Legislature(1999 - 2000)

04/30/1999 01:20 PM House JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
         HOUSE JUDICIARY STANDING COMMITTEE                                                                                     
                   April 30, 1999                                                                                               
                     1:20 p.m.                                                                                                  
                                                                                                                                
                                                                                                                                
MEMBERS PRESENT                                                                                                                 
                                                                                                                                
Representative Pete Kott, Chairman                                                                                              
Representative Joe Green                                                                                                        
Representative Norman Rokeberg                                                                                                  
Representative Jeannette James                                                                                                  
Representative Eric Croft                                                                                                       
Representative Beth Kerttula                                                                                                    
                                                                                                                                
MEMBERS ABSENT                                                                                                                  
                                                                                                                                
Representative Lisa Murkowski                                                                                                   
                                                                                                                                
COMMITTEE CALENDAR                                                                                                              
                                                                                                                                
* HOUSE BILL NO. 154                                                                                                            
"An Act relating to the use of laser sighting devices."                                                                         
                                                                                                                                
     - HEARD AND HELD                                                                                                           
                                                                                                                                
HOUSE BILL NO. 214                                                                                                              
"An Act relating to litigation involving correctional facilities;                                                               
and amending Rules 59(f), 60(b), 62, and 65, Alaska Rules of Civil                                                              
Procedure."                                                                                                                     
                                                                                                                                
     - MOVED CSHB 214(JUD) OUT OF COMMITTEE                                                                                     
                                                                                                                                
(* First public hearing)                                                                                                        
                                                                                                                                
PREVIOUS ACTION                                                                                                                 
                                                                                                                                
BILL: HB 154                                                                                                                    
SHORT TITLE: ILLEGAL USE OF LASER POINTERS                                                                                      
SPONSOR(S): REPRESENTATIVES(S) KEMPLEN                                                                                          
                                                                                                                                
Jrn-Date    Jrn-Page           Action                                                                                           
 3/24/99       555     (H)  READ THE FIRST TIME - REFERRAL(S)                                                                   
 3/24/99       555     (H)  JUDICIARY                                                                                           
 4/30/99               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
                                                                                                                                
BILL: HB 214                                                                                                                    
SHORT TITLE: PRISON LITIGATION                                                                                                  
SPONSOR(S): REPRESENTATIVES(S) MULDER                                                                                           
                                                                                                                                
Jrn-Date    Jrn-Page           Action                                                                                           
 4/27/99      1027     (H)  READ THE FIRST TIME - REFERRAL(S)                                                                   
 4/27/99      1027     (H)  JUD                                                                                                 
 4/29/99               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
 4/29/99               (H)  HEARD AND HELD                                                                                      
 4/30/99               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
                                                                                                                                
WITNESS REGISTER                                                                                                                
                                                                                                                                
CHRIS KNIGHT, Researcher                                                                                                        
   for Representative Allen Kemplen                                                                                             
Alaska State Legislature                                                                                                        
Capitol Building, Room 112                                                                                                      
Juneau, Alaska  99801                                                                                                           
Telephone:  (907) 465-2840                                                                                                      
POSITION STATEMENT:  Presented HB 154 on behalf of sponsor.                                                                     
                                                                                                                                
REPRESENTATIVE ELDON MULDER                                                                                                     
Alaska State Legislature                                                                                                        
Capitol Building, Room 507                                                                                                      
Juneau, Alaska  99801                                                                                                           
Telephone:  (907) 465-2647                                                                                                      
POSITION STATEMENT:  Testified as sponsor of HB 214.                                                                            
                                                                                                                                
GERALD LUCKHAUPT, Attorney                                                                                                      
Legislative Legal and Research Services                                                                                         
Legislative Affairs Agency                                                                                                      
130 Seward Street, Suite 409                                                                                                    
Juneau, Alaska  99801                                                                                                           
Telephone:  (907) 465-2450                                                                                                      
POSITION STATEMENT:  Explained proposed CS and answered questions                                                               
                     regarding HB 214; testified on HB 154.                                                                     
                                                                                                                                
DEAN GUANELI, Chief 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 214; expressed concerns about                                                              
                     HB 154.                                                                                                    
                                                                                                                                
ALLEN J. COOPER, Director                                                                                                       
Division of Institutions                                                                                                        
Department of Corrections                                                                                                       
4500 Diplomacy Drive, Suite 207                                                                                                 
Anchorage, Alaska  99508-5918                                                                                                   
Telephone:  (907) 269-7409                                                                                                      
POSITION STATEMENT:  Answered questions regarding HB 214.                                                                       
                                                                                                                                
ACTION NARRATIVE                                                                                                                
                                                                                                                                
TAPE 99-47, SIDE A                                                                                                              
Number 0001                                                                                                                     
                                                                                                                                
CHAIRMAN PETE KOTT called the House Judiciary Standing Committee                                                                
meeting to order at 1:20 p.m.  Members present at the call to order                                                             
were Representatives Kott, Green, Rokeberg, James, Croft and                                                                    
Kerttula.                                                                                                                       
                                                                                                                                
                                                                                                                                
HB 154 - ILLEGAL USE OF LASER POINTERS                                                                                          
                                                                                                                                
Number 0078                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT announced that the first item of business would be                                                                
House Bill No. 154, "An Act relating to the use of laser sighting                                                               
devices."                                                                                                                       
                                                                                                                                
Number 0113                                                                                                                     
                                                                                                                                
CHRIS KNIGHT, Researcher for Representative Allen Kemplen, Alaska                                                               
State Legislature, came forward on behalf of the sponsor.  He                                                                   
explained that HB 154, introduced after speaking with an Anchorage                                                              
police officer, provides an avenue for halting disruption of                                                                    
community events.  In addition, he reminded members of the                                                                      
difficulty in differentiating between laser sighting weapons and                                                                
pointing devices, and that officers could feel the threat of                                                                    
imminent danger upon detecting a beam on them.  Current statutes on                                                             
assault in the fourth degree have a minimum requirement of 30 days                                                              
if an officer feels threatened or can prove that he or she was                                                                  
under the threat of imminent danger.  However, it is often                                                                      
difficult to prove a threat of imminent danger.  Therefore, HB 154                                                              
also allows in-line officers a second option for prosecution, by                                                                
amending the statutes to add another form of disorderly conduct,                                                                
with the requirement of just proving that the officer was under the                                                             
"painting" of a laser sighting device.                                                                                          
                                                                                                                                
Number 0284                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG asked if there are incidents that the                                                                   
Anchorage Police Department could cite in the state as examples.                                                                
                                                                                                                                
