Legislature(1999 - 2000)
04/12/1999 01:55 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
April 12, 1999
1:55 p.m.
MEMBERS PRESENT
Representative Pete Kott, Chairman
Representative Joe Green
Representative Norman Rokeberg
Representative Jeannette James
Representative Lisa Murkowski
Representative Eric Croft
Representative Beth Kerttula
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 79
"An Act relating to letters of credit under the Uniform Commercial
Code; and providing for an effective date."
- MOVED HB 79 OUT OF COMMITTEE
HOUSE BILL NO. 151
"An Act relating to revocation and reinstatement of the driver's
license of a person at least 14 but not yet 21 years of age."
- HEARD AND HELD; ASSIGNED TO SUBCOMMITTEE
SENATE COMMITTEE SUBSTITUTE FOR SENATE BILL NO. 99(FIN)
"An Act to clarify the meaning of 'decennial census of the United
States' in art. VI, Constitution of the State of Alaska, to prevent
discrimination in the redistricting of the house of representatives
and the senate, and to prohibit expenditures of public funds for
population surveys or sampling for certain purposes relating to
legislative redistricting without an appropriation."
- MOVED HCS CSSB 99(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 43
"An Act relating to police training surcharges imposed for
violations of municipal ordinances."
- SCHEDULED BUT NOT HEARD
* HOUSE JOINT RESOLUTION NO. 19
Proposing an amendment to the Constitution of the State of Alaska
requiring legislative confirmation of the appointed members of the
judicial council.
- BILL HEARING CANCELED
* HOUSE JOINT RESOLUTION NO. 30
Proposing amendments to the Constitution of the State of Alaska
repealing provisions relating to the constitutional budget reserve
fund and providing that the balance in the fund be deposited into
the budget reserve fund established by statute.
- SCHEDULED BUT NOT HEARD
(* First public hearing)
PREVIOUS ACTION
BILL: HB 79
SHORT TITLE: UNIFORM COMMERCIAL CODE: LETTERS OF CREDIT
SPONSOR(S): LABOR & COMMERCE BY REQUEST
Jrn-Date Jrn-Page Action
2/03/99 132 (H) READ THE FIRST TIME - REFERRAL(S)
2/03/99 133 (H) LABOR AND COMMERCE, JUDICIARY
2/26/99 (H) L&C AT 3:15 PM CAPITOL 17
2/26/99 (H) HEARD AND HELD
2/26/99 (H) MINUTE(L&C)
3/03/99 (H) L&C AT 3:15 PM CAPITOL 17
3/03/99 (H) MOVED OUT OF COMMITTEE
3/03/99 (H) MINUTE(L&C)
3/05/99 360 (H) L&C RPT 5DP
3/05/99 360 (H) DP: ROKEBERG, HALCRO, HARRIS,
CISSNA,
3/05/99 360 (H) MURKOWSKI
3/05/99 361 (H) ZERO FISCAL NOTE (DCED)
4/07/99 (H) JUD AT 1:00 PM CAPITOL 120
4/07/99 (H) SCHEDULED BUT NOT HEARD
4/12/99 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 151
SHORT TITLE: REVOCATION OF MINOR DRIVER'S LICENSE
SPONSOR(S): REPRESENTATIVES(S) KOTT, Austerman
Jrn-Date Jrn-Page Action
3/22/99 531 (H) READ THE FIRST TIME - REFERRAL(S)
3/22/99 531 (H) JUD
3/24/99 562 (H) COSPONSOR(S): AUSTERMAN
3/29/99 (H) JUD AT 1:00 PM CAPITOL 120
3/29/99 (H) SCHEDULED BUT NOT HEARD
4/07/99 (H) JUD AT 1:00 PM CAPITOL 120
4/07/99 (H) TABLED
4/07/99 (H) MINUTE(JUD)
4/08/99 (H) JUD AT 1:00 PM CAPITOL 120
4/08/99 (H) HEARD AND HELD
4/09/99 (H) JUD AT 1:00 PM CAPITOL 120
4/09/99 (H) HEARD AND HELD
4/12/99 (H) JUD AT 1:00 PM CAPITOL 120
BILL: SB 99
SHORT TITLE: REDISTRICTING BOARD/CENSUS FIGURES
SPONSOR(S): RULES
Jrn-Date Jrn-Page Action
3/11/99 476 (S) READ THE FIRST TIME - REFERRAL(S)
3/11/99 476 (S) JUD
3/17/99 (S) JUD AT 1:30 PM BELTZ 211
3/17/99 (S) MOVED OUT OF COMMITTEE
3/17/99 (S) MINUTE(JUD)
3/18/99 599 (S) JUD RPT 3DP 1NR
3/18/99 599 (S) DP: TAYLOR, TORGERSON, DONLEY; NR:
ELLIS
3/18/99 599 (S) FISCAL NOTE (LAW)
3/18/99 599 (S) ADDITIONAL REFERRAL TO FIN
3/22/99 (S) FIN AT 9:00 AM SENATE FINANCE 532
3/22/99 (S) MOVED COMMITTEE SUBSTITUTE (FIN) FROM
COMMITTEE
3/22/99 (S) MINUTE(FIN)
3/22/99 631 (S) FIN RPT COMMITTEE SUBSTITUTE 6DP
1NR NEW TITLE
3/22/99 632 (S) DP: TORGERSON, PARNELL, PHILLIPS,
GREEN,
3/22/99 632 (S) DONLEY, WILKEN; NR: ADAMS
3/22/99 632 (S) ZERO FISCAL NOTE (LAW/S.FIN)
3/23/99 (S) RLS AT 10:50 AM FAHRENKAMP 203
3/23/99 (S) MINUTE(RLS)
3/25/99 682 (S) RULES TO CALENDAR AND 1 OR 3/25/99
3/25/99 685 (S) READ THE SECOND TIME
3/25/99 685 (S) FIN COMMITTEE SUBSTITUTE ADOPTED
UNAN CONSENT
3/25/99 685 (S) ADVANCED TO THIRD READING UNAN
CONSENT
3/25/99 685 (S) READ THE THIRD TIME CSSB 99(FIN)
3/25/99 686 (S) PASSED Y14 N5 A1
3/25/99 687 (S) ELLIS NOTICE OF RECONSIDERATION
3/26/99 704 (S) RECONSIDERATION NOT TAKEN UP
3/26/99 704 (S) TRANSMITTED TO (H)
3/29/99 598 (H) READ THE FIRST TIME - REFERRAL(S)
3/29/99 598 (H) JUD
4/09/99 (H) JUD AT 1:00 PM CAPITOL 120
4/09/99 (H) SCHEDULED BUT NOT HEARD
4/12/99 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
JANET SEITZ, Legislative Assistant
to Representative Norm Rokeberg
Alaska State Legislature
Capitol Building, Room 24
Juneau, Alaska 99801
Telephone: (907) 465-4968
POSITION STATEMENT: Provided sponsor statement for HB 79.
L.S. (JERRY) KURTZ, JR., Member
National Conference of Commissioners
on Uniform State Laws
1050 Beech Lane
Anchorage, Alaska 99501
Telephone: (907) 258-6051
POSITION STATEMENT: Testified in support of HB 79.
ARTHUR H. PETERSON, Uniform Law Commissioner
for Alaska
350 North Franklin Street
Juneau, Alaska 99801
Telephone: (907) 586-4000
POSITION STATEMENT: Testified in support of HB 79.
PET CRANDALL, Representative
Alaska Bankers Association
123 Seward Street
Juneau, Alaska 99801
Telephone: (907) 586-3324
POSITION STATEMENT: Testified in support of HB 79.
