Legislature(1999 - 2000)

05/11/1999 01:17 PM House JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
         HOUSE JUDICIARY STANDING COMMITTEE                                                                                     
                    May 11, 1999                                                                                                
                     1:17 p.m.                                                                                                  
                                                                                                                                
                                                                                                                                
MEMBERS PRESENT                                                                                                                 
                                                                                                                                
Representative Pete Kott, Chairman                                                                                              
Representative Joe Green                                                                                                        
Representative Norman Rokeberg                                                                                                  
Representative Jeannette James                                                                                                  
Representative Lisa Murkowski                                                                                                   
Representative Eric Croft                                                                                                       
Representative Beth Kerttula                                                                                                    
                                                                                                                                
MEMBERS ABSENT                                                                                                                  
                                                                                                                                
All members present                                                                                                             
                                                                                                                                
COMMITTEE CALENDAR                                                                                                              
                                                                                                                                
CS FOR SENATE BILL NO. 45(FIN) am                                                                                               
"An Act providing that a person who grants certain conservation                                                                 
easements to the state or a municipality that provide public access                                                             
for recreational purposes and the grantee of the easement are                                                                   
immune from tort liability, other than gross negligence or reckless                                                             
or intentional misconduct, for damages to a person who uses the                                                                 
easement under certain conditions; relating to the vacation by the                                                              
state or a municipality of rights-of-way acquired by the state                                                                  
under former 43 U.S.C. 932; and providing for an effective date."                                                               
                                                                                                                                
     - MOVED CSSB 45(FIN) am OUT OF COMMITTEE                                                                                   
                                                                                                                                
HOUSE JOINT RESOLUTION NO. 23                                                                                                   
Proposing amendments to the Constitution of the State of Alaska                                                                 
relating to the community development fund, the permanent fund, and                                                             
the budget reserve fund.                                                                                                        
                                                                                                                                
     - MOVED CSHJR 23(CRA) OUT OF COMMITTEE                                                                                     
                                                                                                                                
HOUSE BILL NO. 213                                                                                                              
"An Act relating to the medical use of marijuana; and providing for                                                             
an effective date."                                                                                                             
                                                                                                                                
     - HEARD AND HELD                                                                                                           
                                                                                                                                
(* First public hearing)                                                                                                        
                                                                                                                                
PREVIOUS ACTION                                                                                                                 
                                                                                                                                
BILL: SB 45                                                                                                                     
SHORT TITLE: LAND OWNER IMMUNITY/ RT-OF-WAY VACATION                                                                            
SPONSOR(S): SENATOR(S) HALFORD, Pearce, Taylor; REPRESENTATIVE(S)                                                               
Dyson                                                                                                                           
                                                                                                                                
Jrn-Date    Jrn-Page           Action                                                                                           
 1/25/99        80     (S)  READ THE FIRST TIME - REFERRAL(S)                                                                   
 1/25/99        80     (S)  JUD, FIN                                                                                            
 4/14/99               (S)  JUD AT  1:30 PM BELTZ 211                                                                           
 4/14/99               (S)  MOVED CS (JUD) OUT OF COMMITTEE                                                                     
 4/19/99               (S)  JUD AT  1:30 PM BELTZ 211                                                                           
 4/19/99               (S)  MINUTE(JUD)                                                                                         
 4/21/99       982     (S)  JUD RPT  CS  2DP 1NR      NEW TITLE                                                                 
 4/21/99       982     (S)  DP: TAYLOR, HALFORD; NR: DONLEY                                                                     
 4/21/99       982     (S)  ZERO FISCAL NOTES (DOT, DNR)                                                                        
 4/28/99               (S)  FIN AT  9:00 AM SENATE FINANCE 532                                                                  
 4/28/99               (S)  REPORTED CS (FIN) OUT OF COMMITTEE                                                                  
 4/28/99      1148     (S)  FIN RPT  FORTHCOMING CS  2DP 5NR 1AM                                                                
 4/29/99               (S)  RLS AT 11:50 AM FAHRENKAMP 203                                                                      
 4/29/99               (S)  MINUTE(RLS)                                                                                         
 4/29/99      1168     (S)  FIN CS RECEIVED           NEW TITLE                                                                 
 4/28/99      1148     (S)  DP: TORGERSON, PETE KELLY; NR:                                                                      
                            PARNELL,                                                                                            
 4/28/99      1148     (S)  PHILLIPS,ADAMS, DONLEY, WILKEN;                                                                     
                            AM:GREEN                                                                                            
 4/28/99      1149     (S)  PREVIOUS ZERO FNS (DNR, DOT)                                                                        
 5/03/99      1203     (S)  RULES TO CALENDAR AND 1 OR 5/3/99                                                                   
 5/03/99      1206     (S)  READ THE SECOND TIME                                                                                
 5/03/99      1206     (S)  FIN  CS ADOPTED UNAN CONSENT                                                                        
 5/03/99      1206     (S)  AM NO 1 OFFERED BY HALFORD                                                                          
 5/03/99      1206     (S)  AM NO 1      ADOPTED UNAN CONSENT                                                                   
 5/03/99      1207     (S)  ADVANCED TO THIRD READING                                                                           
                            UNAN CONSENT                                                                                        
 5/03/99      1207     (S)  READ THE THIRD TIME  CSSB 45(FIN) AM                                                                
 5/03/99      1207     (S)  PASSED Y20 N-                                                                                       
 5/03/99      1208     (S)  EFFECTIVE DATE(S) SAME AS PASSAGE                                                                   
 5/03/99      1207     (S)  COSPONSOR(S): PEARCE, TAYLOR                                                                        
 5/03/99      1209     (S)  TRANSMITTED TO (H)                                                                                  
 5/04/99      1152     (H)  READ THE FIRST TIME - REFERRAL(S)                                                                   
 5/04/99      1152     (H)  JUDICIARY                                                                                           
 5/04/99      1170     (H)  CROSS SPONSOR(S): DYSON                                                                             
 5/11/99               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
                                                                                                                                
BILL: HJR 23                                                                                                                    
SHORT TITLE: COMMUNITY DEVELOP FUND/PFD/BUD RESERVE                                                                             
SPONSOR(S): REPRESENTATIVES(S) DAVIS                                                                                            
                                                                                                                                