MR. KNIGHT replied that he doesn't have any examples in print.                                                                  
However, to his understanding, a court case was prosecuted                                                                      
successfully for assault in the fourth degree concerning a laser                                                                
sighting device, wherein the defendant admitted he had wanted to                                                                
see what the police officer's reaction would be.  Mr. Knight also                                                               
recounted a recent personal experience where laser sighting devices                                                             
were used to highlight a female cheerleader's body.  He noted that                                                              
he had provided to the committee aide some articles discussing                                                                  
various situations, and he informed members that a police officer                                                               
he knows is willing to provide more information, as well.                                                                       
                                                                                                                                
Number 0380                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT referred to an amendment that had just been                                                                
distributed, which read:                                                                                                        
                                                                                                                                
     Change Section 3 to Section 4                                                                                              
                                                                                                                                
     Add new Section 3:                                                                                                         
                                                                                                                                
     Section 3.  AS 11.61.110 is amended by adding a new subsection                                                             
     to read:                                                                                                                   
                                                                                                                                
     (d)  The provisions of (a)(8) of this section do not apply to                                                              
     a peace officer acting within the scope and authority of the                                                               
     officer's employment.                                                                                                      
                                                                                                                                
     Modify Section 4 to reflect correct subsection:                                                                            
                                                                                                                                
     Section 4.  AS 11.61.110 is amended by adding a new subsection                                                             
     to read:                                                                                                                   
                                                                                                                                
     (e)  In the section, "laser...                                                                                             
                                                                                                                                
REPRESENTATIVE CROFT said he believes it was proposed by the                                                                    
Department of Law.  He asked whether Mr. Knight had seen it.                                                                    
                                                                                                                                
MR. KNIGHT said no.                                                                                                             
                                                                                                                                
REPRESENTATIVE CROFT explained that the concern, to his belief, is                                                              
that putting this under "disorderly conduct" is fine, but there is                                                              
a need to ensure that it doesn't stop the prosecution Mr. Knight                                                                
had described for assault against a police officer, when the higher                                                             
crime can be proved.  He suggested HB 154 would be appropriate for                                                              
the run-of-the-mill harassment, however.  Representative Croft said                                                             
he believes that is all the amendment does.  He asked for                                                                       
confirmation that, at least conceptually, Mr. Knight and the                                                                    
sponsor have no problem with ensuring that an assault charge is                                                                 
still open, if assault can be proved.                                                                                           
                                                                                                                                
MR. KNIGHT replied, "We definitely don't want to preclude the                                                                   
higher option, which would be a Class A misdemeanor for assault in                                                              
the fourth degree.  So, if this amendment would actually increase                                                               
that option, then I think this is a great amendment."                                                                           
                                                                                                                                
Number 0497                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG requested clarification about the                                                                       
classification of the offense under AS 11.61.110(a).                                                                            
                                                                                                                                
Number 0527                                                                                                                     
                                                                                                                                
MR. KNIGHT explained that currently if an officer feels the threat                                                              
of imminent danger, that is prosecuted as assault in the fourth                                                                 
degree, which carries a minimum of 30 days in jail and a maximum,                                                               
as a Class A misdemeanor, of a year in jail.  This legislation                                                                  
allows for a second prosecutable offense, in that an individual can                                                             
be charged with disorderly conduct.  If the device were used on a                                                               
police officer, the charge wouldn't be limited by the current                                                                   
statutes for disorderly conduct, with a maximum of 10 days.                                                                     
Rather, the judge would have discretion under the entire statute of                                                             
Class B misdemeanors, from zero to 90 days, allowing greater                                                                    
flexibility.                                                                                                                    
                                                                                                                                
Number 0601                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT informed members that the committee would lay aside                                                               
HB 154 until after the hearing on HB 214.                                                                                       
                                                                                                                                
                                                                                                                                
HB 214 - PRISON LITIGATION                                                                                                      
                                                                                                                                
Number 0624                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT announced that the next item of business would be                                                                 
House Bill No. 214, "An Act relating to litigation involving                                                                    
correctional facilities; and amending Rules 59(f), 60(b), 62, and                                                               
65, Alaska Rules of Civil Procedure."  The first hearing had been                                                               
the previous day, and some amendments had been adopted.  He noted                                                               
that there was a new proposed committee substitute (CS).                                                                        
                                                                                                                                
Number 0643                                                                                                                     
                                                                                                                                
REPRESENTATIVE ELDON MULDER, Alaska State Legislature, sponsor,                                                                 
pointed out that he had been awaiting the arrival of Mr. Luckhaupt,                                                             
drafter, because of the belief that there was an amendment,                                                                     
discussed the previous day by Representative Croft, yet to be                                                                   
adopted.  However, Mr. Luckhaupt had incorporated that amendment                                                                
into the new proposed CS.                                                                                                       
                                                                                                                                
Number 0686                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG made a motion to adopt the proposed CS,                                                                 
version 1-LS0562\I, Luckhaupt, 4/30/99, as a work draft.  There                                                                 
being no objection, Version I was before the committee.                                                                         
                                                                                                                                
CHAIRMAN KOTT asked Mr. Luckhaupt to go through the changes.                                                                    
                                                                                                                                
Number 0718                                                                                                                     
                                                                                                                                
GERALD LUCKHAUPT, Attorney, Legislative Legal and Research Services                                                             
Legislative Affairs Agency, informed members that Representative                                                                
Croft's amendment, which put a time limit on consent decrees that                                                               
didn't have to comply with the provisions of this Act, can be found                                                             
on page 4, lines 10 and 11.  He noted that the sentence that begins                                                             
on line 8, continuing to the comma on line 10, basically existed                                                                
the previous day.  Added is, "provided the prospective relief does                                                              
not continue for a period of more than two years."  He stated his                                                               
understanding that an outside time limit of two years is desired.                                                               
                                                                                                                                
MR. LUCKHAUPT pointed out other changes.  In response to one                                                                    
amendment proposed the previous day by the Department of Law,                                                                   
regarding motions to modify, on page 3, line 30, he had added                                                                   
"modify or" [stated by Mr. Luckhaupt as "modify or terminate"]. To                                                              
make that section work, he also had added, on page 4, line 4, the                                                               
words "modification or".  In addition, he had changed "prison" to                                                               
"correctional facility" wherever it appeared in the bill.                                                                       
                                                                                                                                
Number 0842                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT referred to page 4, lines 10 and 11.  He noted                                                             
that a consent decree would only last two years.  He said he'd                                                                  
thought the mechanism would be that it couldn't continue unless, at                                                             
the end of two years, the court looked at it and said there are                                                                 
still ongoing, current - not prospective - statutory or                                                                         
constitutional violations.                                                                                                      
                                                                                                                                
