JAMES, speaking as chair of that subcommittee,
reported that they had met that morning and decided to let the
decisions be made by the committee as a whole.
SSHB 189 - RESTRICT TOBACCO SALES
CHAIRMAN GREEN brought before the committee Sponsor Substitute for
House Bill No. 189, "An Act relating to sale of tobacco and tobacco
products; and providing for an effective date." Version 0-
LS0711\F, Ford, 4/21/97, had been adopted as a work draft at the
previous hearing.
CASEY SULLIVAN, Legislative Administrative Assistant to
Representative John Cowdery, spoke on behalf of the sponsor, saying
this bill will limit public access to tobacco products in retail
premises; require employees to learn the relevant statutes and sign
an affidavit attesting to their understanding; and increase
penalties for selling tobacco to minors.
MR. SULLIVAN said one thing that passionately resonates throughout
Alaska is that people don't want to see tobacco going to minors.
This bill changes the penalties for selling or giving tobacco to a
person under 19 years of age from a violation that carries a fine
of not less than $300 to a class A misdemeanor carrying a penalty
of up to $5,000; a second offense would be a class C felony
carrying a penalty of up to $50,000. It is not their intent to
punish minors beyond the penalties now in statute, and they hadn't
addressed that. It is essentially for retailers selling tobacco to
minors.
MR. SULLIVAN referred to testimony during the House Labor and
Commerce Standing Committee hearing, which indicated banning
tobacco self-service displays is a popular approach endorsed by a
couple of different establishments. He said this bill is the first
to feature that self-service ban.
MR. SULLIVAN referred to questions from the previous hearing in the
present committee. The first regarded lack of fiscal notes. He'd
checked with Anne Carpeneti of the Department of Law, who said she
won't be issuing a fiscal note "due to the lack of history." All
others received thus far have been zero fiscal notes.
MR. SULLIVAN referred to a second question concerning the culpable
mental state of "negligence" now in AS 11.76.100. He said that is
not the commensurate term to use with the stricter penalties
proposed here. For a class A misdemeanor, "knowingly" is more
appropriate; for the class C felony, "recklessly" is more
appropriate. Mike Ford from Legislative Legal Services had
indicated that including both definitions within the bill would be
okay, and those are consistent with the amendment Representative
Porter had offered at the last hearing.
MR. SULLIVAN next referred to a question asked by Chairman Green,
relating to whether the penalty provisions would affect people who
are not retail shop owners, such as those on the streets giving a
few cigarettes to others. Review with Legislative Legal Services
had indicated the standard of culpability for these penalties would
make that highly improbable, just due to the circumstances. He
stated, "But in a memo that we got today, just due to the actual
definition of the statute, ... they would be responsible for that."
CHAIRMAN GREEN said, "If somehow caught, they would be."
MR. SULLIVAN agreed. He restated that the intent is not to punish
minors or people on the street. They just want to restrict tobacco
to public access, as much as possible, in retail establishments and
to provide economic incentive for not selling to minors.
Number 2315
REPRESENTATIVE BUNDE noted the repeated comment about not wanting
to punish minors. He also recalled that the sponsor had once
indicated he didn't want to punish those already addicted to
nicotine. Yet a minor who attempts to purchase alcohol is subject
to a punishment as well as the person who sells the product. He
asked the reason for differentiating between illegally purchasing
tobacco and illegally purchasing alcohol.
Number 2345
MR. SULLIVAN replied that they just don't address it in this bill.
He believes there are already penalty provisions for minors in
possession of tobacco, "a violation of $300." He stated, "We
thought that the responsibility ought to be on the people who
distribute these products. And it is. And then there's new
federal regulations, as you well know, that are coming out. And we
thought that would be ... the eminent focus of our legislation."
REPRESENTATIVE BUNDE asked, "If a minor is using a false ID and
purchases, do you feel that's still adequately addressed in
existing legislation?"
MR. SULLIVAN answered that to the best of his knowledge, it is not
covered extensively.
Number 2378
REPRESENTATIVE CROFT noted the class C felony for the second sale
of tobacco. He asked what the penalties are for selling marijuana.
MR. SULLIVAN said he didn't know. They had fashioned these penalty
provisions to be similar to those in statute for providing alcohol
to minors, although there is a stiffer fine.
Number 2411
REPRESENTATIVE BERKOWITZ noted that this also covers exchanging or
giving tobacco. He suggested a person giving a cigarette to a 16-
year-old or 18-year-old would come under the reach of the statute.
MR. SULLIVAN affirmed that. He mentioned Mike Ford of Legislative
Legal Services and read: "Accidentally giving a cigarette only
causes a crime to occur if the act is a gross deviation from what
... a reasonable person would do in that situation." He said it is
a culpable mental state.