Jrn-Date    Jrn-Page           Action                                                                                           
 3/05/99       366     (H)  READ THE FIRST TIME - REFERRAL(S)                                                                   
 3/05/99       366     (H)  CRA, JUDICIARY, FINANCE                                                                             
 4/08/99               (H)  CRA AT  8:00 AM CAPITOL 124                                                                         
 4/08/99               (H)  HEARD AND HELD                                                                                      
 4/08/99               (H)  MINUTE(CRA)                                                                                         
 5/04/99               (H)  CRA AT  8:00 AM CAPITOL 124                                                                         
 5/04/99               (H)  MOVED CSHJR 23(CRA) OUT OF COMMITTEE                                                                
 5/04/99      1153     (H)  CRA RPT  CS(CRA) 2DP 3NR                                                                            
 5/04/99      1153     (H)  DP: MORGAN, MURKOWSKI; NR: DYSON,                                                                   
 5/04/99      1153     (H)  HARRIS, HALCRO                                                                                      
 5/04/99      1153     (H)  FISCAL NOTE (GOV)                                                                                   
 5/04/99      1153     (H)  ZERO FISCAL NOTE (DCRA)                                                                             
 5/04/99      1153     (H)  REFERRED TO JUDICIARY                                                                               
 5/11/99               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
                                                                                                                                
BILL: HB 213                                                                                                                    
SHORT TITLE: MEDICAL USE OF MARIJUANA                                                                                           
SPONSOR(S): HEALTH, EDUCATION & SOCIAL SERVICES                                                                                 
                                                                                                                                
Jrn-Date    Jrn-Page           Action                                                                                           
 4/27/99      1026     (H)  READ THE FIRST TIME - REFERRAL(S)                                                                   
 4/27/99      1027     (H)  HES, JUD                                                                                            
 5/03/99               (H)  HES AT  5:00 PM CAPITOL 106                                                                         
 5/03/99               (H)  HEARD AND HELD                                                                                      
 5/04/99               (H)  HES AT  3:00 PM CAPITOL 106                                                                         
 5/04/99               (H)  MOVED CSHB 213(HES) OUT OF COMMITTEE                                                                
 5/05/99      1177     (H)  HES RPT  CS(HES) 3NR 2AM                                                                            
 5/05/99      1177     (H)  NR: DYSON, WHITAKER, BRICE;                                                                         
                            AM: COGHILL,                                                                                        
 5/05/99      1177     (H)  KEMPLEN                                                                                             
 5/05/99      1177     (H)  FISCAL NOTE (DHSS)                                                                                  
 5/05/99      1177     (H)  ZERO FISCAL NOTE (DCED)                                                                             
 5/05/99      1177     (H)  REFERRED TO JUDICIARY                                                                               
 5/11/99               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
                                                                                                                                
WITNESS REGISTER                                                                                                                
                                                                                                                                
BRETT HUBER, Legislative Assistant                                                                                              
   to Senator Rick Halford                                                                                                      
Alaska State Legislature                                                                                                        
Capitol Building, Room 121                                                                                                      
Juneau, Alaska  99801                                                                                                           
Telephone:  (907) 465-4958                                                                                                      
POSITION STATEMENT:  Presented CSSB 45(FIN) am on behalf of                                                                     
                     sponsor.                                                                                                   
                                                                                                                                
DICK BISHOP                                                                                                                     
Alaska Outdoor Council                                                                                                          
P.O. Box 73902                                                                                                                  
Fairbanks, Alaska  99707                                                                                                        
Telephone: (907) 455-4262                                                                                                       
POSITION STATEMENT:  Urged passage of CSSB 45(FIN) am, although                                                                 
                     prefers original SB 45.                                                                                    
                                                                                                                                
TIM KRUG, Planner                                                                                                               
City of Wasilla                                                                                                                 
290 East Herning Avenue                                                                                                         
Wasilla, Alaska  99654                                                                                                          
Telephone:  (907) 373-9052                                                                                                      
POSITION STATEMENT:  Testified in support of SB 45.                                                                             
                                                                                                                                
REPRESENTATIVE DAVIS                                                                                                            
Alaska State Legislature                                                                                                        
Capitol Building, Room 513                                                                                                      
Juneau, Alaska  99801                                                                                                           
Telephone:  (907) 465-2693                                                                                                      
POSITION STATEMENT:  Testified as sponsor of HJR 23.                                                                            
                                                                                                                                
DEB DAVIDSON, Legislative Administrative Assistant                                                                              
     to Representative Davis                                                                                                    
Alaska State Legislature                                                                                                        
Capitol Building, Room 513                                                                                                      
Juneau, Alaska  99801                                                                                                           
Telephone:  (907) 465-2693                                                                                                      
POSITION STATEMENT:  Answered questions regarding HJR 23.                                                                       
                                                                                                                                
KEVIN RITCHIE, Alaska Municipal League                                                                                          
Alaska Conference of Mayors                                                                                                     
217 2nd Street                                                                                                                  
Juneau, Alaska 99801                                                                                                            
Telephone:  (907) 586-1325                                                                                                      
POSITION STATEMENT:  Indicated support of HJR 23.                                                                               
                                                                                                                                
REPRESENTATIVE DYSON                                                                                                            
Alaska State Legislature                                                                                                        
Capitol Building, Room 104                                                                                                      
Juneau, Alaska  99801                                                                                                           
Telephone:  (907) 465-2199                                                                                                      
POSITION STATEMENT:  Testified as sponsor of HB 213.                                                                            
                                                                                                                                
MIKE PAULEY, Legislative Assistant                                                                                              
     to Senator Leman                                                                                                           
Alaska State Legislature                                                                                                        
Capitol Building, Room 115                                                                                                      
Juneau, Alaska  99801                                                                                                           
Telephone:  (907) 465-2095                                                                                                      
POSITION STATEMENT:  Discussed HB 213 and answered questions.                                                                   
                                                                                                                                
DEL SMITH, Deputy Commissioner                                                                                                  
Office of the Commissioner                                                                                                      
Department of Public Safety                                                                                                     
P.O. Box 11200                                                                                                                  
Juneau, Alaska  99811                                                                                                           
Telephone:  (907) 465-4322                                                                                                      
POSITION STATEMENT:  Testified in support of HB 213.                                                                            
                                                                                                                                