MR. LUCKHAUPT replied that he'd had some trouble figuring out how                                                               
to do that.  It is the concept in the bill for consent decrees and                                                              
prospective relief ordered by a court when the court finds a                                                                    
present violation.  However, he pointed out, a court cannot impose                                                              
injunctive relief until it finds a current violation; so, that is                                                               
rather a given.                                                                                                                 
                                                                                                                                
MR. LUCKHAUPT said this was allowing the state to agree to                                                                      
injunctive relief without a current violation, as he understood it,                                                             
in order to avoid litigation costs, or something along that line.                                                               
He himself was a bit confused, he said, about how to tie this in to                                                             
the "requirements that apply to all new actions that are filed, and                                                             
existing actions on the effective date of the Act, if those                                                                     
findings weren't made to begin with, and we agreed to the                                                                       
imposition without any of those findings being made."  Mr.                                                                      
Luckhaupt suggested they could attempt to say that the court can                                                                
continue it, if the court makes those findings.  He noted that Mr.                                                              
Guaneli was shaking his head.                                                                                                   
                                                                                                                                
Number 0991                                                                                                                     
                                                                                                                                
DEAN GUANELI, Chief Assistant Attorney General, Legal Services                                                                  
Section-Juneau, Criminal Division, Department of Law, suggested                                                                 
that Representative Croft had accurately characterized it the                                                                   
previous day:  It would terminate in two years unless the court                                                                 
continued the order after making certain findings.  Mr. Guaneli                                                                 
noted that it now says, "provided that the prospective relief does                                                              
not continue for a period of more than two years".                                                                              
                                                                                                                                
MR. GUANELI suggested adding, on page 4, line 11, after the phrase                                                              
"more than two years", the language, "unless the plaintiff proves,                                                              
and the court orders, that continuation of the relief is                                                                        
appropriate under the standards set out in subsection (c)."  He                                                                 
pointed out that subsection (c) is the standard that allows the                                                                 
court to continue relief after the state has moved to terminate it                                                              
after two years.  He said that gets towards Representative Croft's                                                              
concern, although he would defer to Mr. Luckhaupt as to whether it                                                              
is absolutely correct.                                                                                                          
                                                                                                                                
Number 1100                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT asked whether it would be (c) or (a) for the                                                               
standards.                                                                                                                      
                                                                                                                                
MR. GUANELI answered that subsection (c) sets out the standards for                                                             
continuation of a court order.  If it presumes a court order has                                                                
been in effect for two years, and the state has moved to terminate                                                              
it, that allows the court to continue it, under certain standards.                                                              
He noted that subsection (c) refers back to (a).  However, (c)                                                                  
requires that the plaintiff prove a current violation of a state or                                                             
federal right.                                                                                                                  
                                                                                                                                
Number 1148                                                                                                                     
                                                                                                                                
REPRESENTATIVE KERTTULA pointed out that it is a consent decree.                                                                
She asked whether it wouldn't be better to say, "unless the court                                                               
finds," rather than limiting it to, "unless the plaintiff proves,"                                                              
so that either party could bring it in.  She noted that the                                                                     
language in (c) says "unless the court finds."                                                                                  
                                                                                                                                
MR. GUANELI replied that he doesn't have a problem with that.  He                                                               
added, "I think, then, the burden of proof falls under the ordinary                                                             
rules of court; in general, in a civil action, a plaintiff has to                                                               
prove a case."                                                                                                                  
                                                                                                                                
Number 1201                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN asked whether it would say, "unless the court                                                              
finds and orders".                                                                                                              
                                                                                                                                
MR. GUANELI said he thinks that would work.                                                                                     
                                                                                                                                
Number 1219                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG referred to the definition on page 5, lines                                                             
14 and 15, which read, "(5) 'prospective relief' means all relief                                                               
other than compensatory monetary damages".  He asked if that is a                                                               
general legal definition, pointing out that, to him, "prospective"                                                              
means "future."  In addition, for the new amendment, they had                                                                   
discussed anticipating a problem.  He asked if the word                                                                         
"prospective" relates to the timing and would in any way negate the                                                             
ability to enter into an agreement.                                                                                             
                                                                                                                                
Number 1279                                                                                                                     
                                                                                                                                
MR. GUANELI agreed that "prospective" tends to refer to something                                                               
that applies in the future.  He said he believes that the intent                                                                
was to be as broad as possible, however, to include all relief that                                                             
a court could order, unless the court was going to order monetary                                                               
damages, which don't really apply in the future.  He suggested it                                                               
may also be based upon definitions in the federal law, trying to be                                                             
as broad as possible.  He noted that in a consent decree situation,                                                             
the court doesn't have to make a finding; in fact, the state                                                                    
sometimes would rather the court not make a finding when it has                                                                 
been in violation of the constitution.  He restated that                                                                        
prospective relief allows them to agree to relief that would accrue                                                             
in the future, which is, he believes, what they want it to do.                                                                  
                                                                                                                                
Number 1406                                                                                                                     
                                                                                                                                
MR. LUCKHAUPT added that the definition of "prospective relief"                                                                 
here refers to all relief, and then "relief" is defined below that                                                              
to include any legal or equitable remedies.                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG reiterated his concern that it is different                                                             
from the normal definition.                                                                                                     
                                                                                                                                
MR. LUCKHAUPT replied that he himself wouldn't say that.  He agrees                                                             
with Mr. Guaneli that this language comes from the federal Prison                                                               
Litigation Reform Act (PLRA), he added.  In a civil action for                                                                  
damages, there is a judgment executed, which is the end of the                                                                  
case.  However, other types of relief work into the future,                                                                     
including injunctions and other equitable relief, as well as some                                                               
specialized legal forms of relief.  If a current violation is                                                                   
found, the court could say that certain types of exercise must be                                                               
provided, for example, as the U.S. Supreme Court requires at least                                                              
15 minutes a day of exercise for all prisoners; the court enjoins                                                               
the state from not providing that.  It is an example of prospective                                                             
relief that operates in the future, as opposed to a prisoner's                                                                  
suing for exercise that wasn't provided for the last year, with a                                                               
resulting monetary award.                                                                                                       
                                                                                                                                
MR. LUCKHAUPT pointed out that to impose prospective relief, a                                                                  
current violation must be found of a constitutional or statutory                                                                
right.  However, Mr. Guaneli's amendment the previous day would                                                                 
allow a court to impose the prospective relief without that                                                                     
finding, in response to an agreement with the state, and then the                                                               
limitation would come in that they are currently discussing.                                                                    
                                                                                                                                