LINDA WRIGHT
P.O. Box 105
Soldotna, Alaska 99669
Telephone: (907) 262-9694
POSITION STATEMENT: Testified on HB 151.
MARTHA HODSON, Member
Guardian for Family Rights
P.O. Box 3687
Soldotna, Alaska 99669
Telephone: (907) 260-9156
POSITION STATEMENT: Testified on HB 151.
LINDA JOHNSON, Legal Advisor
Anchorage Youth Court
P.O. Box 102735
Anchorage, Alaska 99510
Telephone: (907) 274-5986
POSITION STATEMENT: Testified on HB 151.
ANNE D. CARPENETI, Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
Telephone: (907) 465-3428
POSITION STATEMENT: Testified on HB 151.
ROBERT BUTTCANE, Juvenile Probation Officer
Youth Corrections
Division of Family and Youth Services
Department of Health and Social Services
P.O. Box 110630
Juneau, Alaska 99811-0630
Telephone: (907) 465-2212
POSITION STATEMENT: Testified on HB 151.
CORY WINCHELL, Administrative Assistant
to Representative Pete Kott
Alaska State Legislature
Capitol Building, Room 118
Juneau, Alaska 99801
Telephone: (907) 465-3777
POSITION STATEMENT: Testified on HB 151.
KEVIN HYDE
P.O. Box 105
Soldotna, Alaska 99669
Telephone: (907) 262-4889
POSITION STATEMENT: Testified on HB 151.
TOM MOFFATT, Legislative Assistant
to Senator Tim Kelly
Alaska State Legislature
Capitol Building, Room 101
Juneau, Alaska 99801
Telephone: (907) 465-3822
POSITION STATEMENT: Sponsor of SB 99.
KEVIN JARDELL, Legislative Assistant
to Representative Joseph Green
Alaska State Legislature
Capitol Building, Room 214
Juneau, Alaska 99801
Telephone: (907) 465-4931
POSITION STATEMENT: Testified on SB 99.
JAMES BALDWIN, Assistant Attorney General
Governmental Affairs Section
Civil Division
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
Telephone: (907) 465-3600
POSITION STATEMENT: Testified on SB 99.
ACTION NARRATIVE
TAPE 99-28, SIDE A
Number 0001
CHAIRMAN PETE KOTT called the House Judiciary Standing Committee
meeting to order at 1:55 p.m. Members present at the call to order
were Representatives Kott, Green, James, Murkowski, Croft and
Kerttula. Representative Rokeberg arrived at 2:40 p.m.
HB 79 - UNIFORM COMMERCIAL CODE: LETTERS OF CREDIT
CHAIRMAN KOTT announced the first order of business is HB 79, "An
Act relating to letters of credit under the Uniform Commercial
Code; and providing for an effective date."
Number 0049
JANET SEITZ, Legislative Assistant to Representative Norm Rokeberg,
Alaska State Legislature, stated that the House Labor and Commerce
Standing Committee introduced HB 79 at the request of the uniform
law commissioners for Alaska. Article 5 of the Uniform Commercial
Code (UCC) needs to be revised to reflect changes in technology and
business practices. The National Conference of Commissioners on
Uniform State Laws in 1995 proposed the revisions. As of January,
39 other jurisdictions have adopted them. In order for Alaska to
keep up with developments in commercial law and letters of credit,
it needs to adopt this bill as well. She noted that Mr. Art
Peterson, a uniform law commissioner for Alaska, is here to answer
any technical questions.
Number 0180
[THE RECORD REFLECTS THAT L.S. (JERRY) KURTZ' TESTIMONY IS
INTERMITTENTLY AUDIBLE.]
L.S. (JERRY) KURTZ, JR., Member, National Conference of
Commissioners on Uniform State Laws, testified via teleconference
from Anchorage. He is a retired attorney, and has represented both
sides of letters of credit. Alaska has had the old version, or
existing version, of UCC Article 5 for almost 40 years. It works
well and there has been very little litigation under it. The new
one simply embellishes it to catch up with technology and perhaps
make a little bit of a better balance between debtors and
creditors.
Number 0347
ARTHUR H. PETERSON, Uniform Law Commissioner for Alaska, came
before the committee to testify. He is also an attorney with the
law offices of Dillon and Findley. He noted that Pete Crandall, a
banker, is in the audience to answer any banking questions. The
basic thrust of the bill is to recognize what is going on in the
area of commercial law with letters of credit. The UCC Article 5
was drafted in the 1940's and 1950's, and the concepts were based
on the thinking of that time. Clearly, a lot has been done in the
intervening decades, such as the use of computers, E-mail, fax
machines, etc. In addition, Alaska hasn't had a lot of litigation,
but there has been conflicting court decisions amongst the various
states. The bill would resolve those inconsistencies and
facilitate the modern way of doing business. It is a major
industry. As of 1989, it was a $200-billion business. He is sure
that the figure is considerably higher today.
Number 0562
CHAIRMAN KOTT said this particular issue has been before the
legislature a few times, but this seems to be the most pervasive
change. He asked Mr. Peterson whether this is something that has
been agreed to nationally.
MR. PETERSON replied yes. This bill is a product of the National
Conference of Commissioners on Uniform State Laws, as was the
original UCC. The conference continually works on various articles
in order to update them. Thirty-nine states have already enacted
this amendment to the UCC, so Alaska had better get with it. This
was before the legislature last year. It passed the House, but got
stopped in the Senate Judiciary Standing Committee for some unknown
reason.
Number 0674
REPRESENTATIVE GREEN referred to a list of states that have adopted
the amendment, and asked Mr. Peterson whether Texas has adopted it
yet. Texas is listed under "Introductions in 1999".
MR. PETERSON replied he is not sure how fast they operate in Texas.
They could very well have passed it by this time.
REPRESENTATIVE GREEN said some of the states that haven't passed
this amendment - Pennsylvania, New York, Louisiana and Texas - are
pretty well-known for their financial institutions. He asked Mr.
Peterson what is the hold up for them.
Number 0719
MR. PETERSON replied New York, where guidance and leadership is
looked at for commercial law matters, has a system where all
revisions to uniform acts have to go through a section of the bar
association which causes delays. He has not heard of any
opposition, however. He can't comment on Louisiana, other than
that they are under a civil law approach which is a little bit
different than the common law approach. They have adopted most of
the UCC; he just doesn't know where they stand on Article 5. He
can't imagine that they wouldn't adopt it because a good bit of it
deals with international trade.
Number 0827
REPRESENTATIVE GREEN said he is wondering why Alaska should "get on
board" quickly when one of the largest financial states will
probably be the last to "get on board."
Number 0860
MR. PETERSON pointed out that California, Illinois and all of the
Northwestern states have already enacted the amendment. He would
not worry because New York is not on the list; they will be there.
Number 0924
REPRESENTATIVE GREEN said if Wyoming, Nebraska or Montana were not
on the list that would be one thing. He just noticed that some of
the states, that he expected to see, were not on the list. It's
not a major issue; he was just wondering if there was a reason.
Number 0940
CHAIRMAN KOTT said he would expect that New York, Texas or Florida,
for example, would be interested in this issue since it is an
important tool used in international trade. He asked Mr. Peterson
what would be the consequence of not passing this measure this
year.
Number 0970
MR. PETERSON replied the state would fall behind in using letters
of credit for Alaskans dealing in international trade. There would
be no advantage to lag behind. He asked, Would National Bank of
Alaska or First National Bank of Anchorage fall apart? He replied,
no. Providing for this would benefit and facilitate commerce. As
far as he can tell, there would be no disadvantage to any
particular identifiable group by enacting this. In addition, a
hold up in Texas or Florida could be that their bar associations
want to tinker with a certain aspect. He doesn't have that
information, however.