DEAN GUANELI, Chief Assistant Attorney General                                                                                  
Legal Services Section - Juneau                                                                                                 
Criminal Division                                                                                                               
Department of Law                                                                                                               
P.O. Box 110300                                                                                                                 
Juneau, Alaska  99811                                                                                                           
Telephone:  (907) 465-3428                                                                                                      
POSITION STATEMENT:  Testified in support of HB 213.                                                                            
                                                                                                                                
BILL KOZLOWSKI                                                                                                                  
713 Fifth Street                                                                                                                
Juneau, Alaska  99801                                                                                                           
Telephone:  (907) 586-1806                                                                                                      
POSITION STATEMENT:  Testified against the mandatory registration                                                               
                     in HB 213.                                                                                                 
                                                                                                                                
ELMER LINDSTROM, Special Assistant                                                                                              
Office of the Commissioner                                                                                                      
Department of Health and Social Services                                                                                        
P.O. Box 110601                                                                                                                 
Juneau, Alaska  99811                                                                                                           
Telephone:  (907) 465-1613                                                                                                      
POSITION STATEMENT:  Testified on HB 213.                                                                                       
                                                                                                                                
AL ZANGRI, Chief                                                                                                                
Vital Statistics                                                                                                                
Division of Public Health                                                                                                       
Department of Health and Social Services                                                                                        
P.O. Box 110675                                                                                                                 
Juneau, Alaska  99811                                                                                                           
Telephone:  (907) 465-3392                                                                                                      
POSITION STATEMENT:  Answered questions on HB 213.                                                                              
                                                                                                                                
DAVID FINKELSTEIN                                                                                                               
Alaskans for Medical Marijuana                                                                                                  
P.O. Box 102320                                                                                                                 
Anchorage, Alaska  99510                                                                                                        
Telephone:  (907) 277-2567                                                                                                      
POSITION STATEMENT:  Testified against HB 213.                                                                                  
                                                                                                                                
ACTION NARRATIVE                                                                                                                
                                                                                                                                
TAPE 99-63, SIDE A                                                                                                              
Number 0001                                                                                                                     
                                                                                                                                
CHAIRMAN PETE KOTT called the House Judiciary Standing Committee                                                                
meeting to order at 1:17 p.m.  Members present at the call to order                                                             
were Representatives Kott, Green, Rokeberg, Croft and Kerttula.                                                                 
Representatives Murkowski and James arrived at 1:22 p.m. and 1:23                                                               
p.m., respectively.                                                                                                             
                                                                                                                                
CSSB 45(FIN) am - LAND OWNER IMMUNITY/ RT-OF-WAY VACATION                                                                       
                                                                                                                                
CHAIRMAN KOTT announced that the first item of business is CS for                                                               
Senate Bill No. 45(FIN) am, "An Act providing that a person who                                                                 
grants certain conservation easements to the state or a                                                                         
municipality that provide public access for recreational purposes                                                               
and the grantee of the easement are immune from tort liability,                                                                 
other than gross negligence or reckless or intentional misconduct,                                                              
for damages to a person who uses the easement under certain                                                                     
conditions; relating to the vacation by the state or a municipality                                                             
of rights-of-way acquired by the state under former 43 U.S.C. 932;                                                              
and providing for an effective date."                                                                                           
                                                                                                                                
Number 0088                                                                                                                     
                                                                                                                                
BRETT HUBER, Legislative Assistant to Senator Rick Halford, Alaska                                                              
State Legislature, came forward on behalf of the prime sponsor.  He                                                             
read in part from the sponsor statement, noting that SB 45 was                                                                  
introduced in response to a desire to preserve and expand                                                                       
recreational access for both Alaskans and visitors to the state, to                                                             
whom the ability to access lands for purposes of skiing, hunting,                                                               
fishing, snow machining and numerous other outdoor activities is                                                                
very important.  He said the potential for liability and litigation                                                             
for private land owners who allow public access to their lands for                                                              
recreational purposes has created pressure to further restrict                                                                  
entry.  It is also proven to be a disincentive to the establishment                                                             
of new recreational opportunities, and it is a significant hurdle                                                               
to the establishment of new trail systems.                                                                                      
                                                                                                                                
MR. HUBER told members that promoting recreational opportunities,                                                               
by establishing additional trail systems, has become a priority for                                                             
a number of groups and organizations around the state.  The sponsor                                                             
has received requests and/or support for this legislation from                                                                  
numerous entities, including the following:  the Department of                                                                  
Natural Resources (DNR), Division of Parks and Outdoor Recreation                                                               
("State Parks"); the Municipality of Anchorage; the Anchorage                                                                   
Economic Development Corporation; the City of Wasilla; the Wasilla,                                                             
Palmer, Chugiak, Eagle River, Fairbanks and state Chambers of                                                                   
Commerce; numerous snow machine associations; the Alaska [Boaters']                                                             
Association; and the Alaska Outdoor Council.  Mr. Huber expressed                                                               
belief that representatives of many of these organizations had                                                                  
either provided written testimony or would provide it that day.                                                                 
                                                                                                                                
MR. HUBER specified that CSSB 45(FIN) am provides limited immunity                                                              
to landowners when they grant the conservation easement to the                                                                  
state or municipality, which allows public access to the easement                                                               
for recreational purposes, providing that there was no compensation                                                             
paid for the access or use.  The same limited immunity is granted                                                               
to the state or municipality that accepts the conservation                                                                      
easement.  In addition, the bill makes a technical correction to                                                                
the statutes governing vacation of RS 2477 [federal Revised Statute                                                             
2477] and section line rights-of-way and easements that were                                                                    
granted under former 43 U.S.C. 932.  The bill also provides concise                                                             
direction in Title 29, the statutes pertaining to local                                                                         
governments, that is reflective of the current procedures for                                                                   
easement vacation existing in Title 19.                                                                                         
                                                                                                                                
Number 0275                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT commented that it seems to be appropriate,                                                                 
particularly for free rights-of-way.  However, he expressed concern                                                             
about specific improved sections.  If an owner allowed access to a                                                              
tramway or railroad line, for example, should there be a different                                                              
standard?                                                                                                                       
                                                                                                                                
MR. HUBER replied that although AS 09.65.200 currently deals with                                                               
limited immunity on unimproved land, it doesn't take in improved                                                                
land.  In many municipal areas - on the Kenai Peninsula, as well as                                                             
in and around Anchorage, the Matanuska-Susitna area and Fairbanks                                                               
- towns have grown up around trails that once existed on unimproved                                                             
land.  Although a trail and its use may not have changed, the                                                                   
classification of the land as "improved" or "unimproved" may have                                                               
changed.                                                                                                                        
                                                                                                                                