Number 1561                                                                                                                     
                                                                                                                                
REPRESENTATIVE MULDER requested further discussion of the language                                                              
on page 3, subsection (d), which began, "(d) A defendant may not                                                                
file a motion to modify or terminate under (c) of this section                                                                  
until".  He said disagreement may exist in relation to the fact                                                                 
that they are now limited in the ability to not only terminate but                                                              
also to modify a court order.  He asked that both Mr. Luckhaupt and                                                             
Mr. Guaneli address the issue.                                                                                                  
                                                                                                                                
Number 1611                                                                                                                     
                                                                                                                                
MR. LUCKHAUPT explained that the concern arose regarding whether                                                                
the state should be able to come in six months or a year after                                                                  
relief had been ordered.  He cited Cleary as an example where the                                                               
judge started imposing fines, then sent prisoners off to Arizona                                                                
and found alternative ways to house the prisoners in order to                                                                   
exceed the population caps.  Mr. Luckhaupt suggested that the                                                                   
legislature might believe it wise that the state could come in and                                                              
say, "Hey, we corrected this problem. ... We've had an intervening                                                              
legislative session.  The ... finance committees and the                                                                        
legislature have provided funds to alleviate this constitutional                                                                
concern.  We don't want the court overseeing what we're doing                                                                   
anymore with this, or at least some portion of the remedy."                                                                     
                                                                                                                                
MR. LUCKHAUPT pointed out that some remedies may be on the small                                                                
side, such as saying the state won't open prisoners' mail, for                                                                  
instance.  For those, the remedy would be easy, and the state would                                                             
want to request that the court not impose those burdens anymore.                                                                
Mr. Luckhaupt told members:                                                                                                     
                                                                                                                                
     That can't be done now.  That was able to be done on the bill                                                              
     before this amendment was added yesterday.  And, again, this                                                               
     is a provision that's not in the federal PLRA. ... We've                                                                   
     discussed it at some length, and it's, I think, something Mr.                                                              
     Guaneli believes is necessary, again, to provide the                                                                       
     administration with as much leeway and opportunity to                                                                      
     negotiate with potential plaintiffs as they can. ...                                                                       
                                                                                                                                
     But it also, potentially, rests a greater burden on the                                                                    
     legislature when we enact this, where the legislature is                                                                   
     impliedly saying that "you can do this, and ... we'll abide by                                                             
     what you decide."  And the legislature is impliedly saying                                                                 
     that we're going to go ahead and fund whatever you agree to.                                                               
     And that maybe is a little downside to doing that.                                                                         
                                                                                                                                
     I brought the issue up with Representative Mulder, and I think                                                             
     he just basically wants the Department of Law to ... put on                                                                
     the record what their feelings are on this, and what the                                                                   
     justification is.                                                                                                          
                                                                                                                                
REPRESENTATIVE MULDER nodded in assent.                                                                                         
                                                                                                                                
Number 1757                                                                                                                     
                                                                                                                                
MR. GUANELI advised members that the bill now says, basically, that                                                             
if a court finds a violation of the constitution and issues an                                                                  
order, or if the state enters into a consent decree, that will last                                                             
a period of two years.  After that, the plaintiff has to come back                                                              
and prove that the state is still in violation of the constitution,                                                             
if the plaintiff wants that court order to continue.                                                                            
                                                                                                                                
MR. GUANELI said he believes that some federal provisions also have                                                             
a two-year period.   But in Alaska it makes sense, he stated,                                                                   
because that is a couple of budget cycles, or one legislature.                                                                  
After two years, one can almost presume there will be some changed                                                              
conditions in the state's budgetary situation and, certainly, in                                                                
the executive branch departments.                                                                                               
                                                                                                                                
MR. GUANELI suggested that it flies in the face of what they are                                                                
trying to structure here, however, to say that the state could come                                                             
in and get 90 percent or 95 percent of the court order set aside in                                                             
six months.  He believes that is tied not only to preserving                                                                    
executive and legislative flexibility, but also to giving                                                                       
plaintiffs and judges some certainty about the time period during                                                               
which the order will remain in effect.  He stated his belief that                                                               
this bill was tailored to really reflect the realities in Alaska.                                                               
                                                                                                                                
MR. GUANELI emphasized the importance of how the  Alaska Supreme                                                                
Court will interpret this.  He said the federal courts have pretty                                                              
uniformly upheld all the major aspects of the federal PLRA.                                                                     
However, the Alaska courts chart their own course, and they are                                                                 
trying to fashion legislation that will be upheld by the Alaska                                                                 
Supreme Court.  He added, "The worst thing that I think could                                                                   
happen is if ... we pass something that really is too limited, and                                                              
we're all counting on, ... a year from now, or a year and a half                                                                
from now, getting out from under the Cleary case, and we're                                                                     
thwarted by the courts because they say that this was too                                                                       
restrictive."                                                                                                                   
                                                                                                                                
MR. GUANELI advised members that he believes this two-year                                                                      
limitation is an appropriate period of time - whether it applies to                                                             
a part of an order or the entire order - for a court order to be in                                                             
effect after the state is found to have violated the constitution,                                                              
or if the state has agreed to a consent decree.  He also believes                                                               
that it should apply to all parts of the order.  He concluded,                                                                  
"That's the basis for it:  We want something that's going to be                                                                 
upheld by the courts, and I think we would be very nervous about                                                                
moving to modify any significant part of an order before that                                                                   
two-year period, without running some risk that the court's going                                                               
to shoot us down."                                                                                                              
                                                                                                                                
Number 1908                                                                                                                     
                                                                                                                                
REPRESENTATIVE MULDER asked Mr. Guaneli whether the department                                                                  
could move for a modification under Rule 60(b) of the Alaska Rules                                                              
of Civil Procedure.                                                                                                             
                                                                                                                                
MR. GUANELI replied that Civil Rule 60(b) can be used at any time                                                               
by the state to try to get out from any court order.  However, part                                                             
of the reason why this legislation is needed is that it hasn't been                                                             
a very effective remedy in Alaska or the rest of the country.                                                                   
                                                                                                                                
Number 1941                                                                                                                     
                                                                                                                                
REPRESENTATIVE KERTTULA asked, "What are your rights to modify                                                                  
under the Cleary order right now?"                                                                                              
                                                                                                                                
MR. GUANELI responded that a provision in the Cleary settlement                                                                 
itself says that if there are significant changed conditions,                                                                   
either party can come back to court and ask that it be modified.                                                                
Essentially, it is the same standard that exists under Civil Rule                                                               
60(b).  He noted that Rule 60(b) has a number of provisions for                                                                 
fraud or mistake, for instance, but there is also a catch-all to                                                                
ask to be let out for any other reason.  Mr. Guaneli concluded,                                                                 
"That's what we'd be going under, sort of this catch-all provision                                                              
in 60(b).  It's not very effective, it's restrictively interpreted                                                              
by the courts, and it just doesn't work very well."                                                                             
                                                                                                                                