Number 1079
REPRESENTATIVE CROFT asked Mr. Kurtz, Jr. whether he heard him say
that there would be a shift between creditor and debtor.
[THE RECORD REFLECTS THAT L.S. (JERRY) KURTZ' TESTIMONY IS
INTERMITTENTLY AUDIBLE.]
MR. KURTZ, JR. replied Representative Croft heard him correctly.
He referred to Section 10(b) of the bill which specifically spells
out a reasonable time to respond to a presentation of a letter of
credit. One problem that has persisted for many years is that the
occasional irresponsible financial institution would sit on a
letter rather than acting on it thereby putting a business person
in a very difficult situation. Nothing in the bill really changes
the balance, except that it makes it easier for the banks and
borrowers to utilize what Mr. Peterson was talking to. He referred
to page 3, line 7, of the bill - "document" - and noted when the
law was put into effect throughout the country in the 1960's,
everybody envisioned a tightly sealed letter of credit going from
one destination to another, but now with the expansion of faxes and
E-mail this provision brings letters of credit into the same age as
what the financial institutions have been in for years now when
handling checks, for example.
Number 1276
PET CRANDALL, Representative, Alaska Bankers Association, came
before the committee to testify. He also works for the National
Bank of Alaska. They both support HB 79. The UCC for letters of
credit spells out the responsibilities of the parties between
commerce transactions. The disadvantage in not passing updating
legislation is dealing with a state that has thereby opening up
gaps for attorneys to refute a transaction of some type. The state
has existed with the current UCC, and there haven't been that many
disputes, but the players need to be on the same common playing
field. He declared that the states that haven't passed a revision
yet will join the effort as time goes on. He pointed our that even
though New York has not, huge states like California and Delaware
have. The more states on board, the playing field becomes much
more compatible and protects the rights of both buyers and sellers.
Number 1391
REPRESENTATIVE MURKOWSKI asked Mr. Kurtz, Jr. whether he is aware
of the hold up in New York and whether it is a fact, as Mr.
Peterson indicated, that they have to go through their bar
association in order to pass uniform type of legislation.
Number 1420
[THE RECORD REFLECTS THAT L.S. (JERRY) KURTZ' TESTIMONY IS
INTERMITTENTLY AUDIBLE.]
MR. KURTZ, JR. replied he doesn't know any more than Mr. Peterson.
He has frequently seen New York lag behind other states in respect
to the commercial code. He pointed out that Texas and Louisiana
are the only two states west of the Mississippi River that have not
updated their commercial codes, except for Alaska.
Number 1451
REPRESENTATIVE CROFT referred to the current AS 45.05.104 and noted
that letters of credit need to be signed, but a telegram will
suffice, if a signature cannot be gotten. The new AS 45.05.104
allows the parties to have an agreement or use standard industry
practices. If it was strictly construed to a signature, there must
be ways other than the actual delivery of a document to do this,
otherwise it wouldn't have worked very well. Allowing for
agreements or standard industry practices is one example of what is
trying to be fixed.
Number 1505
REPRESENTATIVE MURKOWSKI noted, when the bill was heard in the
House Labor and Commerce Standing Committee, the testimony
indicated that there is a need to stay on top of things, and that
there is not a reason to delay moving it through this year. She
said, "We need to get on board."
Number 1536
REPRESENTATIVE MURKOWSKI made a motion to move HB 79 from the
committee with individual recommendations and the attached fiscal
note(s). There being no objection, HB 79 was so moved from the
House Judiciary Standing Committee.
HB 151 - REVOCATION OF MINOR DRIVER'S LICENSE
CHAIRMAN KOTT announced the next order of business is HB 151, "An
Act relating to revocation and reinstatement of the driver's
license of a person at least 14 but not yet 21 years of age."
Number 1570
CHAIRMAN KOTT indicated there is a committee substitute for HB 151,
1-LS049\S, Ford, 4/12/99. It basically gives the youth court some
authority to hear cases involving possession of alcoholic beverages
in violation of AS 04.16.050. It provides the department the
opportunity to use the youth courts. It was recently brought to
his attention to also include consumption.
Number 1608
REPRESENTATIVE MURKOWSKI noted that the title changed, and asked
Chairman Kott whether there have been changes to any sections
regarding possession.
CHAIRMAN KOTT replied no. The title changed to make it tighter.
Number 1636
REPRESENTATIVE GREEN made a motion to adopt the committee
substitute for HB 151 (1-LS0492\S, Ford, 4/12/99). There being no
objection, it was so moved.
Number 1658
[THE RECORD REFLECTS THAT LINDA WRIGHT'S TESTIMONY IS
INTERMITTENTLY AUDIBLE.]
LINDA WRIGHT testified via teleconference from Kenai. She still
wonders whether the young people are getting their due process
rights. When HB 21 and HB 299 were heard, it was assured that the
hearing would allow for due process rights. She doesn't feel that
is the case, however. Young adults and minors are being forced to
provide the only evidence that can be used against them. In fact,
the language in AS 28.15.184(g) indicates that hearings shall be
"limited" to the issues of whether the person possessed or used a
controlled substance. She asked, "And, if a person should miss the
seven-day deadline, can we assume they don't need or warrant their
due process rights?" She replied, "No, we can't." She hopes that
the legislators will confer to the people who have and continue to
be injured by this unfair law, and together come up with something
that is both fair and constitutional.
Number 1758
[THE RECORD REFLECTS THAT MARTHA HODSON'S TESTIMONY IS
INTERMITTENTLY AUDIBLE.]
MARTHA HODSON, Member, Guardian for Family Rights, testified via
teleconference from Kenai. She referred to her daughters of which
one didn't get her driver's license until she was 21. Her son will
be close to 30 years old before getting his driver's license. She
has a problem with that. She doesn't agree with them drinking, but
they have graduated from high school and can vote for "you all."
Her son was charged with the possession of a can chewing tobacco at
19 years of age. She admitted that she bought it for him and she
admitted that to the judge. She reiterated she doesn't like them
drinking and driving. Something needs to be done to restore the
right of teenagers to talk to an attorney. Something needs to be
done about the law to control them before the age of 21, but the
DMV [Division of Motor Vehicles] should not have that much power
after the age of 21. The courts should have that power.
Number 1914
CHAIRMAN KOTT pointed out that the committee substitute would
eliminate the term "consecutive" and insert the term "concurrent."
He is not sure how anybody could be picked up with the "Use It,
Lose It" law with a can of chewing tobacco, unless it has been
laced with "some good stuff."
Number 1935
LINDA JOHNSON, Legal Advisor, Anchorage Youth Court, testified via
teleconference from Anchorage. She thanked the committee for
considering alcohol consumption and possession cases as good for
the youth courts. The wording, however, includes it under the
Department of Health and Social Services when it does not handle
violations, which is what a consumption of the possession of
alcohol is. It gives the department a viewpoint. According to the
McLaughlin Youth Center, they do not have the resources to take on
the alcohol cases. She encouraged the committee members to
consider amending that section to include language of jurisdiction
for referrals. In addition, curfew and tobacco cases are also
violations, and she encouraged the committee members to include
them as well.
Number 2040
CHAIRMAN KOTT announced he is in receipt of a document from Ms.
Johnson indicating those suggestions.
Number 2049
REPRESENTATIVE MURKOWSKI asked Ms. Johnson whether community work
service in terms of a penalty or fine would be handled by the youth
courts.
MS. JOHNSON replied the Anchorage board of directors do not want to
take on alcohol cases, but the other youth courts around the state
want to. She thinks as soon as the statute is fixed and is in
compliance with the courts then the Anchorage board of directors
will change its mind. A standard penalty would be a certain amount
of community work service between 5 to 15 hours, a mandatory essay
of 500 to 3,000 words, and an alcohol class. The Anchorage Youth
Court currently uses a youth intervention program from the
Volunteers of America organization. Other types of classes would
be anger management or any other specific class depending on what
happened during the arrest.