Number 2463
REPRESENTATIVE JAMES asked how they envision enforcement happening.
CHAIRMAN GREEN asked: With a zero fiscal note?
TAPE 97-76, SIDE B
Number 0006
MR. SULLIVAN indicated they hope the penalties will encourage
enforcement and discourage retail owners and employees from
breaking the law. He stated, "There's obviously an increase in
education that is going on right now through federal regulations.
Throughout all the shops in Alaska, we're seeing the `we card'
program and others similar to that. I think that the education is
very high, and once they're also educated on the penalties that
will be incurred if they sell, if they deviate from this, I think
that you will find, with these increased penalties, that the sales
... of tobacco to minors will decrease."
CHAIRMAN GREEN asked: Without catching someone in the act of
selling to a minor, what would the penalty be for an owner who
didn't enforce it or who didn't cause employees to enforce it?
MR. SULLIVAN said he didn't know.
Number 0070
REPRESENTATIVE PORTER restated his concern about passing this bill
out with a "violation standard for a misdemeanor and a felony." He
said they'd have big trouble if they had a negligence standard for
committing a felony, which he believes is totally inappropriate for
a misdemeanor. He proposed changing that.
CHAIRMAN GREEN asked whether the sponsor had concerns about that;
Mr. Sullivan's reply was indiscernible due to simultaneous speech.
Number 0102
REPRESENTATIVE NORMAN ROKEBERG said along that same line, he is
concerned that the culpable person is the employee. The five-year
window where it goes from a first-offense class A misdemeanor to a
class C felony seemed a bit draconian. With too stiff a penalty,
there is a tendency not to enforce it if it seems unreasonable.
Number 0123
REPRESENTATIVE PORTER agreed. As discussed in other bills relating
to whether an offense should be a violation, misdemeanor or felony,
there is a practical side. A person will get whatever sentence the
court feels is appropriate within legal guidelines. A clerk
convicted of a C felony for a second offense of selling cigarettes
to a minor will get no more than for a misdemeanor. He explained,
"You can sentence someone on an A misdemeanor up to a year in jail.
A C felony is not going to get any more than that. It might even
get less because of a serious suspended imposition of sentence or
something. With that in mind, we're moving from a violation, which
is no jail time, into the criminal area."
REPRESENTATIVE PORTER suggested making this a B misdemeanor and an
A misdemeanor, as opposed to an A misdemeanor and a C felony, and
changing the standard to "knowingly" and not "negligently," so that
it is consistent with other criminal offenses.
CHAIRMAN GREEN asked whether that was being offered as an
amendment.
REPRESENTATIVE PORTER moved that as an amendment, specifying that
the initial offense of selling or giving tobacco to a minor would
be a B misdemeanor, and the second offense would be an A
misdemeanor. In addition, under AS 11.76.100(a)(1), the word
"negligently" would be replaced by the word "knowingly".
CHAIRMAN GREEN asked whether there were questions or an objection
to the amendment. There being none, the amendment was adopted.
REPRESENTATIVE ROKEBERG made a motion to move committee substitute
0-LS0711\F, Ford, 4/21/97, as amended, from the committee with
attached zero fiscal notes and individual recommendations. There
being no objection, CSSSHB 189(JUD) moved from the House Judiciary
Standing Committee.
SSHB 159 - TOBACCO PURCHASE, POSSESSION, SALE, ETC.
[Contains extensive comparisons with CSSSHB 189(JUD)]
CHAIRMAN GREEN announced the next item of business was Sponsor
Substitute for House Bill No. 159, "An Act relating to sale, gift,
exchange, possession, and purchase of tobacco and tobacco products;
and providing for an effective date."
Number 0282
NICOLE POIRRIER, Legislative Intern for Representative Pete Kott,
read the sponsor statement into the record, noting that
Representative Kott would join the meeting shortly. She read:
"The state of Alaska has a serious problem with underage
consumption of tobacco products. Statistics compiled by the
Department of Health and Social Services indicate that 21 percent
of Alaska's high school students regularly smoke and that 25
percent of our ... middle school students smoked at least one
cigarette in the last month. As reported by the February 27, 1997,
edition of The Wall Street Journal, the Center for Disease Control
and Prevention has concluded that approximately one million
children each year take up smoking and that unless they quit, over
one-third of them will die from tobacco-related illnesses.
"These statistics are cause for great concern. It is estimated
that 18,000 of Alaska's children will succumb prematurely to
tobacco-related illnesses. This is a tragedy, not only for the
individuals but for our state as a whole. I think that we can do
better.