Number 1983                                                                                                                     
                                                                                                                                
REPRESENTATIVE KERTTULA inquired, "Have you brought motions to                                                                  
modify under Cleary, and have they been successful?"                                                                            
                                                                                                                                
MR. GUANELI replied that the state has brought motions to modify                                                                
Cleary in specific instances, usually relating to the population                                                                
caps.  Provisions in Cleary specify a certain inmate-to-staff                                                                   
ratio, certain programs and things like that, and certain square                                                                
footage standards.  In some institutions, the square footage has                                                                
been increased, with added cells or added dorms, or there has been                                                              
a staff increase.  When that happens, they go back to the court to                                                              
ask that the cap be raised a little.  "Those are the kinds of                                                                   
things that we have asked the court to modify the judgment, and so                                                              
far, we've been successful in those," Mr. Guaneli concluded.                                                                    
                                                                                                                                
Number 2030                                                                                                                     
                                                                                                                                
REPRESENTATIVE KERTTULA asked if Mr. Guaneli or someone from the                                                                
Department of Corrections (DOC) had the answer to her previous                                                                  
day's question about population limits.                                                                                         
                                                                                                                                
MR. GUANELI said he doesn't have the numbers at hand, but that Mr.                                                              
Cooper from the DOC, who was present, was well-versed about that                                                                
and what the impacts would be on moving any large number of                                                                     
prisoners from Arizona.                                                                                                         
                                                                                                                                
Number 2059                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG remarked that he isn't sure he understands                                                              
subsection (f) on page 4 in light of this new amendment.  He asked                                                              
whether it is consistent.                                                                                                       
                                                                                                                                
MR. GUANELI clarified that a motion to modify or terminate would                                                                
require the plaintiffs to come in and prove that unconstitutional                                                               
conditions still are occurring.  Subsection (f) says the court                                                                  
shall promptly rule on the motion, and is, he believes, an attempt                                                              
to restrict the court's ability to prolong its ruling.                                                                          
                                                                                                                                
Number 2130                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG referred to page 4, lines 6 and 7.  He                                                                  
stated his understanding that subparagraph (3) basically is a                                                                   
one-year standstill relating to Cleary before going to court.                                                                   
                                                                                                                                
MR. GUANELI explained, "Certainly, the department wants to be in                                                                
the best position it can be in, when it moves to terminate.  Even                                                               
though we believe the plaintiffs bear a fairly heavy burden of                                                                  
proving there are ... unconstitutional conditions, and we don't                                                                 
believe that there are, ... the department wants a period of time,                                                              
so it can be sure that it's in the best position to move for that                                                               
relief."                                                                                                                        
                                                                                                                                
MR. GUANELI pointed out that this is new legislation, changing the                                                              
landscape of the Cleary case.  To be fair to the plaintiffs, they                                                               
need to provide notice, basically, that one year from the effective                                                             
date of this Act, they will be called upon to prove that there are                                                              
still unconstitutional conditions.  He noted that in at least one                                                               
federal circuit, when the prisoner plaintiffs were put in that                                                                  
position, the court threw out the limitations on injunctions,                                                                   
saying that the plaintiffs needed adequate time to prepare before                                                               
being forced to go into court.  Therefore, the department believes                                                              
a one-year "notice" is appropriate, as they want the ultimate                                                                   
arbiter - the supreme court - to uphold whatever decision is made.                                                              
                                                                                                                                
Number 2219                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG proposed the possibility of a more rapid                                                                
effective date of July 1, for example, noting the many years that                                                               
Cleary has been in effect.                                                                                                      
                                                                                                                                
Number 2259                                                                                                                     
                                                                                                                                
MR. LUCKHAUPT advised members:                                                                                                  
                                                                                                                                
     The plaintiff isn't going to have to come in after one year                                                                
     under Cleary, necessarily.  It just depends upon if the                                                                    
     administration decides to file a motion to terminate or modify                                                             
     at the end of that one-year period.  So, ... these one-year                                                                
     and two-year periods you're hearing about aren't automatic.                                                                
     The plaintiffs have to come in and have to renew, unless the                                                               
     state decides to actually come into court. ... The                                                                         
     administration's got to trust the legislature, to a certain                                                                
     extent, and the legislature has to trust the executive branch                                                              
     that they will put the plaintiffs to the test here.                                                                        
                                                                                                                                
     Mr. Guaneli's correct that we tried to tailor this legislation                                                             
     to make sure we meet the requirements of our supreme court and                                                             
     the problems that we sometimes run into in the supreme court.                                                              
     ... And we've actually switched positions around a little as                                                               
     this has progressed.  I was a little ... less accommodating of                                                             
     some of the restrictions that were going in the bill earlier,                                                              
     and now, once they've been in, I'm also trying to protect the                                                              
     legislature's interests a little, in regards to maybe the                                                                  
     legislature is putting a little too much faith in the                                                                      
     executive branch to actually bring some of these actions.                                                                  
                                                                                                                                
MR. LUCKHAUPT said this potentially places the legislature in a                                                                 
little different position.  It is similar to legislative approval                                                               
of large leases or purchases by the executive branch, which was put                                                             
in after the previous administration's purchase of the "Spam Can"                                                               
[Court Plaza Building in Juneau], for example, regarding items that                                                             
will impact the state financially several years into the future.                                                                
Mr. Luckhaupt noted that these consent decrees have that same                                                                   
potential, especially if the administration doesn't come into court                                                             
after the end of that one-year or two-year period, and make that                                                                
move to terminate.  "Potentially, these consent decrees can last as                                                             
long as Cleary has, if that motion is never made," he added.  "And                                                              
I just want to make sure the committee understood that that wasn't                                                              
automatic."                                                                                                                     
                                                                                                                                
Number 2377                                                                                                                     
                                                                                                                                
REPRESENTATIVE MULDER said he generally agrees with Mr. Luckhaupt,                                                              
then added, "The reason I've gone along with the allowance here is                                                              
it's my understanding, when visiting with Dean [Guaneli], that                                                                  
we've never really made [a] motion to have it dropped totally,                                                                  
because first there were some concerns about whether we were in                                                                 
compliance and, second, to make a motion under Rule 60(b), he felt                                                              
that we didn't stand a very good chance of winning.  So, it was his                                                             
conclusion that ... with this additional statutory ability that                                                                 
we're granting them, they have far better opportunity to actually                                                               
win in court, and they would be far more aggressive at actually                                                                 
terminating these consent decrees or court orders in the future."                                                               
He asked Mr. Guaneli whether that is a fair assessment.                                                                         
                                                                                                                                