Number 2124
REPRESENTATIVE MURKOWSKI asked Ms. Johnson whether the Anchorage
board of directors doesn't want to take on alcohol cases simply
because of the jurisdiction issue, or is there something else
contributing to the reluctance.
MS. JOHNSON replied it is mostly the problem with the new court
opinion that just came down. The board doesn't want the Anchorage
Youth Court itself to simply be a monitoring agency. The board
wants it to have a real effect. The board is afraid that there
would be very little incentive for someone to follow through with
a youth court penalty the way it is written now. The board doesn't
know how to change that at the time, however.
Number 2172
REPRESENTATIVE MURKOWSKI said, in recognition of the increase in
the number of revocations of those under 21 years of age for
possession or consumption, she asked Ms. Johnson what this would do
to the youth court's workload. In other words, is it prepared to
take on an increase like this?
MS. JOHNSON replied it has considered the possible workload.
According to a district attorney in Anchorage, he receives no more
than 300 cases per year. Currently, the Anchorage Youth Court
takes between 450 to 550 cases per year, but they are at the
misdemeanor and felony levels. The Anchorage Youth Court would
have to restructure its system. There is a limited amount of
student members to draw from to make up a court. It would probably
be structured more like traffic court and a little less like
superior court.
Number 2220
CHAIRMAN KOTT asked Ms. Johnson whether the penalties would be on
a case-by-case basis.
MS. JOHNSON replied the court is run on a case-by-case basis. It
would depend on the mitigators or aggravators. The judges would
have to be questioned, but the referring authority would be able to
make recommendations on each case.
Number 2265
CHAIRMAN KOTT asked Ms. Johnson what the costs are associated with
an alcohol rehabilitation program.
MS. JOHNSON replied the one that the Anchorage Youth Court
currently uses is $125. It satisfies DMV's requirement, so a
person can "kill two birds with one stone."
Number 2280
CHAIRMAN KOTT asked Ms. Johnson how often the Anchorage Youth Court
meets.
MS. JOHNSON replied, currently, it has cases two to three days per
week.
Number 2287
CHAIRMAN KOTT asked Ms. Johnson whether it's awkward for a person
to appear in youth court who is 21 plus years of age.
MS. JOHNSON replied, currently, the Anchorage Youth Court does not
take anybody who is 18 years old or older. She doesn't think even
with alcohol cases youth courts would want to take 18-, 19-, or
20-year-olds.
CHAIRMAN KOTT asked Ms. Johnson whether that would require a
specification in statute.
MS. JOHNSON replied yes.
Number 2340
ANNE D. CARPENETI, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law, came before
the committee to testify. The Department of Health and Social
Services would not be the referring agency to the youth courts. It
would probably have to be the local police departments. There
would have to be a requirement to develop some sort of standards of
referral, if the wording is "may" rather than "shall". In
addition, unless consumption is added, the minor consumption law
would probably have to be revised for subsections to be charged
under, so that a police officer could cite a person with a
particular violation of possession rather than consumption. It
would be easier than having some sort of fact-finding after the
fact as to whether or not a person was cited for having a beer in
his hand or on his person. She suggested requiring the chief
administrative officer of the Alaska Police Standards Council to
develop standards for what cases should go to the youth courts.
She cited age as an example.
TAPE 99-28, SIDE B
Number 0001
ROBERT BUTTCANE, Juvenile Probation Officer, Youth Corrections,
Division of Family and Youth Services, Department of Health and
Social Services, came before the committee to testify. The
department does not have the authority over alcohol violation
cases. The wording needs to be changed so that the youth courts
can get these cases from the referring entities.
Number 0023
CHAIRMAN KOTT said the committee recognizes its error.
Number 0029
REPRESENTATIVE MURKOWSKI asked Mr. Buttcane whether the Department
of Health and Social Services is involved with the alcohol course
that the youth courts send people to.
MR. BUTTCANE replied the course referenced by Ms. Johnson is
approved by the Division of Alcoholism and Drug Abuse, and is
recognized by the Division of Motor Vehicles. In that sense the
department is connected to that program.
Number 0062
REPRESENTATIVE MURKOWSKI asked Mr. Buttcane whether that program is
geared towards adults or underage drinkers.
MR. BUTTCANE replied that program is an alcohol information
program. There isn't a formal screening process like in the adult
system. There are provisions for a juvenile alcohol safety action
program, but it has not been funded.
Number 0116
CORY WINCHELL, Administrative Assistant to Representative Pete
Kott, Alaska State Legislature, came before the committee to
testify. He stated that the language under the committee
substitute is not within the purview of the department. That can
be changed. It was the intent to empower youth courts to hear
minor-in-possession cases. It was the original intent for the "Use
It, Lose It" law to come into compliance with its catch-name. It
was also the original intent to address some of the convoluted
fact-patterns surrounding possession by running it concurrently
rather than consecutively, so that kids had a chance to ameliorate
their behavior.
MR. WINCHELL further stated that there are two court cases
involving the "Use It, Lose It" law: Jada Quinn and Nina Storm v.
State and Rexford v. State. The Storm case was a two-two split.
It is not binding, only persuasive, and there were some good
arguments from the superior court. The two young adults involved
- Jada Quinn and Nina Storm - were in a campground outside of
Anchorage. They disclosed to the police that they had taken some
sips of beer and empty beer cans were lying around. They were 20
years old and were given a breath alcohol test. They blew .003 and
.006, respectively. They were not around a vehicle, so the court
worked through whether the revocation was punitive in nature or
remedial. The court got into an analysis of the nexus between the
time of drinking and its relation to a vehicle. In Rexford v.
State, a young man's driver's license was revoked before bringing
about the criminal charge. His attorney argued double jeopardy.
In other words, the taking of a driver's license is punitive in
nature, so the criminal action is double jeopardy. The court held
that an administrative license revocation is not punishment for
double jeopardy purposes. However, the court upheld that for due
process there might be a punishment involved.
Number 0293
REPRESENTATIVE ROKEBERG asked whether the committee substitute
speaks to the issues raised by the two court cases.
MR. WINCHELL replied no, but in side-meetings these kinds of
questions have been raised.
Number 0315
REPRESENTATIVE ROKEBERG said there is a split in the courts now and
for a change the legislature could give the courts guidance.
Number 0328
REPRESENTATIVE GREEN stated, when the original bill was passed,
former-Representative Cynthia Toohey indicated that it was an
attempt to go beyond the mere facts associated with a vehicle, but
to punish teenagers for drinking before their time. That seemed
like a good idea, but it hasn't been all that effective in cutting
out consumption. It has been more damaging toward the need of
people. If that is the case, the concept needs to be reviewed.
Maybe, there is another avenue to pursue.
Number 0374
REPRESENTATIVE JAMES said she saw a different level of complaint
between a minor drinking and driving and a minor drinking. They
are two different issues, and she wasn't willing to have the same
deterrent/penalty for them both.
Number 0403
MR. WINCHELL stated, in response to a comment made by
Representative Rokeberg last week regarding the criminality of
children by coming down so draconian, the bill does not seek to
address any consumption issues. It says, if a person uses alcohol
underage, it is against the law and a strong policy against that is
needed - the loss of one's driver's license.
CHAIRMAN KOTT noted the committee substitute does not address that;
it only gives the youth courts the opportunity to hear cases
involving possession.
REPRESENTATIVE ROKEBERG asked Chairman Kott whether a person can
still lose a driver's license for possession without driving.