"Under existing law, no one under 19 years of age is permitted to
possess tobacco. Obviously, large numbers of our children are
being accorded illegal access to this product. House Bill 159
would have the salutary effect of limiting that access. This bill
requires that merchants, prior to the sale of tobacco, demand proof
of age from any prospective patron who appears to be under 27 years
of age. House Bill 159 requires all clerks involved in the retail
sale of tobacco to sign an acknowledgment that they have been
advised of this proof-of-age requirement. In addition, House Bill
159 increases the penalties for underage sale or possession of
tobacco. I urge your support." Ms. Poirrier deferred to the
sponsor, who had not yet arrived, to answer questions.
Number 0366
REPRESENTATIVE BERKOWITZ noted that they'd just passed out
legislation that defined, by statute, that this is an A
misdemeanor. Now, they were reverting and calling it a violation.
He suggested that since this is a subsequent action, it may
supersede their preceding action if it passed out of committee.
REPRESENTATIVE ROKEBERG stated his understanding that there are two
different "offendee potentials," as the bills speak to different
parties. One is a giver, seller, barterer or distributor, whereas
the other is the underage receiver or possessor.
Number 0408
REPRESENTATIVE CROFT agreed. He said it makes it a violation for
a person under 21 years of age to knowingly possess tobacco or to
present false identification. He asked what the current penalty
is, if any, for minors who purchase tobacco.
REPRESENTATIVE BERKOWITZ responded that he was talking about just
the provisions of AS 11.76.100.
REPRESENTATIVE PORTER asked, "As stated in the bill or as existing
in law now?"
REPRESENTATIVE BERKOWITZ said as stated in both SSHB 159 and SSHB
189.
Number 0450
REPRESENTATIVE BUNDE referred to page 4, lines 9 through 18, and
said it talks about a person with a business license who violates
this section. It isn't only talking about a minor.
REPRESENTATIVE CROFT added, "And similarly, as you just said, on
page 1, lines 13 and 14, and page 2, lines 1 and 2, a person who
violates it is given a violation." He agreed there are two areas
where the seller is getting a violation, whereas they'd just made
it a misdemeanor.
REPRESENTATIVE BERKOWITZ said he'd be happy to supersede with this.
REPRESENTATIVE ROKEBERG asked whether it would be appropriate to do
a conceptual amendment to conform the legislation. He said he'd
hoped the subcommittee would have taken up those issues.
CHAIRMAN GREEN agreed and said he hadn't realized there was the
conflict.
REPRESENTATIVE ROKEBERG said, "I sit corrected. Representative
Berkowitz is correct in those areas that do have overlap with the
other bill."
REPRESENTATIVE CROFT advised members that he had a "side-by-side"
of the different tobacco bills.
CHAIRMAN GREEN asked whether that had been presented to the
subcommittee.
REPRESENTATIVE CROFT said no, they'd just made it in-house.
REPRESENTATIVE BERKOWITZ indicated his staff member, currently out
of town, had prepared it.
Number 0541
CHAIRMAN GREEN explained to Representative Kott, "We're at the
point of saying that we may be duplicative or in conflict with the
bill we just passed out."
REPRESENTATIVE PETE KOTT, sponsor of SSHB 159, replied that he
couldn't comment on CSSSHB 189(JUD) because he wasn't present when
it was heard. He said, "This bill makes it a violation, the ...
first offense being $250, within a two-year period, and subsequent
increasing fines."
CHAIRMAN GREEN advised him that the previous bill was punishing
only for selling tobacco to minors, with a couple of different
classifications of misdemeanors.
REPRESENTATIVE KOTT explained, "This does not take it to a
misdemeanor level. It's just a violation and does cover not only
those who sell it but those who provide it to the minor. It could
be someone else of legal age, outside of a retailer or wholesaler."
REPRESENTATIVE BUNDE said he didn't see one bill superseding the
other or being duplicative until voted on, on the House floor. Two
levels of violation were being offered. While he wouldn't expect
both bills to become law, they provided the body a choice.
Number 0612
REPRESENTATIVE ROKEBERG recalled, from the House Labor and Commerce
Standing Committee hearing, that testimony indicated additional
provisions in SSHB 159 relate to authorities' ability to revoke or
suspend a business's endorsement for a violation. He believes this
bill goes somewhat beyond the previous bill and has merit in those
areas. Whereas he believed CSSSHB 189(JUD) focused on the sales
clerk, this focuses on the business itself, because the business
has a responsibility to the state and has the endorsement granted
by the department to conduct that type of business.
CHAIRMAN GREEN pointed out that this also covers a person.
Number 0678
REPRESENTATIVE ROKEBERG said he appreciated that. On the one hand,
it may be appropriate to ask legal counsel, via a conceptual
amendment, to conform the two bills, if that is the sponsor's wish.
Or, as Representative Bunde mentioned, the bills could be forwarded
to stand on their own merits.