MR. HUBER said he believes a significant difference, if talking                                                                 
about something like the use of a tramway, a railroad, or a ski                                                                 
area, is whether the owner is compensated for use of the easement                                                               
or it is free.  He indicated that in working with the Senate                                                                    
Judiciary Committee, the sponsor tried to limit it to a                                                                         
conservation easement, "to try to balance the limited immunity                                                                  
granted versus the concerns you have with improved property, with                                                               
taking in more than what the trail or the original intent of the                                                                
trail was."                                                                                                                     
                                                                                                                                
Number 0441                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN posed a hypothetical situation where an                                                                    
easement suffers from erosion, and someone using it damages a car,                                                              
or young people who are unaware of danger get hurt there.  He asked                                                             
whether the easement under this bill would provide any immunity                                                                 
that wouldn't exist on another part of a person's land.                                                                         
                                                                                                                                
MR. HUBER answered that the limited immunity granted by the                                                                     
provisions of this bill would extend to the conservation easement                                                               
and its use for public access for recreational purposes.  If                                                                    
erosion or something that doesn't constitute gross negligence has                                                               
occurred on the trail, and someone has an accident or is injured,                                                               
that limited immunity would extend to both the landowner and to the                                                             
holder of the conservation easement.  Certainly, he added, if it                                                                
was gross negligence or an act of omission, then the limited                                                                    
immunity wouldn't apply.  Furthermore, it is questionable whether                                                               
that would be seen any differently on land that wasn't subject to                                                               
this conservation easement.  Mr. Huber stated:                                                                                  
                                                                                                                                
     If you're recreating on private property, not on an easement,                                                              
     and you don't have permission to be on that property, then I                                                               
     think you'd have a hard time trying to bring a cause, because                                                              
     it's basically trespass on the property.  If you're recreating                                                             
     on that property currently, ... for a trail that exists now                                                                
     that we're trying to protect, and you had some type of act,                                                                
     again, it would at least require simple negligence for there                                                               
     to be some kind of cause and for you not to have immunity.  If                                                             
     it was a situation like erosion, I believe ... it would be                                                                 
     tough to try to lay that fault on a landowner.                                                                             
                                                                                                                                
Number 0626                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN stated his understanding, from Mr. Huber's                                                                 
response, that this bill wouldn't provide any immunity that isn't                                                               
reasonably afforded anyway.  Rather, it just keeps someone from                                                                 
being a target for litigation.                                                                                                  
                                                                                                                                
MR. HUBER said that is one of the concerns.  The question isn't                                                                 
necessarily whether this gives more protection in the courts, but                                                               
whether it perhaps keeps a landowner out of the courts on a suit                                                                
that may not prevail anyway.                                                                                                    
                                                                                                                                
Number 0662                                                                                                                     
                                                                                                                                
REPRESENTATIVE KERTTULA requested clarification about the                                                                       
exceptions in Section 4.  For example, a person coming onto the                                                                 
easement would have no responsibility to pay the owner and would                                                                
use it for recreational purposes.  She asked, "Then you'd have to                                                               
pay the damages if you were grossly negligent, reckless, or had                                                                 
done something that constituted intentional misconduct; am I                                                                    
reading it right?"                                                                                                              
                                                                                                                                
MR. HUBER said that is correct.                                                                                                 
                                                                                                                                
Number 0705                                                                                                                     
                                                                                                                                
REPRESENTATIVE JAMES requested a definition of "conservation                                                                    
easement."                                                                                                                      
                                                                                                                                
MR. HUBER replied that "conservation easement" exists in Chapter 17                                                             
of Title 34.  It is basically a nonpossessory interest in land,                                                                 
akin to a license to use land without possession of the actual land                                                             
transferring.                                                                                                                   
                                                                                                                                
REPRESENTATIVE JAMES asked who would have a conservation easement,                                                              
and how it would get put on property.                                                                                           
                                                                                                                                
MR. HUBER answered that envisioned under this bill, and what State                                                              
Parks is working on currently, is a conservation easement system                                                                
wherein State Parks talks to a landowner who perhaps has a piece of                                                             
land that they are interested in continuing to use as a trail, or                                                               
perhaps an owner has a piece of land upon which State Parks or a                                                                
municipality would like to begin establishing a trail.  It would                                                                
then come to the landowner, or the landowner could come to the                                                                  
state or municipality; those are the only entities that can receive                                                             
a conservation easement, and that are entitled to this immunity.                                                                
Mr. Huber explained that after going through the process of a                                                                   
negotiated easement, it would be recorded and become attached to                                                                
the property.  Conservation easements can be negotiated both for a                                                              
time specific and for uses inside of what is allowed under AS                                                                   
34.17.                                                                                                                          
                                                                                                                                
REPRESENTATIVE JAMES responded, "Thank you.  I knew I didn't like                                                               
them."                                                                                                                          
                                                                                                                                
Number 0813                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT requested an example of what Mr. Huber believes would                                                             
be gross negligence, as it relates to this.                                                                                     
                                                                                                                                
MR. HUBER answered:                                                                                                             
                                                                                                                                
     I'll try.  I would say that if somebody's granted a                                                                        
     conservation easement, they know that there's a conservation                                                               
     easement for public access, a trail exists.  And perhaps they                                                              
     go out and do some backhoe work, have something underground,                                                               
     something that they want to move, have a problem with the                                                                  
     septic tank, and then dig a trench in the ground that crosses                                                              
     into that conservation easement, fail to mark that trench,                                                                 
     fail to notice that there's a trench in the ground.  Somebody                                                              
     comes along, expecting to use the trail as it's available for                                                              
     use, and falls in this hole that's been created.                                                                           
                                                                                                                                
     Mr. Chairman, also, if somebody would know there's a                                                                       
     conservation easement and trail access across their land,                                                                  
     string a wire or a cable to deny that access, I think those                                                                
     would constitute ... gross negligence.  Those are a couple of                                                              
     examples.                                                                                                                  
                                                                                                                                
Number 0880                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT asked whether AS 09.65.200 doesn't do the same                                                             
thing.  He paraphrased a portion of it, which states:                                                                           
                                                                                                                                