CHAIRMAN KOTT replied yes. That is one of the main issues that
this committee needs to address.
Number 0445
REPRESENTATIVE ROKEBERG referred to an example whereby a
19-year-old lost his driver's license because he was in an area
where liquor was being served and his job because he didn't have a
license. He is living on his own and has a learning disability.
It was a series of stupid events that the law caused which should
not have happened in the first place.
Number 0482
CHAIRMAN KOTT asked Mr. Winchell, if a nexus is tied between the
use of alcohol and driving followed by a revocation, what effect
would that have on cases that have been thrown out by the courts,
but the revocation still stood.
Number 0522
MR. WINCHELL replied these are two different standards. The
administrative revocation, when a police officer has probable cause
to suspect consumption or possession, it is the same criminal law.
A license will be revoked within seven days and a person has the
right to appeal it. Pragmatically speaking, kids don't want their
parents to find out and are letting the appeals slide. According
to the DMV, the standard goes up for those who appeal. However,
having done several probable cause hearings, the officer's reasons
are stated and deferred to which establishes a higher standard.
The criminal standard is higher, but this is a noncriminal
violation under the current law. If a nexus is tied to a vehicle,
a driver's license would not be lost, unless there is probable
cause to suspect that somehow a person's drinking activity was tied
to a vehicle. If a person is out camping and consuming or
possessing alcohol and no vehicle is around, it would be difficult
to establish probable cause. Arguably, a nexus could be tied to
surrounding or leaning up against a running car, for example.
Number 0607
CHAIRMAN KOTT asked Mr. Winchell whether the cases that have been
tossed out by the courts would be minimal.
MR. WINCHELL replied a higher burden could still not be met in a
criminal case of possessing or consuming. However, by a probable
cause standard, and even a clear and convincing standard at the
appeals level, drinking has to be established around a car. He
said, "Kids aren't walking down the street after taking a sip of
beer and a police nabbing them and saying, 'Hey, I smell alcohol on
your breath.' And, then writing in their report the standard three
sentences, you know: bloodshot eyes, slurred speech, and slightly
gazed. So, they've got their probable cause." It would be a
little bit more difficult to charge and take their driver's
licenses away.
Number 0647
REPRESENTATIVE MURKOWSKI asked Mr. Winchell how a minor, who is
consuming, is tied to a car who says he has a designated driver.
Is he tied to the car because it is registered to his parents?
MR. WINCHELL replied he doesn't know, but if he was a prosecutor he
would argue there is a nexus to the vehicle because it is about to
drive somebody somewhere.
REPRESENTATIVE MURKOWSKI said she can see this becoming a slippery
slope.
Number 0705
REPRESENTATIVE JAMES said it is absolutely wrong for children
underage to be drinking. It is important that they understand the
seriousness of drinking and driving. The problem is, teenagers
have a real good understanding of what's fair and not fair. They
know about penalties, but if somebody else does something and
doesn't get penalized, they can see the unfairness. And, it
doesn't take much for teenagers to become rebellious for unfair
treatment. It seems that this should be done so that there are
steps along the way along with a real intensive campaign in the
schools. They need to understand that if they drink at all, they
could lose their driver's licence, even if they don't have one yet.
Number 0809
MR. WINCHELL said the original "Use It, Lose It" law said, if a
person consumes alcohol, that person will lose his driver's
license. The issue now is using it at all or using it around a
car. If it is not used around a car, a person would be put before
the purview of the youth courts.
Number 0854
REPRESENTATIVE ROKEBERG said, having listened to this and others
dealing with it, he has concluded that he would not be comfortable
supporting anything less than a real bright line of consuming while
driving or being a passenger with an open container inside the car.
The Storm case says that the provisions of existing Alaska law do
not require that a minor be operating or even be in close proximity
to a motorized vehicle. He thinks the law should be repealed.
Number 0952
KEVIN HYDE testified via teleconference from Kenai. He likes
Representative Rokeberg's idea. This is what he has been after,
not because he wants children to be consuming alcoholic beverages
or participating in the use of drugs, but for fairness. He would
like to see this process recriminalized and returned to the courts.
He said, give the courts the opportunity to be more flexible with
treatments for second offenders. Blanket situations is why there
are young people who are 18-19 years old and they can't drive until
they are 40 years old. A judge can make other decisions, can make
other referrals to different agencies, and can REPRESENTATIVE
BERKOWITZmore creative with punishments.
Number 1026
CHAIRMAN KOTT assigned the bill to a subcommittee consisting of
Representative Rokeberg as chair, Croft and himself. The
subcommittee is to consider the nexus of providing the youth courts
to hear both consumption and possession of alcohol related cases.
That may be more effective than recriminalizing the use of alcohol
again.
SENATE CSSB 99(FIN) - REDISTRICTING BOARD/CENSUS FIGURES
CHAIRMAN KOTT announced the next order of business is Senate CSSB
99(FIN), "An Act to clarify the meaning of 'decennial census of the
United States' in art. VI, Constitution of the State of Alaska, to
prevent discrimination in the redistricting of the house of
representatives and the senate, and to prohibit expenditures of
public funds for population surveys or sampling for certain
purposes relating to legislative redistricting without an
appropriation."
Number 1132
TOM MOFFATT, Legislative Assistant to Senator Tim Kelly, Alaska
State Legislature, came before the committee and read the following
sponsor statement into the record:
This legislation was introduced to end discrimination
against members of the Armed Forces in legislative
redistricting and insure that future redistricting plans
are based on census figures derived from an actual count
of every Alaskan.
Senate Bill 99 will eliminate confusion by placing in our
statutes clear answers to two major questions as we
prepare for the United States census in the year 2000 and
the subsequent redrawing of legislative district
boundaries. This legislation will end the discriminatory
practices of previous redistricting boards and direct
that census numbers derived from estimates or adjustments
based on statistical sampling will not be used to redraw
district lines.
The 1959 Alaska Constitution directed that only the
'civilian' population be considered when the boundaries
for State House and State Senate districts were drawn.
During the 1960's, reapportionment boards ignored the
presence of members of the Armed Services completely,
while later boards assigned various percentage values to
service members.
In 1970, each soldier, sailor, airman, marine and coast
guardsman in Alaska was counted as 11 percent of a
resident, while in the 1980 redistricting they were
counted as 35 percent of other Alaskans. That's even
worse discrimination than used before the Civil War when
slaves were counted at only 60 percent of a person for
congressional reapportionment. The redistricting board
of 1990 was the only one to count members of the military
equally with other residents.
Today, Alaskans recognize that occupational
discrimination is just as wrong as discrimination based
on race, religion, sex, age, color, or national origin
and that is why the voters removed the word 'civilian'
from the Alaska Constitution at the most recent 1998
election. But, court decisions from old legal challenges
to previous redistricting boards might still be used as
an excuse to undercount our neighbors in the military.
Senate Bill 99 will establish a statutory bar to future
redistricting discrimination and insure the men and women
serving here in our Armed Forces will not be treated as
second-class Alaskans.
Senate Bill 99 will also clarify questions regarding
which numbers from the United States Bureau of the Census
will be used by future redistricting boards to
reapportion Alaska's Legislature.
Some people have actively arguing that statistical
sampling and estimates replace the actual head count of
every American in the decennial census. Earlier this
year, the U.S. Supreme Court prohibited the use of
adjusted or estimated figures in reapportioning the seats
of the U.S. House of Representatives among the states.
But that decision left the door open for the Census
Bureau to develop figures through sampling and estimates
and make them available to the states along with the
results of the traditional count. This bill will close
that door in Alaska for purposes of legislative
reapportionment.