Number 0697
REPRESENTATIVE PORTER said while Sections 1 and 2 are obviously not
in conformance with CSSSHB 189(JUD), there is another element in
here. Noting the existence of amendments to lower the age, he said
he'd vote for those. He believes it would be inconsistent to have
two military bases where smoking is legal for 19-year-olds and 20-
year-olds and then to preclude them from coming into the city where
other adults could smoke and they couldn't.
REPRESENTATIVE PORTER stated, "So, to the extent that we have
already amended ... the one section, and the major difference in
the second section is the age anyway, because ... it is, by law,
now a violation to possess or purchase, I would suggest we just
delete Sections 1 and 2, and Section 3, if it is the will of the
committee, to the current age and pass the bill."
Number 0760
REPRESENTATIVE ROKEBERG suggested it would be easier to vote on his
own amendment regarding the age first. He offered Amendment 1, 0-
LS0287\P.1, Ford, 4/17/97, which read:
Page 1, line 5:
Delete "21"
Insert "19"
Page 1, line 6:
Delete "21"
Insert "19"
Page 1, line 7:
Delete "21"
Insert "19"
Page 1, line 8:
Delete "21"
Insert "19"
Page 2, line 5:
Delete "21"
Insert "19"
Delete "21"
Insert "19"
Page 2, line 15:
Delete "21"
Insert "19"
Page 2, line 31:
Delete "21"
Insert "19"
Page 3, line 7:
Delete "21"
Insert "19"
Page 3, line 21:
Delete "21"
Insert "19"
Page 3, line 22:
Delete "21"
Insert "19"
Page 3, line 30:
Delete "21"
Insert "19"
Page 4, line 25:
Delete "21"
Insert "19"
Page 6, line 22, through page 7, line 1:
Delete all material.
Renumber the following bill sections accordingly.
REPRESENTATIVE ROKEBERG explained that this lowers the age in the
committee substitute from 21 to 19, which conforms it to existing
state law and to CSSSHB 189(JUD).
REPRESENTATIVE CROFT objected for discussion purposes. He asked
what the testimony was in the House Labor and Commerce Standing
Committee that caused the change from 19 to 21.
Number 0827
REPRESENTATIVE KOTT explained that the change was the result of a
sponsor substitute, not an amendment. The amendment offered in the
Labor and Commerce Standing Committee was to return it to age 19,
which he believed had failed by a vote of 5 to 1. Representative
Kott said, "It's my understanding that the military establishments
would conform to state law, although I would have to confirm that.
... So, I don't think you'd have that hodgepodge of being able to
smoke on base and then not being able to smoke downtown."
REPRESENTATIVE KOTT said the rationale for increasing it to 21 is
that perhaps 3 or 4 percent of smokers begin beyond age 19, such as
when they get into the workplace where they are surrounded by
adults with the habit. It was just an opportunity to give them an
extra year to think about it. Having said that, Representative
Kott advised members that he wasn't opposed to the amendment.
REPRESENTATIVE CROFT indicated he had no objection to bringing the
age back down. He removed his objection.
CHAIRMAN GREEN asked whether there was any further objection.
There being none, Amendment 1 was adopted.
REPRESENTATIVE PORTER offered as Amendment 2 the deletion of
Sections 1 and 2, with renumbering as appropriate.
REPRESENTATIVE CROFT objected for discussion purposes.
REPRESENTATIVE KOTT stated his understanding that this would
conform it to the previous bill. He explained, "The reason why we
put this in, in this fashion, is that it does establish a penalty,
not a flexible penalty that could be adjusted by the magistrate,
since it's my understanding that on first offenses, anyone caught
using tobacco products under the age are taken before the
magistrate, at which point they are issued a $25 fine, even though
there is up to $250. ... You know, $25 is not that much of an
incentive not to do it. So, the incentive here is to establish a
firm $250, no adjustment."
REPRESENTATIVE PORTER said since they had reconformed everything to
below age 19, he would amend his motion to delete only Section 1,
not Section 2.
REPRESENTATIVE BERKOWITZ suggested it would have perhaps been
simpler if they'd deleted Sections 1 and 2 from the previous bill.
He said there is consistency in Representative Kott's bill.
CHAIRMAN GREEN noted that there was already a motion on the floor.
REPRESENTATIVE PORTER asked for clarification.
CHAIRMAN GREEN said, "He was suggesting that we go back to the bill
we just passed and rescind their Sections 1 and 2, and leave these
here; I believe that's what you had in mind."
REPRESENTATIVE BERKOWITZ replied, "That's what I had in mind. And
I'm not speaking for or against; I'm speaking during the discussion
phase here."
Number 1018
REPRESENTATIVE PORTER stated, "In my understanding, the effect of
it would be that Section 2 would alter, by increasing the fine
capability, not affect anything else that we did in the first bill.
Deleting Section 1 would then leave in place what we did in the
first bill in that whole area. Whereas Section 3, of course, is a
new area."