     (a) An owner of unimproved land is not liable in tort, except                                                              
     for an act or omission that constitutes gross negligence or                                                                
     reckless or intentional misconduct, for damages for the injury                                                             
     to or death of a person who enters onto or remains on the                                                                  
     unimproved portion of land if (1) the injury or death resulted                                                             
     from a natural condition of the unimproved portion of the land                                                             
     or the person entered onto the land for recreation; and (2)                                                                
     the person had no responsibility to compensate the owner for                                                               
     the person's use or occupancy of the land.                                                                                 
                                                                                                                                
MR. HUBER replied:                                                                                                              
                                                                                                                                
     What you're getting at is land that doesn't meet the supreme                                                               
     court three-part test for unimproved land.  Say there's land,                                                              
     that there's a five-acre parcel, the conservation easement or                                                              
     trail in question, looking at just the provisions of 09.600,                                                               
     across a portion of the land.  Another portion of the land has                                                             
     been improved.  It's possible, then, that all the land would                                                               
     be considered "improved" and then would fall outside of the                                                                
     limited immunity granted for unimproved land.                                                                              
                                                                                                                                
Number 0931                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT expressed his understanding that the goal is                                                               
to ensure that the proximity of improvements doesn't affect this.                                                               
He asked, "Do we still mean the natural condition ...?  If I'm                                                                  
actually traveling on the improved portion, not this three-part                                                                 
test but the actual improved portion, is there any problem with                                                                 
making that the normal rules?"                                                                                                  
                                                                                                                                
MR. HUBER requested clarification.                                                                                              
                                                                                                                                
REPRESENTATIVE CROFT said he would think about it and try to                                                                    
rephrase it better later.                                                                                                       
                                                                                                                                
REPRESENTATIVE KOTT asked whether anyone in Juneau wanted to                                                                    
testify; there was no response.  He then called upon Dick Bishop.                                                               
                                                                                                                                
Number 0993                                                                                                                     
                                                                                                                                
DICK BISHOP, Alaska Outdoor Council, testified via teleconference                                                               
from Fairbanks in support of SB 45 and the current version, CSSB
45(FIN) am.  He reminded members that his organization has worked                                                               
hard on advocating public access in general, and RS 2477                                                                        
rights-of-way in particular.  He expressed appreciation for                                                                     
public-spirited landowners who allow others to cross or use their                                                               
lands; he believes they should be protected from possibly frivolous                                                             
lawsuits.  Mr. Bishop informed members that the Alaska Outdoor                                                                  
Council prefers the original language in SB 45 because it is                                                                    
broader in terms of tort immunity.  However, they do support and                                                                
urge passage of this version, which they believe to be a start in                                                               
the right direction.                                                                                                            
                                                                                                                                
Number 1075                                                                                                                     
                                                                                                                                
TIM KRUG, Planner, City of Wasilla, testified via teleconference                                                                
from the Matanuska-Susitna Legislative Information Office, stating                                                              
support for SB 45 on behalf of the city for the following reasons.                                                              
The City of Wasilla is the fastest-growing city in Alaska, and                                                                  
trails across private property are rapidly diminishing with ongoing                                                             
development.  Although the city's trails plan was adopted as part                                                               
of its comprehensive plan, several identified trails travel over                                                                
private property; without new legislation, the future of such                                                                   
trails may be in jeopardy.  They need a law to protect private                                                                  
landowners who allow trails to cross their property, and this will                                                              
encourage other landowners to do so.  Bills like SB 45 are needed                                                               
to allow the local city council to determine if it is appropriate                                                               
for the DNR, the Department of Transportation and Public                                                                        
Facilities, or another state agency to vacate a local right-of-way.                                                             
Furthermore, the people need to have input towards the vacation of                                                              
rights-of-way that could affect future trails.                                                                                  
                                                                                                                                
Number 1143                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT asked whether anyone else on teleconference wished to                                                             
testify; he then closed public testimony.                                                                                       
                                                                                                                                
REPRESENTATIVE ROKEBERG expressed surprise that nobody was present                                                              
from the Administration, as there had been a bill introduced by the                                                             
Governor on the same topic.  He stated his assumption that the                                                                  
Administration supports this.                                                                                                   
                                                                                                                                
CHAIRMAN KOTT said he believed there had been testimony earlier                                                                 
that indicated the department supports it.  He noted that someone                                                               
from the Administration was present, in case there was a specific                                                               
question.  He asked whether there was further discussion.                                                                       
                                                                                                                                
Number 1198                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG made a motion to move CSSB 45(FIN) am from                                                              
the committee with individual recommendations and any attached                                                                  
fiscal notes.  There being no objection, CSSB 45(FIN) am was moved                                                              
from the House Judiciary Standing Committee.                                                                                    
                                                                                                                                
HJR 23 - COMMUNITY DEVELOP FUND/PFD/BUD RESERVE                                                                                 
                                                                                                                                
CHAIRMAN KOTT announced the next order of business is HOUSE JOINT                                                               
RESOLUTION NO. 23, Proposing amendments to the Constitution of the                                                              
State of Alaska relating to the community development fund, the                                                                 
permanent fund, and the budget reserve fund.                                                                                    
                                                                                                                                
Number 1259                                                                                                                     
                                                                                                                                
REPRESENTATIVE DAVIS, sponsor, Alaska State Legislature, noted that                                                             
there was testimony on this legislation last year when it was                                                                   
called the community dividend fund which has since been changed to                                                              
the community development fund.  He explained that this is an                                                                   
endowment for municipal assistance and revenue sharing.  The                                                                    
earnings from this endowment would be distributed to legal                                                                      
municipalities.  This plan calls for $750 million from the                                                                      
constitutional budget reserve (CBR) to be placed in the community                                                               
development fund where it will draw interest.  The earnings from                                                                
that will be distributed to the municipalities.  Additionally,                                                                  
Representative Davis informed the committee that he was pondering                                                               
trying to generate additional revenues to the corpus of the                                                                     
endowment.  Therefore, HJR 23 still includes receipt of two percent                                                             
of the dividend earnings for 20 years.                                                                                          
                                                                                                                                