If the Census Bureau's report of the decennial census
includes more than one set of figures for Alaska, SB 99
will facilitate the work of the redistricting board and
avoid litigation over the plan they produce. Senate Bill
99 would prohibit them from using any numbers produced by
estimates or sampling adjustments and directs them to use
only the results of the actual count of Alaska's
population, just as the nation has been doing for the
past 210 years.
MR. MOFFATT added Senator Kelly understands that there is a
proposed House committee substitute and he thinks it is just fine.
Number 1411
CHAIRMAN KOTT indicated there is a proposed House committee
substitute for the committee substitute for SB 99, 1-LS0380\S,
Kurtz, 4/10/99. He noted the change is on page 3. It provides a
qualified voter the opportunity to bring a challenge against the
redistricting board to the superior court.
Number 1440
KEVIN JARDELL, Legislative Assistant to Representative Joseph
Green, Alaska State Legislature, came before the committee to
testify. He indicated there is also a grammatical change. The
proposed committee substitute adds the word "and" to page 2, line
2.
Number 1493
REPRESENTATIVE JAMES made a motion to adopt the proposed House
committee substitute for committee substitute for SB 99,
1-LS0380\S, Kurtz, 4/10/99. There being no objection, it was so
moved.
MR. JARDELL explained the changes instill an insurance of bringing
an action against using discriminatory practice or sampling
numbers. It also makes current statutory language comply with the
constitutional amendment passed last year. The constitutional
amendment required independent counsel for the board, and the
current statutes say that the attorney general's office shall
represent the state in all matters. It also brings in the concept
that by the time the board is constituted there isn't enough time
to do the needed preparations to ensure that a fair and unbiased
redistricting is completed. The compilation of geographical and
cultural information takes an enormous amount of time. In
recognizing that, the proposed House committee substitute gives the
authority to the Alaska Legislative Council to come up and work
with the Administration on developing data bases, budgets and
accounting systems - the details that will have to be in place for
the board to draft a fair and unbiased redistricting proposal.
Number 1695
CHAIRMAN KOTT asked Mr. Jardell whether the legislative council
would be the funding source for the redistricting board.
MR. JARDELL replied it is assumed that the legislative council
would be the funding source. It would be within its power to go to
supplemental appropriations. It would have the ultimate
responsibility to ensure that it gets done.
Number 1731
REPRESENTATIVE GREEN said the state is behind the curve on data
gathering. This would be an avenue to get the train rolling, but
problems could arise that would be beyond the authority of the
council.
Number 1771
REPRESENTATIVE CROFT referred to Article VI, section 3, of the
state constitution, and asked Mr. Jardell whether the bill attempts
to define what the legislature thinks the people meant when they
enacted the amendment to the constitution.
MR. JARDELL replied Representative Croft's question refers to the
original Senate bill and deferred it to the sponsor. In working on
the constitutional amendment and looking at the situation created
by the Clinton Administration since the amendment was passed, the
only requirement is that a census be completed for apportionment.
It doesn't speak to redistricting. He said, "Now, with--my
understanding of this is that what they're attempting to do is come
in and say, well, you can't just come up with numbers for some
other reason whether it be for federal funding or any other reason
and say--slap a (indisc.) and say this is the official one. The
one that is referenced in the United State's Constitution is the
one that they were intending to reference, and that this does, you
know, speak to that and express the will of the legislature, if it
does pass."
REPRESENTATIVE CROFT asked Mr. Jardell how is the will of the
legislature relevant to this.
MR. JARDELL replied that is his understanding of what the sponsor
in the Senate is trying to accomplish, and deferred the question to
the sponsor's representative.
Number 1959
MR. MOFFATT stated, when the amendment to the constitution was
passed, nobody envisioned that the official decennial census would
be anything other than that which has been in effect for 210 years.
The legislature can always seek to make things clearer, to make
suggestions, and to make laws. The members of the Senate Judiciary
Standing Committee consider this appropriate.
Number 2031
REPRESENTATIVE CROFT said it is not the legislature's place to
interpret the constitution. That is for another branch of
government. What role does the legislature have in telling the
people what they meant when enacting the constitution or a
constitutional amendment? According to his reading of the case
law, the legislature has almost no role in that, and properly so.
It is not what the legislature meant when putting the words before
the people, but what the people meant when they passed it.
Usually, the courts look at what the Official Election Pamphlet
said, what the voters heard, and what information was available to
them. When this issue has been tried, it has been uniformly
rejected for a legislature to attempt to interpret the constitution
or tell the people what they say it has to mean.
Number 2135
MR. MOFFATT stated, obviously, this is a matter for a philosophical
debate. He doubts that the voters had any information in the
pamphlet that the official decennial census of the United States
would be anything other than the traditional head count for the
purposes of reapportionment. That is how it has invariably been
done. The concept behind the original bill was because the use of
samplings or surveys in Alaska have been used for purposes of
discrimination, specifically against the military. This bill
mainly seeks to do what the legislature can do to prevent
discrimination, to prevent people being counted for less than a
whole person for purposes of voting or representation. He said, 10
year olds don't vote, but they are represented. The homeless may
not be registered to vote, but they are represented, as well as
those who suffer disabilities. The legislature has a proper
function in trying to be of every assistance to make sure that
discrimination does not occur, and that the actual numbers are
used, not just speculative ones. The courts may determine
differently, but the legislature is a policy making body and has
every right to do its best.
Number 2395
REPRESENTATIVE MURKOWSKI asked Mr. Jardell to clarify Section 4(d).
She can't imagine that the council independently would have the
expertise to develop a computerized system of what the board would
need.
TAPE 99-29, SIDE A
Number 0001
MR. JARDELL said it takes an enormous amount of time to work
through any computer system. This provision is attempting to have
the council work with those who have experience, such as Kathryn
Lizik with the Department of Labor and other experts to choose a
system, to put it in place, and to start working on it in order to
make sure it will operate when the board sits down and starts to
draw a redistricting plan. The idea is not to have the council
develop a system itself, but to make sure that one gets developed.
Number 0088
REPRESENTATIVE MURKOWSKI asked Mr. Jardell whether that would be
through a contractor, for example.
MR. JARDELL replied it certainly could be through a contractor.
It would be up to the council. The intent is that it gets done on
time.
Number 0121
CHAIRMAN KOTT said the council would not develop the software
itself, but it would ensure that there is a vendor out there to
provide the information needed, such as mapping. There are
probably a half dozen vendors out there now that have the resources
available to help.
MR. JARDELL noted there are about a half dozen systems designed
solely for redistricting at this time. It's a matter of finding
out which one would be best for Alaska because it has some
geographical problems that aren't considered in some of the
programs for the Lower 48. It's a matter of making a decision to
purchase or lease a program, and making sure that it is up and
running when the board needs to sit down and use it.
Number 0224
CHAIRMAN KOTT offered a technical amendment to change the language
to read, "responsible for the development of a computerized system"
[Section 4(d)]. There being no objection, it was so adopted.
Number 0300
MR. JARDELL stated the intent of the sponsor of the proposed House
committee substitute is not to step on the toes of the Senate Rules
Standing Committee. It is really to make sure that the job gets
done; to make sure that everything is completed; and to make sure
that all the tools are available for the board in an honest, fair
and unbiased condition.
Number 0369
REPRESENTATIVE CROFT asked Mr. Jardell whether he is testifying to
the intent of the Senate Rules Standing Committee. Is that
committee the sponsor of the committee substitute?
MR. JARDELL replied the sponsor of the committee substitute is
Representative Green. He is testifying on Representative Green's
intent.