MR. GUANELI affirmed that, adding that he certainly appreciates the                                                             
tension and matters of trust among the branches of government.  He                                                              
stated, "With this kind of legislation, I think that the                                                                        
legislature is in a much better position to legitimately criticize                                                              
an administration that doesn't take full advantage of this kind ...                                                             
of legislation.  I started out, in my presentation yesterday,                                                                   
saying the Department of Corrections needs the utmost flexibility                                                               
in dealing with ... its responsibilities.  And, as Representative                                                               
Mulder indicated, ... having to deal with a court monitor who lives                                                             
in California - and is, in essence, interfering with the operation                                                              
of state facilities and, in particular, the facility in Arizona -                                                               
is a problem for the department. ... I think that the intent is to                                                              
take advantage of the tools that the legislature gives us."                                                                     
                                                                                                                                
Number 2447                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG suggested this bill needs a "hot foot"                                                                  
clause, to ensure that the administration files a timely action                                                                 
when it has the right to do so.                                                                                                 
                                                                                                                                
TAPE 99-47, SIDE B                                                                                                              
Number 0001                                                                                                                     
                                                                                                                                
MR. LUCKHAUPT clarified that he wasn't advocating a particular                                                                  
position.  [Comments not on tape because of tape change.]                                                                       
                                                                                                                                
REPRESENTATIVE ROKEBERG said as he understands it, however, these                                                               
times have been extended, and Mr. Guaneli has counseled the                                                                     
committee about the need for one-year and two-year periods of                                                                   
standstill.  There is no guarantee here that the administration                                                                 
will file the appropriate motions and actions at that time, he                                                                  
pointed out.                                                                                                                    
                                                                                                                                
Number 0034                                                                                                                     
                                                                                                                                
REPRESENTATIVE MULDER responded that he is straddling the fence to                                                              
ensure that the appropriate attention is given to reality, in terms                                                             
of trying to adequately fund and manage the prisons, without having                                                             
a consent decree dictate what is or isn't appropriate.  He is                                                                   
trying to balance that against the desire to be successful when                                                                 
this is appealed to the court.  To Representative Rokeberg he said,                                                             
"So, I guess I would argue against that right now, only from the                                                                
standpoint that if that does become a problem, we can come back in                                                              
... and perhaps do the 'hot foot' mechanism that you referred to."                                                              
                                                                                                                                
Number 0083                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG said he appreciates that, but Mr.                                                                       
Luckhaupt's testimony is that there is an implication of funding.                                                               
He suggested that it would be ceding their ability as a legislature                                                             
to appropriate, by giving it over to the monitor in California.                                                                 
Representative Rokeberg declared that without some reporting                                                                    
mechanisms or a tacit agreement, if nothing else, between the                                                                   
legislature and the administration about how to handle this, he was                                                             
really uncomfortable about it.  "Every month is very expensive," he                                                             
added.  "It's a $10-million-a-month nut, plus."                                                                                 
                                                                                                                                
Number 0123                                                                                                                     
                                                                                                                                
REPRESENTATIVE MULDER agreed that is the current situation, adding,                                                             
"We're paying for the consent decree.  This would allow us to                                                                   
basically try and put a time frame or time limit on payment of that                                                             
consent decree, to try to rectify it and move on. ... Is it a                                                                   
perfect solution?  No.  Is it an improved solution?  Probably.                                                                  
Hopefully."                                                                                                                     
                                                                                                                                
Number 0146                                                                                                                     
                                                                                                                                
REPRESENTATIVE KERTTULA noted that in working on procedural aspects                                                             
of peoples' rights to go back to the court, they are up against                                                                 
both due process rights of the parties and separation of powers                                                                 
issues.  She said she has a lot of concern whether this bill will                                                               
make it as it is.  She offered the opinion that this is modifying                                                               
it back, to show that both parties are basically giving up                                                                      
something.  She added, "It's definitely not a perfect solution, but                                                             
without this, you're going to run a greater risk of the court                                                                   
saying, 'You're redoing the whole deal.  You had the right to come                                                              
in and modify.  You're changing parties' rights, and it's                                                                       
one-sided.'"                                                                                                                    
                                                                                                                                
REPRESENTATIVE KERTTULA asked Mr. Cooper her question of the                                                                    
previous day about how the state is doing on overcrowding and what                                                              
the numbers are.                                                                                                                
                                                                                                                                
Number 0201                                                                                                                     
                                                                                                                                
ALLEN J. COOPER, Director, Division of Institutions, Department of                                                              
Corrections, answered that in 1980, there were about 770 prisoners                                                              
in the system.  In the early 1980s, there was the "more tough on                                                                
crime era," and today there are 4,335 prisoners, a sixfold or 1,031                                                             
percent increase.  He stated that population drives cost, noting                                                                
that corrections is looked upon to be the primary employer in the                                                               
nation by the year 2,000.  Although the population leveled off                                                                  
somewhat last year, he projects that there will be 4,500 prisoners                                                              
by November 1999, an increase of 200 to 300 inmates.                                                                            
                                                                                                                                
MR. COOPER said he believes the legislature recognized the                                                                      
population problem by passing HB 53 the previous year.  He stated,                                                              
"To think we could bring back 800 prisoners from Arizona as a                                                                   
result of this would not be possible.  We were looking at ways now                                                              
to - as Mr. Guaneli indicated - to modify some of our caps and                                                                  
things that we feel, with the resources we have now, ... do it                                                                  
safely, on a continuous basis.  We're looking at probably 80-plus                                                               
beds now.  We're trying to go in and work on several ...                                                                        
institutions.  But that's kind of where our counts are headed."  He                                                             
said he is thankful that it leveled off this past year, which gave                                                              
the DOC the ability to start managing with the resources provided                                                               
by the legislature, "to put us in the posture we are today."                                                                    
                                                                                                                                
MR. COOPER referred to Representative Rokeberg's suggested "hot                                                                 
foot" clause and said, "We have a responsibility, doing Cleary.                                                                 
I've worked for 24 years in the department.  I've been with Cleary                                                              
since 1982."  Mr. Cooper said that although there had been a lot of                                                             
concern about Cleary when it came along, it did several things for                                                              
them, as well, such as providing some continuity of operations and                                                              
a good classification system.  He emphasized that "population                                                                   
coupled with population" is what has caused today's situation.                                                                  
                                                                                                                                
Number 0333                                                                                                                     
                                                                                                                                
REPRESENTATIVE KERTTULA requested an example of how the population                                                              
caps under Cleary apply to one institution.  She also asked whether                                                             
prisoners automatically go elsewhere now, if the levels get high                                                                
enough.                                                                                                                         
                                                                                                                                