REPRESENTATIVE JAMES asked whether he was talking about the first
paragraph of Section 1 or the whole section.
REPRESENTATIVE BUNDE said it was the whole section.
CHAIRMAN GREEN specified it was (a), (b) and (c).
Number 1065
REPRESENTATIVE CROFT noted that CSSSHB 189(JUD) had just amended
(d) and added "(g), (h), on through." He stated, "I don't see it
affecting (a), (b) and (c) as [SSHB] 159 does." He asked
Representative Porter, "If we remove Section 1, you believe that
would leave all ... the misdemeanor, now, penalties for selling,
and by leaving Section 2 in, would establish, for the first time,
a violation for possession?"
Number 1107
REPRESENTATIVE PORTER replied, "No. It is currently a violation,
... and we didn't do anything in that area in the first bill. What
it would do would set up a higher level of capability of fine ...
for an existing violation of possession."
REPRESENTATIVE CROFT said he understood Section 2. He asked, "What
you're doing on Section 1 would have what effect, as compared to if
we didn't adopt your amendment?"
REPRESENTATIVE PORTER explained, "By deleting Section 1, this bill
then will have no impact on that particular statute, and what will
go forward is what we did to that particular statute in the first
bill, 189, which was change a violation to a two-stage
misdemeanor."
REPRESENTATIVE CROFT said, "It leaves (a), (b) and (c) alone in
statute, because 189 never touched it, and we're getting rid of the
section that touched it in 159. So, we'd leave (a), (b) and (c) of
[AS] 11.76.100 as it stands."
REPRESENTATIVE PORTER responded, "With the exception that we would
change `negligently' to `knowingly', which is what we did in 189
with the amendment." He specified that they'd left in effect AS
11.76.100 in terms of what offenses it incorporates. "And it
incorporates the giving or selling of tobacco to a minor," he said.
"It changes the standard in that from `negligently' to `knowingly',
but when you get down to the (d), which establishes what kind of an
offense it is, it takes away the violation and adds the two-stage
misdemeanor (indisc.). By deleting Section 1 of the bill we're
considering now, we leave all of that in place."
Number 1285
REPRESENTATIVE CROFT withdrew his objection.
CHAIRMAN GREEN reminded members that Amendment 2 does away with
Section 1 and renumbers accordingly. He asked whether there was an
objection. There being none, Amendment 2 was adopted.
Number 1352
REPRESENTATIVE ROKEBERG noted that page 3, lines 16 through 18,
says, "A prosecution for violation of this subsection may not be
brought unless a prosecution is also brought for violation of AS
11.76.100." He was double-checking to make sure this wouldn't
present a conflict.
REPRESENTATIVE PORTER asked whether the concern was about the word
"violation." He then explained that a violation of the statute
means that one has committed the offense, not that it is or isn't
a "violation" or a "misdemeanor."
REPRESENTATIVE ROKEBERG said this is okay; AS 11.76.100 is a "broad
brush," and there is no citation of an individual subsection.
Number 1414
REPRESENTATIVE BUNDE noted the sponsor's indication that underage
people caught possessing tobacco receive a $25 fine, which doesn't
get their attention; now, with a $250 fine, it will get their
attention. He agreed tobacco use is price-sensitive.
REPRESENTATIVE PORTER made a motion to move from committee CSHB
159(L&C), as amended, with individual recommendations and any
attached fiscal notes.
Number 1470
REPRESENTATIVE ROKEBERG objected. He directed members' attention
to page 4, lines 13 through 18, which says, "(g) A person who
violates this section is guilty of a violation and upon conviction
...." Noting that it relates to the endorsement and to
restrictions on the sale of tobacco and tobacco products, he asked
whether they need to conform this to CSSSHB 189(JUD) as well.
REPRESENTATIVE CROFT replied that this is AS 11.76.107, selling
without the proper endorsement or without doing the proper carding,
which logically may be a violation.
Number 1535
REPRESENTATIVE PORTER stated, "The offense for which this (g)
section refers, I think, is a person engaging in the business
failing to properly instruct their employees. I think that is
sufficiently different from the other offenses of actually giving
to the minor that I would not be uncomfortable with that
designation. ... I don't feel strongly one way or the other. ...
But we made a crime out of the offense of giving it to the minor;
this is a violation for an employer not appropriately notifying his
employees of something."
REPRESENTATIVE CROFT indicated he'd stopped to make sure he was
correct. He stated, "I read it as it being a violation to sell
this without the proper license; to not demand proof of age when
you should; to put your vending machine in an improper place; or to
not, as Representative Porter says, train your clerks correctly.
... It would be appropriate to have those technical, if you will,
violations be a violation and the actual proved selling to a minor
be a misdemeanor." He said it wouldn't be inconsistent. He
suggested the committee could make that choice.