Number 0397
REPRESENTATIVE GREEN commented that he dropped by the U.S. Census
Bureau when he was in Washington D.C. and was reassured of the
enormous amount of preparation. The bureau said that the state is
probably late. A state needs to gear up immediately which is why
the committee substitute was prepared. The states needs to have an
impartial organization and the council seems to be that
organization because it doesn't consider one side or the other. He
noted that at least it could get things started. The idea is to
gain as much data as possible, and to check out the programs. The
nuances would be done by the board.
Number 0492
REPRESENTATIVE MURKOWSKI asked Mr. Jardell how much would it cost
to do what the proposed House committee substitute is suggesting.
MR. JARDELL replied it would cost anywhere from $50,000 to $2
million. There would also be costs for litigation, support
services and contracting fees. There is a lot of room to add on
incidental costs.
Number 0576
CHAIRMAN KOTT commented the cost for software is anywhere from
$3,000 to $150,000 per unit depending on the services associated
with it. The figure of $50,000 is probably on the low end when
looking at personnel, meetings, office space, length of time from
start to finish, and support staff. The figure is probably closer
to $1 million.
Number 0675
REPRESENTATIVE GREEN noted the technical portion is probably closer
to $100,000. That doesn't include any litigation expenses.
Number 0700
REPRESENTATIVE MURKOWSKI asked what is happening with the process
now. In other words, if this wasn't done, where would it put the
state when it comes to the year 2000 census?
Number 0734
CHAIRMAN KOTT replied there would have to be a supplemental
appropriation probably from the legislature's and the Department of
Labor's budget for the software.
Number 0754
MR. JARDELL replied it's a good question. It speaks to the reason
for the proposed House committee substitute. No one knows what
would happen. No one is taking the responsibility at this time to
get the ball rolling. It is a state-federal program and most every
state is participating. Kathryn Lizik from the Department of Labor
has been working to designate different geographical features into
blocks to be used to collect data from. In towns and
municipalities, the blocks are mostly the area of a city block, but
there are a lot of blocks for a state with a very small population.
There is no plan once she is finished with that. The Division of
Elections [Office of Lieutenant Governor], and the Department of
Labor have indicated that they aren't doing anything.
Number 0868
MR. MOFFATT added that he was tangentially involved with the 1970
and 1980 reapportionment. The boards were operating in 1969 and
1979, respectively. Here, the board will not be constituted until
the year 2000. "So, we're behind the eight ball in the substantive
loss to catch up."
Number 0929
JAMES BALDWIN, Assistant Attorney General, Governmental Affairs
Section, Civil Division, Department of Law, came before the
committee to testify. He said a "severability" clause in a bill
makes him nervous. The drafter, obviously, was concerned that
something in the bill may be found to be unconstitutional. At
least, that's what he did as a bill drafter for the legislature
several years ago. He is involved in the preclearance activity on
voting laws to the U.S. Department of Justice (DOJ). He is,
therefore, concerned how the state will be positioned for the next
reapportionment. In the last election, the people voted on a
process for a redistricting board composed of the three branches of
government, under the theory that the balance would lead to a
fairer process. That's how it was presented to the people, and he
believes that the people accepted and believed that. He is
concerned, therefore, to see one branch tipping that balance in the
approach taken. "Now, you and I know that if you can control how
a board is staffed and the kind of computer equipment that it uses,
any kind of data that it considers, you have a big leg up over how
that board functions." That is how the other two entities involved
would view it. This is a partisan political process, and the aim
of the constitutional amendment was to try to get away from that.
He is concerned purely from a nonpartisan approach. And, having to
be involved in the preclearance and litigation of this, he is
concerned that a line is being crossed. He has discussed with Mr.
Kevin Jardell the need for a task force including a three-branch
effort. Therefore, he was disappointed to see this type of
approach. Maybe, Mr. Jardell is trying to get there somehow, but
is this the type of process that was intended with the
constitutional amendment? he asked. He noted that there is a group
within the Administration. It is set to meet tomorrow. The
committee will hear from the departments involved in this area that
the big problem is money. The Administration has given it a lot of
thought in terms of cost and computer systems, but it realizes it
can't do it on its own. The legislature will have to appropriate
money. There is a need to get things going, but he questions the
approach of placing it entirely within the legislative council.
Number 1264
MR. BALDWIN further stated that he is also concerned about the
sampling numbers. He was the losing party in the Hickel v. Cowper
case, which tried to define the terms of the constitutional budget
reserve fund in terms of appropriations. The Department of Law
said that there was no problem in passing a statute interpreting
and making the constitution specific. The supreme court reminded
the department, however, that was its job to interpret the
constitution and to make it specific. The legislature could do
things of that nature, but it would be given only some weight.
That is the approach being taken here - trying to define the terms
of a recently passed constitutional amendment as to what the
legislature meant by the relying "relying on the U.S. census." The
census plans to give the state two sets of numbers which is a
problem in terms of litigation and for any number purposes. He has
talked to a lot of people with technical knowledge within the
Administration and they don't know how the numbers will turn out.
Who will be the winner? Who will be the loser? As a result, the
Administration doesn't know what to do about them. They might be
good for some programs and might not be good for others, but the
underlying motive is to try and get a more accurate census number.
They are not intended to dilute anybody's voting lines. He
reiterated the Administration doesn't know whether to support or
oppose sampling numbers. The legislators have to look at that too
in terms of partisan politics and districts and what they mean for
each district. It really is a national political issue involving
whether Montana will lose a seat or New York will gain a seat. It
really has no relevance to Alaska with one congressman and a state
that is largely rural.
Number 1422
MR. BALDWIN further stated the Administration couldn't do a
military survey without an appropriation. A survey is very
expensive. It was the intent last year with HJR 44 not to do a
military survey. But, if the Administration goes to preclear this
with the U.S. Department of Justice, it may well ask the state to
prove that there is no discriminatory effect. He wondered how the
state would do that without a military survey. It has the power to
do that under section 5 of the Voting Rights Act. If that is the
case, the Administration will be back asking for money. In
addition, he sees that the preclearance would be done by the person
hired as the independent legal counsel to the board. The current
regulation says that the chief legal officer for the state does the
preclearance. He doesn't know how that would square with DOJ
regulations. He doesn't know if that is totally baring. He would
be relieved to be out of the preclearance game on this one because
it will be hot and heavy. That concern needs to be considered.
Number 1599
CHAIRMAN KOTT pointed out, that at an overview made before the
committee by Kathryn Lizik [Department of Labor], he indicated he
was going to forward to the Speaker of the House a letter
suggesting an ad hoc committee consisting of one person from the
House and Senate, two people from the Administration, and one
person from the Department of Law. That committee would meet on a
periodic basis, so that everybody knew what was going on. He has
also had three conversations with the Department of Labor
indicating that as well, but at this point the "left hand is out
here and the right hand is out here, and vice versa."
Number 1650
MR. JARDELL noted that Representative Green has contacted the
Administration on several occasions, and that he has spoken with
them as well on many occasions. They are still waiting for a
return phone call to convey the point person. The bill speaks to
the need to do something, and it speaks to the importance of acting
on it, given the time left in the session.
MR. JARDELL further noted that DOJ regulations say, "or other
authorized person." According to Representative Green's office and
Legislative Legal and Research Services [Legislative Affairs
Agency], the "other authorized person" would be in line with the
type of position in the bill.
MR. JARDELL further stated, in referencing partisanship, the
importance of ensuring that the adequate tools are provided far
outweigh any speculation of partisanship. It is recognized that
this has to get done, but nobody is doing anything about it, which
is why the bill is here.
Number 1758
REPRESENTATIVE GREEN asked Mr. Jardell to discuss the severability
clause in the bill.