REPRESENTATIVE DAVIS acknowledged that the resolution is left vague                                                             
and noncommittal as to who would administer the fund and the                                                                    
details of the distribution of the fund.  Furthermore, the                                                                      
resolution is left completely open with regard to how                                                                           
municipalities would spend the funds received from the endowment.                                                               
He indicated that there would be the desire to roll a portion of                                                                
the fund back into the fund in order for the fund to grow.                                                                      
Representative Davis hoped this fund and its distribution would                                                                 
grow.  He envisioned municipalities taking over responsibilities                                                                
that the state currently provides such as road maintenance,                                                                     
education projects, community schools, et cetera.  Representative                                                               
Davis recognized that this plan may have come at an inopportune                                                                 
time as there is another plan such as the Healthy Alaska Plan.                                                                  
However, this endowment may be an opportunity in view of the funds                                                              
the House eliminated to municipal assistance and revenue sharing.                                                               
He noted that Representative Moses has a similar proposal.                                                                      
                                                                                                                                
CHAIRMAN KOTT expressed his understanding that those areas not                                                                  
included in the resolution would be done statutorially.                                                                         
                                                                                                                                
REPRESENTATIVE DAVIS said that he prefers to keep things simple                                                                 
when going before the voters.  In further response to Chairman                                                                  
Kott, Representative Davis explained that if this passes it would                                                               
be before the voters at the next general election.  If it passes,                                                               
the money would be transferred to the fund and given a year to                                                                  
generate revenue with the first distribution being in fiscal year                                                               
2002.  He pointed out that Table 1 in the committee packet                                                                      
illustrates the results with and without inflation proofing.                                                                    
Therefore, the first distribution in 2002 without inflation would                                                               
result in $117 million which is large because the distributions                                                                 
would actually be from two years of earned income.  If there is                                                                 
inflation proofing at three percent, the first distribution would                                                               
be $69 million.                                                                                                                 
                                                                                                                                
CHAIRMAN KOTT asked if Representative Davis envisioned this fund                                                                
replacing the current appropriation for municipal assistance and                                                                
revenue sharing.                                                                                                                
                                                                                                                                
REPRESENTATIVE DAVIS replied yes.                                                                                               
                                                                                                                                
REPRESENTATIVE MURKOWSKI asked if Representative Davis intended for                                                             
the schools in the community to be funded through this endowment or                                                             
was he referring to the community school concept.                                                                               
                                                                                                                                
REPRESENTATIVE DAVIS clarified that he was referring to the                                                                     
community school program.                                                                                                       
                                                                                                                                
REPRESENTATIVE GREEN asked if the estimated growth of this                                                                      
endowment would be comparable to the permanent fund dividend.                                                                   
                                                                                                                                
Number 1792                                                                                                                     
                                                                                                                                
DEB DAVIDSON, Legislative Administrative Assistant to                                                                           
Representative Davis, Alaska State Legislature, said that the                                                                   
tables before the committee were provided with data from the                                                                    
permanent fund and the same inflation rate was utilized as is for                                                               
the permanent fund.                                                                                                             
                                                                                                                                
REPRESENTATIVE GREEN asked if this is a way around a dedicated fund                                                             
to support municipalities.                                                                                                      
                                                                                                                                
REPRESENTATIVE DAVIS clarified that this is a dedicated fund.                                                                   
                                                                                                                                
MS. DAVIDSON explained, in response to Representative Croft, that                                                               
because the total earnings may be a little higher than the                                                                      
percentage on the permanent fund, the language says that the fund                                                               
will be invested to yield competitive market rates.  The Department                                                             
of Revenue calculated the earnings based on how the CBR is invested                                                             
because it has more latitude than with the permanent fund.  The                                                                 
inflation rate utilized for the permanent fund and the CBR was                                                                  
utilized, while the investment scenarios and portfolios of the CBR                                                              
were utilized for the community development fund.  Therefore, the                                                               
estimate of total earnings is a little higher due to the different                                                              
investment policies.  In further response to Representative Croft,                                                              
Ms. Davidson believed that the rate was around eight percent.                                                                   
According to the original table, the realized return to the                                                                     
community development fund was considered at 7.3 percent.  She                                                                  
clarified that the $58 million earnings is the 7.3 percent without                                                              
inflation proofing.  The total return would remain the same at $5                                                               
million, from which $23 million for inflation proofing would be                                                                 
subtracted.                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT asked if the total earnings is the combination                                                             
of the 2 percent from the permanent fund and the interest that is                                                               
taken off of it.                                                                                                                
                                                                                                                                
MS. DAVIDSON clarified that the total earnings is what is earned on                                                             
the balance of the principal.  However, the table reads, for say                                                                
fiscal year 2001, $750 million plus the $37 million - 2 percent -                                                               
plus the earnings on that total becomes the principal.  There is no                                                             
distribution the first year.                                                                                                    
                                                                                                                                
Number 2069                                                                                                                     
                                                                                                                                
KEVIN RITCHIE, Alaska Municipal League (AML), Alaska Conference of                                                              
Mayors, said that this is an exciting concept.  Municipal                                                                       
assistance and revenue sharing have been a difficulty in the state                                                              
budget for years.  Furthermore, those budget areas have decreased                                                               
each year which has created substantial discord between the state                                                               
and the municipalities.  This concept would not only create                                                                     
stability in local government, but also a vehicle to accomplish                                                                 
efficiencies in state government.  He posed the example of road                                                                 
maintenance.  In many areas there is a city and a state road shop.                                                              
Although the city may be more efficient, the city cannot take over                                                              
road maintenance because the tax money for such is not available                                                                
and there is not a vehicle at the state level for such.  If the                                                                 
state wanted to transfer state maintenance to municipalities, it                                                                
would be possible to add an additional endowment to the fund and                                                                
transfer those with a continuing source of revenue.  Such would                                                                 
result in a more efficient system as well as a stable source of                                                                 
revenue to pay for the system over time.  Mr. Ritchie felt this                                                                 
concept has arrived at a most appropriate time.                                                                                 
                                                                                                                                
REPRESENTATIVE JAMES commented that she was sure the municipalities                                                             
would like this.  She inquired as to how many other groups would                                                                
prefer an endowment so as to avoid going to the legislature for                                                                 
funding.                                                                                                                        
                                                                                                                                
MR. RITCHIE said that there is a unique relationship between the                                                                
state and municipalities.  In essence, municipalities are state                                                                 
government.  He likened municipalities to a local franchise of the                                                              
state government.                                                                                                               
                                                                                                                                