Number 1620
REPRESENTATIVE PORTER referred to page 3, lines 19 and 29, which
says, "(d) A person engaged in the retail business of selling a
tobacco product shall notify each individual employed" of all of
those things. He stated, "So, the offense that we're saying is a
violation is his or her failure to notify the employees that those
things are offenses. If the employee violates that provision, they
still are guilty of a misdemeanor, as we have established."
REPRESENTATIVE CROFT agreed but pointed out that it says, "A person
who violates this section"; it doesn't say "subsection". He
stated, "So, it's the entire .107. ... You're right on that, but in
addition, (a), (b). [Subsection] (b) says you may not sell tobacco
via vending machine; so, if you do, even to someone overage, if
it's in the improper place, you could commit a violation.
[Subsection] (c) says a person engaged shall demand proof. If you
fail to demand proof of somebody who is 26, that's a violation; if
they're 19, that's a misdemeanor."
REPRESENTATIVE CROFT continued, "And so, all down the line, it
seems at least a reasonable distinction it's making between
violating some of the technical I-put-my-machine-in-the-wrong-
place, I-didn't-card-when-I-should-have, but it didn't turn out to
be selling to a minor; it's just it violated these prophylactic
measures, if you will. And so, in each of those, I think you can
make at least a reasonable argument that violating them is somewhat
lesser ... than doing the misdemeanor of selling, actually, to a
minor."
REPRESENTATIVE ROKEBERG asked whether that is the sponsor's
interpretation.
REPRESENTATIVE KOTT said that is his interpretation.
Number 1743
REPRESENTATIVE ROKEBERG expressed concern about sales provisions,
being consistent with the prior bill. He mentioned particular
concern about vending machines.
REPRESENTATIVE JAMES said the prior bill didn't deal with vending
machines.
CHAIRMAN GREEN agreed but noted that it is still a sale.
REPRESENTATIVE ROKEBERG said, "It's a sale, right. I mean, you
have an endorsed premise, you have the right to have the vending
machine, but then this is a matter of control over it. ... Here, in
this bill, you have a violation subject to the penalty clause only,
whereas in the other bill, you'd have a misdemeanor."
REPRESENTATIVE PORTER stated, "But again, if I may, Mr. Chairman,
the offense is for just inappropriately having the vending machine
someplace, not selling to the minor. Any situation that results in
selling to the minor turns out to be a crime."
REPRESENTATIVE ROKEBERG referred to page 1 of CSSSHB 189(JUD),
lines 12 through 14. He then stated, "In existing law, it says,
`who maintains a vending machine in violation of (a)(2) of this
subsection commits a violation and upon ... a conviction is
punishable by a fine of not less than $300.' Well, we got a little
inconsistent, 50 bucks' worth. And the $300 is in existing statute
now. But I think, Mr. Chairman, if I recall the bill sponsor's
endeavor, he wanted to stair-step it, rather than just keep it a
flat $300."
CHAIRMAN GREEN asked whether the sponsor would entertain a friendly
amendment that the first step would be $300, as it is in existing
law, rather than $250, with the second step being $500.
REPRESENTATIVE KOTT said he'd go along with whatever the committee
wanted.
REPRESENTATIVE ROKEBERG offered Amendment 3: "Page 4, line 14,
deleting `$250' and adding `$300'."
Number 1933
REPRESENTATIVE BERKOWITZ objected for discussion purposes. He
mentioned district court and asked Anne Carpeneti about potential
problems in terms of raising the amount above $250, which may
entitle someone to a jury trial.
ANNE CARPENETI, Assistant Attorney General, Legal Services Section,
Criminal Division, Department of Law, explained, "The supreme court
recently held in Dutch Harbor Seafoods that a person who could be
fined for $250 under the civil provisions of ... the constitution
would be given a right to a jury trial if ... the civil fine was
more than $250. That has been withdrawn by the court, and we have
asked them to reconsider that decision. And they are reconsidering
it now. ... We are proceeding as if they hadn't made that decision
at this point. But we're not very firm on that because they
haven't reissued their opinion. But they did withdraw it, and it
is being briefed as we speak. We don't expect a decision before
fall."
CHAIRMAN GREEN asked, "So, are you suggesting, then, in the prior
bill, where we still have it in statute at $300, that that should
perhaps be reduced?"
MS. CARPENETI replied, "At this point, I wouldn't suggest that
because the opinion has been withdrawn, and when it happens, I
suppose, then ... we would recommend that you make adjustments.
But until that decision is issued finally, I wouldn't suggest that.
I personally wouldn't.
Number 2092
REPRESENTATIVE BERKOWITZ said he wanted to be clear on what the
Dutch Harbor Seafoods case did, as he hadn't seen it. He stated,
"Anything, whether it comes under the criminal code or not under
the criminal code, ... a potential fine of $250 or more would allow
the defendant to seek a jury trial."