MR. JARDELL replied the severability clause is in the bill because
there is doubt about what the courts would do. But, because the
importance of this is so high, if a portion is found
unconstitutional that's fine and it should be knocked out. The
assurance of the tools that are necessary is the reason for the
severability clause.
Number 1796
MR. MOFFATT stated the Senate Finance Standing Committee rejected
the $100,000 fiscal note for military surveys that Mr. Baldwin
referenced. "This bill, that the Senate Rules Committee has
sponsored was passed overwhelmingly in the Senate, specifically
sets forth that we don't want anything more to do with surveys,
particularly with the military. We want things to remain the same
as they were in 1990. No discounting or discrimination against the
military or any other Alaskan, and the numbers in 1990 the Justice
Department cleared nondiscrimination. It cleared and okayed that
we don't use surveys and statistical tinkering. The only reason
that those samples have ever been used in the past in Alaska is to
discriminate. The Justice Department has already cleared the
procedure of using the census figures for head count - the
enumeration that has been used for 210 years. We don't need to
spend $100,000 to come up with any other justification. The census
of 2000 will be (indisc.) there and that's all the numbers that the
Department of Law or anybody else needs to justify a fair and
equitable reapportionment or redistricting. And, the use of any
surveys, I think, even might jeopardize our case. Thank you."
Number 1874
REPRESENTATIVE GREEN stated the current federal administration
would favor some sort of statistical analysis because, in very high
concentrations of minorities, it's extremely difficult to get a
true head count. In Alaska it's just about the opposite. A
village count is very simple because everybody knows everybody.
The only problem would be Anchorage which is broken down by small
blocks. A true nose count in Alaska makes a whole lot more sense
than trying to do some sort of projection that is envisioned for
large metropolitan areas with extreme numbers of varying types of
minorities. The Census Bureau has said for allocation of
legislators at the federal level the actual head count will be
used, and is leaving the individual states to determine how they
will do it. "We're just saying, if it's good there, it should be
good all the way around."
Number 1953
CHAIRMAN KOTT closed the meeting to public testimony.
Number 1977
REPRESENTATIVE JAMES made a motion to move the proposed House
committee substitute for committee substitute for SB 99,
1-LS0380\S, Kurtz, 4/10/99, from the committee with individual
recommendations and the attached fiscal note(s).
REPRESENTATIVE CROFT objected. He remembers the arguments clearly
on HJR 44, and the civilian versus military issue. The
discrimination that is being discussed has long been a dead letter
in the constitution. The word "civilian" hasn't been used in the
constitution for decades. It was not appropriate to take out the
word "resident" and the question is whether or not the state should
be counting residents or nonresidents. Most people would think
that the state would want to count the residents for
reapportionment purposes. "We may have a significant amount of a
population that it--the federal government will tell us very little
about that is nonresident. There are various procedures to figure
out whether they're residents or nonresidents, and we're being
prohibited from using those. I think it's just plain silly to
count people who don't reside here. It--and I think it's purely
for partisan purposes on--on calculation on how they might vote
that we're counting nonresidents in our apportionment. I was also
here for the discussion of--of--of what we'd specifically would say
in the reapportionment division to tie it to a very specific
number, and I remember very clearly then Representative, now
Speaker Porter saying we want--we wanted to be absolutely clear,
let's tie it to a number that will be put out - the official
decennial census of the United States. And, that's exactly what he
wrote and was passed. The new Article 6, section 3 says,
'reapportionment shall be based upon the population within each
House and Senate district as reported by the official decennial
census of the United States.' Now, oops we find out we don't like
the official decennial census of the United States, that over 200
years how we understand the best way to get an accurate count can
develop, and in fact it's been shown over and over mathematically
that for various reasons, sampling gives you a better number, If
done right, it is--it is irrefutable on good numbers that with
enough--with proper sampling can get you a better number than
trying to count every single person. 1, 2, 3, oh did I get Bill?
I'm up to a million three. That--so, we are now trying to fix the
fact that we were overly precise then. We wanted to be precise and
have a number. I remember Representative Porter saying it would
not be open to debate. It really isn't. But--but, for again
partisan political reasons we don't like the number that we tied
ourselves to just a year ago and so we're gonna attempt to change
it. Attempt, I say, because I don't think we have the power to do
this. The Hickel v. Cowper opinion is very clear that what the
twenty-first legislature has to say about what the twentieth
legislature meant in putting before the public an amendment to the
constitution that they for their own reasons approved just ain't
particularly relevant. You know, some of us served then, not all
of us, but us saying what they meant, more importantly proposing
something that the people approved is just not our place in
the--with three branches of government. We're suppose to have
checks and balances on each other and interpreting the constitution
is the classic role of the judiciary. It's why they were put there
200 years ago - to defend the minority against the majority, and to
depend the legislature--the people against the legislature trying
to go in certain areas. This is the problematic area that I think
may--that's such a close vote on that constitutional amendment.
People were legitimately worried about what we would do, we the
legislature, if we were involved in something that was so important
to us writing our own district lines. And, here we're trying to
get more and more involved. We're threatening funding on
positions, we're cutting off, we're trying to get in...To describe
the leg. council as an impartial body, particularly with the
history over the last two years of what is has done, strains
(indisc.). This is a partisan group trying to get in--much
involved in this area as they can and luckily we have very little
that we can't do. We're buying ourselves a lawsuit to say what we
can read in the statutes. We're trying to define what other people
did and what other people approved. But, more importantly we're
just more and more getting into an area that we know it is so
important to us we can't be trusted with it. It's so important to
us that we cannot resist the urge to play partisan games with.
It's also the reason that there was such trouble--there was such
worry about bringing the judiciary in. We're gonna put a case
before the supreme court that says we've defined it one way were we
right? And, the chief justice and four others are gonna vote on
that and then the chief justice is gonna appoint a person to
implement that. On this, on any number of--of judicial reviews it
is troubling on the same separation of power argument to have that
judicial officer involved. The heart of SB 99 to me is exactly
what Mr. Moffatt ended with. We want things to say the same as
they were in 1990. The 1990 census did an excellent job of
gerrymandering this state in--tilted towards a Republican majority,
and it is a desire that it stay that way. This is why we shouldn't
be involved in this process at all. And I object for all the
reasons...".
Number 2264
REPRESENTATIVE JAMES said she agrees with a lot of what
Representative Croft said. However, the legislature consistently
tries to make, in other areas, laws that are criticized as
unconstitutional. She believes that the court didn't make a
decision based on the intent of her last constitutional amendment
to the constitutional budget reserve fund or based on what she, as
a voter, said it was. The court read every single word and their
basic meanings. She believes it is necessary to have legislation
that describes what the legislature's intent. She certainly wants
to have everyone counted, but if "you don't count them where
they're residing, where are you gonna count them? And, people
should all be counted."
Number 2351
REPRESENTATIVE MURKOWSKI stated there isn't anybody at this table
or in this room that doesn't agree something needs to be started.
Personally, she would have preferred an approach suggested by Mr.
Baldwin and Chairman Kott - a task force comprised of members from
the Administration and legislature, so that there isn't an
appearance of bias or partisanship. She is not convinced that this
is a perfect approach, but it is better than the alternative -
inaction.
CHAIRMAN KOTT agreed that this is not a perfect approach. A task
force could have been formed, but it wouldn't have had any power to
appropriate money.
CHAIRMAN KOTT called for a roll call vote. Representatives Green,
James, Murkowski and Kott voted in favor of the motion.
Representative Croft voted against the motion. The motion passed
with a vote of 4-1. The HCS CSSB 99(JUD), was so moved from the
House Judiciary Standing Committee.
ADJOURNMENT
Number 2444
CHAIRMAN KOTT adjourned the House Judiciary Standing Committee
meeting at 4:15 p.m.
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