MR. COOPER affirmed that, adding that those in the system call it                                                               
"chasing caps."  He indicated 50 percent of the prisoner population                                                             
emanates from the Anchorage Bowl.  Cook Inlet Pre-Trial is the only                                                             
overcrowded institution right now, and it has been that way for the                                                             
past five years.  Today, it houses 448 prisoners.  Mr. Cooper said                                                              
he went through that facility last week, and the overcrowding is                                                                
causing it to fray at the edges.  They will be implementing other                                                               
options to start addressing that next month, he said, including                                                                 
electronic monitoring coupled with another option.                                                                              
                                                                                                                                
MR. COOPER explained that people are transferred from the Cook                                                                  
Inlet Pre-Trial Facility to "Palmer medium" or to Wildwood                                                                      
Correctional Center.  Anytime prisoners are moved around                                                                        
continually, he has strong concerns about public safety, and it is                                                              
an everyday occurrence.  Furthermore, it is not cheap, it is hard                                                               
of staff, and it is difficult to manage that way.  Five years ago,                                                              
the average prisoner's sentence at "Palmer medium" was about ten                                                                
years, he told members.  In contrast, on the Palmer compound today,                                                             
with 420 beds, the average stay for a prisoner is 37 days.  These                                                               
are unsentenced misdemeanants and unsentenced felons.  All but two                                                              
of the institutions - Spring Creek and Building 10 at Wildwood -                                                                
contain unsentenced prisoners.  Mr. Cooper pointed out that the DOC                                                             
has ten jails and two correctional centers at this time, which he                                                               
doesn't believe is healthy.                                                                                                     
                                                                                                                                
MR. COOPER restated that HB 53 from the previous year will                                                                      
certainly help, as will the resources provided to do the job.  He                                                               
noted that he works closely with Department of Law attorneys.  Mr.                                                              
Cooper pointed out that the court monitor finds the state to be out                                                             
of compliance with only the following:  the need for an industry                                                                
for females at Hiland, tracking of appeals at Spring Creek and                                                                  
overcrowding.  He emphasized how far the state has come from 1982                                                               
in this regard.                                                                                                                 
                                                                                                                                
Number 0506                                                                                                                     
                                                                                                                                
REPRESENTATIVE KERTTULA asked Mr. Cooper if he will continue what                                                               
he is doing regarding overcrowding, regardless of whether this                                                                  
legislation passes.                                                                                                             
                                                                                                                                
MR. COOPER affirmed that.                                                                                                       
                                                                                                                                
Number 0521                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT asked whether anyone else wished to testify.  He                                                                  
noted that there was one amendment yet to be adopted, as discussed                                                              
earlier, but no quorum.  He specified that that language would be                                                               
inserted on page 4, line 11, after the words "two years," to read,                                                              
"unless the court finds and orders that continuation of the relief                                                              
is appropriate under the standards set out in subsection (c)."                                                                  
There now being a quorum, he asked whether there was any objection.                                                             
There being none, the amendment was adopted.                                                                                    
                                                                                                                                
Number 0565                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN made a motion to move from committee CSHB 214,                                                             
version 1-LS0562\I, Luckhaupt, 4/30/99 [as amended], with                                                                       
individual recommendations and the accompanying indeterminate                                                                   
fiscal note.  There being no objection, CSHB 214(JUD) moved from                                                                
the House Judiciary Standing Committee.                                                                                         
                                                                                                                                
HB 154 - ILLEGAL USE OF LASER POINTERS                                                                                          
                                                                                                                                
Number 0604                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT announced that the committee would again take up                                                                  
House Bill No. 154, "An Act relating to the use of laser sighting                                                               
devices."  He noted that there had been opening remarks and                                                                     
discussion with the sponsor's representative.  He then showed                                                                   
members the laser pointer on his own key chain.                                                                                 
                                                                                                                                
Number 0623                                                                                                                     
                                                                                                                                
DEAN GUANELI, Chief Assistant Attorney General, Legal Services                                                                  
Section-Juneau, Criminal Division, Department of Law, told members                                                              
that his department's concerns over the bill were already                                                                       
expressed.  First is that the bill takes an offense that could be                                                               
a misdemeanor assault, punishable by up to a year in jail, and                                                                  
lowers it to disorderly conduct, punishable by 90 days in jail, at                                                              
most.  When a police officer is the victim and is afraid of being                                                               
shot, the current law regarding assault is the appropriate level,                                                               
he stated, noting that at least one case has been successfully                                                                  
prosecuted at that level.  Misdemeanor assault on a police officer                                                              
carries a minimum of 30 days in jail, which the department believes                                                             
to be appropriate.  Mr. Guaneli suggested there are a variety of                                                                
ways to draft around that, although he needs time to work with the                                                              
sponsor and drafters to try to accomplish that.                                                                                 
                                                                                                                                
MR. GUANELI voiced another concern, referring to an amendment                                                                   
mentioned by Representative Croft.  Proposed by the Department of                                                               
Public Safety, that amendment says that this section wouldn't apply                                                             
to a peace officer; in other words, a peace officer with a laser                                                                
sight on a gun or some equipment wouldn't be charged under this                                                                 
statute, even though someone found that harassing or annoying.  Mr.                                                             
Guaneli said he isn't absolutely certain that this amendment is                                                                 
required, because he believes that some general provisions in                                                                   
Alaska law say that peace officers acting within the course and                                                                 
scope of their duties can do things that otherwise might be crimes.                                                             
He cited handling drugs as evidence as an example.  However, he                                                                 
added, if it would make peace officers feel better, the department                                                              
has no objection to that provision.                                                                                             
                                                                                                                                
MR. GUANELI restated that lowering the level of offense to a Class                                                              
B misdemeanor when it rises to the level of an assault is                                                                       
problematic.  He requested time to see whether there is a way                                                                   
around that.                                                                                                                    
                                                                                                                                
Number 0739                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN commented that he'd had concerns with that as                                                              
well.                                                                                                                           
                                                                                                                                
MR. GUANELI clarified that if it were enacted as it is, he doesn't                                                              
believe that an assault could be charged.  This is a much more                                                                  
specific offense, with specific elements.  Therefore, it has been                                                               
removed from the assault offense, in effect, and placed one level                                                               
lower.                                                                                                                          
                                                                                                                                
Number 0794                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT announced that they would hold the bill over and have                                                             
the sponsor work with the Department of Law.  "I think all of us                                                                
have basically the same concern," he added, indicating the desire                                                               
to eliminate any unintended consequences.                                                                                       
                                                                                                                                