MS. CARPENETI said although she hadn't read the opinion in several
months, she believed it was in excess of $250. After reading that
opinion, they'd concluded $250 was "safe" from having a jury trial
hinge on it.
REPRESENTATIVE BERKOWITZ asked whether the access to a jury trial
is contingent upon the amount of potential fine, rather than the
fine actually imposed.
MS. CARPENETI replied, "I believe so, yes."
Number 2164
REPRESENTATIVE CROFT said his concern was different. He referred
to Representative Porter's amendment and noted that they'd left in
(a), (b) and (c) of AS 11.76.100. He stated, "It defines where you
can and cannot have a vending machine and defines, as we're looking
at it, that is a violation, a fine of $300. We have a violation of
$250 here. So, that's one ... inconsistency."
REPRESENTATIVE CROFT continued, "The more important inconsistency,
I think, is that it restricts it in different places. And so,
under the provision in current law, it says, basically, `you can't
sell to a minor or have a vending machine at all,' and then (b)
says, `but you can have it in these situations.' So, in (b), it
says you can have it on a licensed premises, generally, as long as
it's as far as practical from the primary entrance and supervised.
In this section, we say, `you can have it where alcoholic beverages
are sold,' basically the same thing. And it has the supervision.
But is says, `and inaccessible.' So, ... they both have to be
supervised in a place where alcohol is served, but one has to be as
far as practical from the primary entrance; if you don't do that,
you get hit for $300. If it's not inaccessible to the public where
the licensed public is closed, a different kind of thing, it's
$250. And I guess you'd have to do all three to escape liability
by these two competing sections."
REPRESENTATIVE CROFT continued, "Not only that, the only other
section in .100 is a break room exception. So, you can either have
it on a `licensed alcohol' with these, or a break room, and this
has other partially overlapping but somewhat contradictory
exceptions to it."
TAPE 97-77, SIDE A
Number 0006
REPRESENTATIVE PORTER offered a conceptual amendment. Considering
that they didn't know what the result of the jury trial issue would
be, he'd feel more comfortable "moving the $300 back to $250 but
adding, instead of the mandatory $250, the language that we had in
the $300, `no less than'." He explained, "The $250, we've got a
fine of $250, period. But in the section that we're concerned
about, that's inconsistent with the $300, it says, `no less than
$300,' wherever the heck it was."
An unidentified speaker said he believed it was .100(d).
Number 0043
REPRESENTATIVE PORTER continued, "So, what I would suggest would be
that we ask the bill drafter to do two things: Make the two fines
no less than $250 and the middle one there, also, no less than
$500, so as to be consistent. Can you fine for more than $1,000 in
a violation? I think you can. So, no less than $1,000, also. And
to adopt ... the more restrictive language for the placement of the
vending machine, in both areas." He indicated he didn't know
whether the new or old language was more restrictive.
CHAIRMAN GREEN asked whether they'd still have a conflict, as this
says "no less than $250", while the prior bill says "no less than
$300." He mentioned going back to the previous bill.
REPRESENTATIVE PORTER replied, "We don't have to change that bill."
REPRESENTATIVE ROKEBERG suggested they could easily rescind the
action on the previous bill, so that it would be on the record,
after Representative Porter proceeded with the current amendment.
CHAIRMAN GREEN concurred.
REPRESENTATIVE PORTER continued with his conceptual amendment,
"sans dealing with the $300." He asked that the bill drafter adopt
the more restrictive of the language for placement of the vending
machine and add to the stepped-up violation fines of no less than
$250, no less than $500, and no less than $1,000.
Number 0310
REPRESENTATIVE CROFT objected to say he interprets the more
restrictive language to be "part of one and part of another, that
is, the `where alcoholic beverages are sold.'" He didn't know
which was more restrictive, "not near the entrance" or "you can't
get into it when it's closed."
REPRESENTATIVE PORTER said the more specific one.
REPRESENTATIVE CROFT suggested they should choose, because he was
a little confused about which is more specific. He asked whether
he could make a friendly amendment regarding that, then stated,
"Regarding a place where alcoholic beverages are sold, ... both
provisions would require supervision. One says, `and far away from
the primary entrance.' The other says, `you can't get at them when
it's closed.' Which one do we ....?"
REPRESENTATIVE JAMES said, "All of them."
REPRESENTATIVE CROFT asked, "You want to make all three? I guess
it shouldn't be near the entrance and you shouldn't be able to
...."
CHAIRMAN GREEN said he liked that.
REPRESENTATIVE PORTER agreed.