Number 2236                                                                                                                     
                                                                                                                                
REPRESENTATIVE JAMES asked if there has been thought of payment in                                                              
lieu of taxes.  Representative James stated that she is generally                                                               
opposed to endowments because there is not necessarily a                                                                        
relationship between the amount of funds received and the amount of                                                             
funds needed.  It seems more responsible to have a need to be                                                                   
funded.  Currently, there is no opportunity for a municipality to                                                               
provide any evidence of need.  Representative James emphasized that                                                             
the state should recognize its obligation to assist in some                                                                     
relationship with the municipalities.  With this legislation, that                                                              
is lost.                                                                                                                        
                                                                                                                                
MR. RITCHIE commented that the concept of payment in lieu of taxes                                                              
is great.  He pointed out that some communities include much state                                                              
property while others do not and therefore, need is not necessarily                                                             
mirrored.  Mr. Ritchie believed that under this plan, the state                                                                 
would define how much money is distributed and could define what                                                                
the money is distributed for which would provide some control.                                                                  
                                                                                                                                
REPRESENTATIVE JAMES clarified that she was concerned that the                                                                  
money available would not be enough while the same need exists.                                                                 
She reiterated that there should be a relationship between the                                                                  
money distributed and the need which is lost with endowments.                                                                   
                                                                                                                                
CHAIRMAN KOTT noted that under this proposal the municipality would                                                             
receive more than is currently dispersed under the revenue sharing                                                              
and municipal assistance.                                                                                                       
                                                                                                                                
REPRESENTATIVE CROFT pointed out, "A lot of the ideas that are                                                                  
being thrown around now are for endowing the entire, all the pots                                                               
we have, putting them together and then having everyone come up and                                                             
say now 'do we fund foster care or municipal assistance?' or and                                                                
keep that discretion.  It certainly was a preference of the framers                                                             
of our constitution, that we not do a lot of these different pots.                                                              
Why wouldn't it be the preferable approach to endow everything and                                                              
then still have the discretion to dole whether it's too much or too                                                             
little in any one particular year."                                                                                             
                                                                                                                                
MR. RITCHIE asked if Representative Croft meant leaving it as it is                                                             
now with revenue sharing to be an annual appropriation for a                                                                    
revenue sharing program.                                                                                                        
                                                                                                                                
REPRESENTATIVE CROFT replied yes.  He suggested endowing the entire                                                             
structure and still have people come to the legislature for their                                                               
share of the funds.                                                                                                             
                                                                                                                                
MR. RITCHIE pointed out that revenue sharing could get zeroed out                                                               
and there is not a mechanism in state government to study the                                                                   
impacts of state government on municipal governments.  There can be                                                             
significant impacts on municipal government that do not receive                                                                 
study which he believed to be the case with the major cuts to                                                                   
revenue sharing.  Mr. Ritchie said he was unsure as to how to                                                                   
improve that relationship.  Municipalities consider the notion of                                                               
if the state were to take over a service.  For example, the senior                                                              
citizen property tax exemption was initially created with the                                                                   
promise of full reimbursement of the cost which happened for a few                                                              
years.  Of course, things change.                                                                                               
                                                                                                                                
TAPE 99-63, SIDE B                                                                                                              
                                                                                                                                
MR. RITCHIE commented that to be able to discuss with                                                                           
municipalities the ability to transfer certain functions, having a                                                              
steady source of revenue makes sense.  With regard to endowing                                                                  
everything, Mr. Ritchie said that municipalities are "literally                                                                 
half of what the state does."  If all the municipal budgets were                                                                
added, it would amount to about $2.4 billion which is a tremendous                                                              
group of the services the state provides.  According to the                                                                     
Department of Community & Regional Affairs, 75-85 percent of the                                                                
services provided by municipalities fall into the essential                                                                     
services category that was identified for the Healthy Alaska Plan;                                                              
those include public health and safety, education, and                                                                          
transportation.                                                                                                                 
                                                                                                                                
Number 0048                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT asked whether this proposition would be counter to                                                                
the policy of phasing out municipal assistance and revenue sharing,                                                             
if that is the legislature's direction.                                                                                         
                                                                                                                                
MR. RITCHIE stated that the AML and the Alaska Conference of Mayors                                                             
disagrees with that policy.  If the state eliminated all funding to                                                             
municipal governments, essential services would plummet.  Mr.                                                                   
Ritchie said, "In a sense, we feel that eliminating revenue sharing                                                             
on the one hand is saying that communities without the ability to                                                               
provide services go without and there is going to be a very large                                                               
property tax or sales tax increase in communities that can afford                                                               
to do that ....  And that is probably a long-range fiscal plan                                                                  
issue.  If the state were to, as part of its plan, wanted to                                                                    
increase statewide property taxes that is a legitimate thing to                                                                 
discuss as a part of the plan, but we feel that is the kind of                                                                  
impact that you have to look at."                                                                                               
                                                                                                                                
REPRESENTATIVE MURKOWSKI returned to Representative James' comments                                                             
and she hoped that if such an endowment happens, the state could                                                                
specify which areas the municipality would have to take over.                                                                   
Therefore, municipalities which receive more funds would take over                                                              
more services and there would be an evening out with respect to how                                                             
much funding a municipality receives in relation to what it must                                                                
take over.                                                                                                                      
                                                                                                                                
Number 0180                                                                                                                     
                                                                                                                                
MR. RITCHIE responded, in response to Representative James, that                                                                
there are 98 municipalities which have a sales tax.                                                                             
                                                                                                                                
REPRESENTATIVE JAMES pointed out that Anchorage and Fairbanks do                                                                
not have a sales tax.  She indicated that those municipalities                                                                  
continually cry that they cannot do anything due to the property                                                                
tax cap, but a sales tax could be implemented.                                                                                  
                                                                                                                                
MR. RITCHIE said that he believed the property tax rate in                                                                      
Anchorage is around 20 mills while in comparison, the property tax                                                              
in Juneau is 12 mills, but there is a 5 percent sales tax in                                                                    
Juneau.  Mr. Ritchie commented that it does sort of work out.                                                                   
                                                                                                                                
REPRESENTATIVE JAMES interjected that her point is that there are                                                               
still options.                                                                                                                  
                                                                                                                                