Number 0819                                                                                                                     
                                                                                                                                
GERALD LUCKHAUPT, Attorney, Legislative Legal and Research                                                                      
Services, Legislative Affairs Agency, came forward, disagreeing                                                                 
with Mr. Guaneli's conclusion that this would prevent the charge of                                                             
assault.  He said one element of assault is causing physical injury                                                             
or placing the person in imminent fear.  He sees nothing in Alaska                                                              
case law or under the United States Constitution that would prevent                                                             
the department from charging assault after this crime.  Mr.                                                                     
Luckhaupt stated:                                                                                                               
                                                                                                                                
     If that is a concern, we can draft around that very easily.                                                                
     We can say, under this, "in circumstances not proscribed under                                                             
     assault in the fourth degree," for example, "or not proscribed                                                             
     under AS 11.41," and ... those circumstances will all be                                                                   
     removed.                                                                                                                   
                                                                                                                                
     I see this as merely something that adds on to those                                                                       
     alternatives that can be charged now, and I think the sponsor                                                              
     understands it, through our discussion with his staff, that,                                                               
     to the extent that a laser pointer ... gets in the eye of the                                                              
     officer or something like that, and to the extent you cause                                                                
     any physical pain, that's an assault.  It's clearly a crime                                                                
     under current law.  To the extent the officer is placed in                                                                 
     fear of imminent physical injury, that's fourth degree                                                                     
     assault, and that's a crime.                                                                                               
                                                                                                                                
     As to Representative Croft's proposed amendment about having                                                               
     to ... set out that this does not apply to peace officers, we                                                              
     don't do that in terms of pointing the gun that the laser                                                                  
     sight is on, which, ... [if] a peace officer were to point                                                                 
     that at a suspect or something like that, that is not a crime                                                              
     under Alaska law, because of the defense we provide. ... But                                                               
     we don't, anywhere in the assault statutes, say that this does                                                             
     not apply to officers, when you place someone in fear of                                                                   
     imminent physical injury, by means of a dangerous instrument.                                                              
     To do it here would imply that the legislature is not                                                                      
     providing that defense elsewhere.  And so, I would advise very                                                             
     strongly against doing that.                                                                                               
                                                                                                                                
     And, basically, the main reason is it isn't necessary, because                                                             
     we provide an "out" later on in our statutes, that anyone                                                                  
     performing a public duty (indisc.) from the crime, the                                                                     
     criminal liability.  But the reason the sponsor has it drafted                                                             
     this way is due to some interplay between us and the                                                                       
     Department of Law earlier in session.                                                                                      
                                                                                                                                
Number 0946                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN asked whether the term "threatening" isn't                                                                 
used for assault.                                                                                                               
                                                                                                                                
MR. LUCKHAUPT replied:                                                                                                          
                                                                                                                                
     Not exactly.  We use the term, "if you are placed in fear of                                                               
     imminent physical injury."  It's a fourth degree assault.  Or                                                              
     "by means of a dangerous instrument you're placed in fear of                                                               
     physical injury," that becomes a higher level of assault, that                                                             
     becomes a felony form of assault.  We don't use ... the word                                                               
     "threat" per se in the assault statutes.  We use it in                                                                     
     stalking.  We use it in some of the offenses in AS 11.61                                                                   
     around disorderly conduct, in regards to annoying and                                                                      
     harassing phone calls that can be considered threatening. ...                                                              
     While people think of it as being something akin to an assault                                                             
     - and it is, under a common law idea, what assault and battery                                                             
     is:  the assault is the threat, the battery is the actual                                                                  
     touching - that's the common understanding, but it's not how                                                               
     we define it, in terms of our assault statutes themselves.                                                                 
                                                                                                                                
MR. LUCKHAUPT indicated this follows how other jurisdictions have                                                               
enacted such laws, as a disorderly conduct type of offense.  He                                                                 
noted that to the extent that any physical injury was caused or                                                                 
threatened, that would be assault, already codified under current                                                               
law.                                                                                                                            
                                                                                                                                
Number 1091                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN asked for confirmation that "the threatening                                                               
effect the act may have on another person" is not assault.                                                                      
                                                                                                                                
MR. LUCKHAUPT said that is not assault.  If the victim is placed in                                                             
fear of physical injury, however, that is an assault.  He cited                                                                 
some examples using guns.  If Person A points a toy gun at Person                                                               
B, who knows it to be a toy, there is no fear and therefore no                                                                  
assault.  Similarly, if a real gun is pointed but Person B believes                                                             
it to be a toy, there is no fear and potentially no assault;                                                                    
however, there is reckless endangerment because the gun is real.                                                                
In the case of the laser pointer, the statute wouldn't depend on                                                                
the fear.  Just as pointing a gun at someone is, of itself, a                                                                   
crime, this says that it is a crime to point a laser sighted device                                                             
with reckless disregard for the fear that the person might feel.                                                                
                                                                                                                                
REPRESENTATIVE GREEN responded that, as written, it seems that                                                                  
"threatening" could be interpreted either way.                                                                                  
                                                                                                                                
MR. LUCKHAUPT restated his earlier points.  He added that some                                                                  
people will be annoyed by this, just as some people will be                                                                     
insulted by someone dropping their pants or "mooning," which is                                                                 
right above that, in subsection (7).                                                                                            
                                                                                                                                
Number 1266                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN pointed out that another attorney had said                                                                 
there is a problem, however.                                                                                                    
                                                                                                                                
MR. LUCKHAUPT noted that he had begun by saying although he didn't                                                              
agree with Mr. Guaneli, it can be solved by adding a reference that                                                             
says, "in a manner not proscribed under AS 11.41."  He reiterated                                                               
that he doesn't see where this prevents assault from being charged,                                                             
and that in other states, it hasn't prevented assaults from being                                                               
charged under these same circumstances.  He also reiterated that he                                                             
knows of no case law that would prevent that.                                                                                   
                                                                                                                                
Number 1304                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG commented that he personally would consider                                                             
it an assault if a laser beam were pointed at him from an unknown                                                               
source.  It would frighten him, he said, and he would think it was                                                              
a weapon.  He suggested that is a much higher level of offense than                                                             
being "mooned."                                                                                                                 
                                                                                                                                
Number 1380                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT remarked that it has been described to him that these                                                             
devices can shine up to 2,500 feet.  The new green laser lights can                                                             
supposedly shine up to three miles.                                                                                             
                                                                                                                                
CHAIRMAN KOTT announced that HB 154 would be held over in order to                                                              
try to satisfy the committee with language that resolves the                                                                    
problems described.                                                                                                             
                                                                                                                                
ADJOURNMENT                                                                                                                     
                                                                                                                                
Number 1392                                                                                                                     
                                                                                                                                
There being no further business before the committee, the House                                                                 
Judiciary Standing Committee was adjourned at 2:37 p.m.                                                                         

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