REPRESENTATIVE CROFT continued, "And then just one more thing, so
that they know and we don't have a question come back: In the
other area, it says, `or you can have one in an employee break room
or other controlled area of a private workplace that is not
generally considered a public place.' The bill we have in front of
us says you can either have it in a factory, business, office, or
other place that is not open to the public or a place that is open
to the public but to which a person under the age of 21 is denied
access. Which of those alternatives does the committee feel is
more restrictive?"
REPRESENTATIVE ROKEBERG mentioned subsection (2) on page 3, which
refers to persons under the age of 21.
REPRESENTATIVE CROFT noted that it is now 19.
REPRESENTATIVE ROKEBERG agreed, then suggested they could also
delete subsection (3), unless there is another area they'd be
denied access to, which didn't have alcoholic beverages.
REPRESENTATIVE CROFT responded, "I don't know."
REPRESENTATIVE ROKEBERG asked whether Representative Croft was
worried about the break room.
REPRESENTATIVE CROFT indicated he was just worried that they say
which is more specific. He said, "And I don't even know in these
two." He mentioned the break room or other controlled area of a
private workplace.
REPRESENTATIVE ROKEBERG suggested that would be more restrictive
than subsection (1).
REPRESENTATIVE CROFT agreed that the statute, as it stands, "with
section (2), employee break room or other controlled area of a
private work place," would be the more restrictive and, therefore,
the one they intend to incorporate.
REPRESENTATIVE PORTER responded, "That's it. And we incorporated
the best of both out of the first one."
CHAIRMAN GREEN and REPRESENTATIVE CROFT agreed.
REPRESENTATIVE ROKEBERG asked whether this is part of a change to
Amendment 3 or another amendment.
REPRESENTATIVE PORTER said it is a new amendment.
CHAIRMAN GREEN named it Amendment 4.
REPRESENTATIVE ROKEBERG asked whether they had adopted Amendment 3,
"which raised it up to $300."
CHAIRMAN GREEN said, "We did, yes." He asked for a clarification
so that there was no question about Amendment 4.
REPRESENTATIVE PORTER explained that the noncontroversial part is
what they are doing to subsection (c), beginning at page 1, line
13, and continuing to page 2, lines 1 and 2, adding "no less than"
in front of the $250 figure, the $500 figure, and the $1,000
figure. In addition, they are adopting, in the placement of the
vending machine, "both languages, the existing statute and the
bill, that would end up saying, `not available after closing and as
far away as practical,' or whatever the wording is, `from the
entrance.'"
CHAIRMAN GREEN commented, "You can't access it."
REPRESENTATIVE CROFT said, "Right. And that's for ... places where
alcoholic beverages are sold. And the more restrictive other
definition, which is in place of (1) and (2) on page 3, lines 4
through 7, we used the language from the current statute, which is
11.76.100(b)(1), (b)(2), `in an employee break room or other
controlled area of a private workplace that is not generally
considered a public workplace', and that that's more restrictive
than (1) and (2) in ... those sections."
REPRESENTATIVE CROFT removed his objection.
CHAIRMAN GREEN asked whether there was any further objection.
There being none, Amendment 4 was adopted.
REPRESENTATIVE ROKEBERG made a motion to rescind Amendment 3.
There being no objection, it was so ordered.
REPRESENTATIVE ROKEBERG made a motion to temporarily table SSHB 159
for the purposes of rescinding their action on SSHB 189 and making
a specific amendment. There being no objection, it was so ordered.
SSHB 189 - RESTRICT TOBACCO SALES
CHAIRMAN GREEN announced that the committee would again hear
Sponsor Substitute for House Bill No. 189, "An Act relating to sale
of tobacco and tobacco products; and providing for an effective
date."
REPRESENTATIVE ROKEBERG made a motion to adopt an amendment to page
1, line 14, to delete "$300" and insert "$250". There being no
objection, it was so ordered.
Number 0835
REPRESENTATIVE ROKEBERG made a motion to move 0-LS0711\F, Ford,
4/21/97, as amended, from the committee. There being no objection,
CSSSHB 189(JUD) moved from the House Judiciary Standing Committee.
SSHB 159 - TOBACCO PURCHASE, POSSESSION, SALE, ETC.
CHAIRMAN GREEN announced the committee would again hear Sponsor
Substitute for House Bill No. 159, "An Act relating to sale, gift,
exchange, possession, and purchase of tobacco and tobacco products;
and providing for an effective date." He noted that they had
significantly amended the bill that day.
REPRESENTATIVE ROKEBERG made a motion to move CSSSHB 159(L&C),
version 0-LS0287\P, as amended, from committee with individual
recommendations and attached fiscal note. There being no
objection, CSSSHB 159(JUD) moved from the House Judiciary Standing
Committee.
ADJOURNMENT
Number 1024
CHAIRMAN GREEN adjourned the House Judiciary Standing Committee
meeting at 3:21 p.m.
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