REPRESENTATIVE GREEN understood that Mr. Ritchie believed that if                                                               
this fund were created, $750 million would be taken from the CBR                                                                
and the state would not have to deal with funding for municipal                                                                 
revenue sharing.  However, that is taking $750 million out of the                                                               
stream.  He asked if there has been consideration given to which                                                                
communities would not receive this funding.                                                                                     
                                                                                                                                
MR. RITCHIE mentioned that this year's funding for municipal                                                                    
assistance and revenue sharing is about $48 million and capital                                                                 
matching grants amount to $15 million which results in a little                                                                 
more than the first year of funding under this proposal.  Mr.                                                                   
Ritchie use road service as an example.  He believed that many                                                                  
municipalities would be able to provide road maintenance service as                                                             
a single entity better than can be accomplished as a state and                                                                  
local service structure.  However, no municipality could currently                                                              
afford to take over state road maintenance and there is no                                                                      
guarantee that the state would provide funding in the future for a                                                              
negotiated contract.  In that sense, money would not be taken away                                                              
from anyone and there would be attempts to be more efficient thus,                                                              
saving money in a sense.                                                                                                        
                                                                                                                                
MR. RITCHIE responded further.  For example, if the state is                                                                    
spending $20 million on road service in a community.  A city could                                                              
assume that responsibility and potentially do it for less because                                                               
operations are being combined.  That extra money would not be lost.                                                             
The city would do more to compensate for receiving more funds.                                                                  
                                                                                                                                
Number 0386                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN commented that may not be in the state's best                                                              
interest.                                                                                                                       
                                                                                                                                
REPRESENTATIVE KERTTULA suggested that it may make more sense to                                                                
place the funds into one large fund and earmark it there.                                                                       
                                                                                                                                
MS. DAVIDSON informed the committee that when Representative Davis                                                              
developed this legislation, he recognized that each community has                                                               
different needs and priorities.  Part of the problem is that the                                                                
state allocates funds according to the different issues such as                                                                 
transportation.  Representative Davis believed there would be more                                                              
options for municipalities to have the ability to utilize the money                                                             
for the needs the municipality felt important.  This would also                                                                 
make it easier for constituents to go to the local government than                                                              
to the state.  Furthermore, when municipalities come to the state                                                               
for funds, the state could review how the community development                                                                 
funds were utilized when determining the funding for a particular                                                               
need.                                                                                                                           
                                                                                                                                
There being no one else to testify on HJR 23, public testimony was                                                              
closed.                                                                                                                         
                                                                                                                                
REPRESENTATIVE JAMES stated that she was willing to move HJR 23                                                                 
from committee, although she is a no vote.  Perhaps, HJR 23 needs                                                               
to be in House Finance which is its next committee of referral.                                                                 
                                                                                                                                
CHAIRMAN KOTT announced that it was his desire for HJR 23 to be                                                                 
forwarded to House Finance in order to deal with the legislation in                                                             
the context of the long-range fiscal plan.                                                                                      
                                                                                                                                
REPRESENTATIVE GREEN commented that HJR 23 probably "flies in the                                                               
face" of one of the big issues.  He emphasized that he has many                                                                 
reservations regarding HJR 23.                                                                                                  
                                                                                                                                
Number 0633                                                                                                                     
                                                                                                                                
REPRESENTATIVE JAMES moved to report HJR 23 out of committee with                                                               
individual recommendations and the accompanying fiscal notes.                                                                   
                                                                                                                                
REPRESENTATIVE ROKEBERG objected.  He explained that he has                                                                     
supported this in the past, but it is not consistent with what is                                                               
attempted in the long-range fiscal plan.  This sends a mixed                                                                    
message to the public.  Furthermore, the two percent is                                                                         
over-reaching in terms of establishing an endowment.                                                                            
Representative Rokeberg mentioned that if Chairman Kott wishes to                                                               
move HJR 23, he would help do so, but would have to sign the report                                                             
"Amend."  Representative Rokeberg withdrew his objection.                                                                       
                                                                                                                                
There being no further objection, HJR 23 was reported from the                                                                  
House Judiciary Standing Committee.                                                                                             
                                                                                                                                
The committee stood at-ease from 2:21 p.m. to 2:25 p.m.                                                                         
                                                                                                                                
HB 213 - MEDICAL USE OF MARIJUANA                                                                                               
                                                                                                                                
[Contains discussion relevant to SB 94.]                                                                                        
                                                                                                                                
CHAIRMAN KOTT announced the next order of business is HOUSE BILL                                                                
NO. 213, "An Act relating to the medical use of marijuana; and                                                                  
providing for an effective date."                                                                                               
                                                                                                                                
REPRESENTATIVE DYSON, sponsor, Alaska State Legislature, informed                                                               
the committee that HB 213 is a companion bill to SB 94.  He                                                                     
explained that SB 94 is an attempt to make the medical marijuana                                                                
initiative Alaskans voted on workable.  The amendments encompassed                                                              
in HB 213 mirror those done in the Senate.  At the Administration's                                                             
request, the attempt is to meet the requirements of the Department                                                              
of Health & Social Services (DHSS) and the Department of Public                                                                 
Safety.  Representative Dyson predicted that public testimony will                                                              
probably say that this legislation is "messing with the will of the                                                             
people" which is not the intention of the House Health, Education                                                               
& Social Services Standing Committee.                                                                                           
                                                                                                                                
Number 0855                                                                                                                     
                                                                                                                                
MIKE PAULEY, Legislative Assistant for Senator Leman, Alaska State                                                              
Legislature, highlighted the three major changes encompassed in the                                                             
legislation.  Firstly, registration would be required with DHSS in                                                              
order to have a permit which entitles an individual to utilize                                                                  
marijuana for medical purposes.  The initiative passed last fall                                                                
created a state registry, but did not require that an individual                                                                
register to have the right to use medical marijuana.  The                                                                       
initiative clearly states that even if an individual is not                                                                     
registered, an individual can use marijuana for medical purposes.                                                               
This creates a problem from the view of law enforcement because                                                                 
without a registration requirement, it would be difficult for                                                                   
police to determine legal marijuana from illegal marijuana.                                                                     
                                                                                                                                
MR. PAULEY turned to the second change which deals with the                                                                     
possession limits.  The initiative set out a suggested limit of one                                                             
ounce of marijuana in usable form and six plants of which no more                                                               
than three can be mature and flowering.  The initiative goes onto                                                               
say that an individual can possess more marijuana than the above                                                                
amount if medically justified.  However, there is no criteria that                                                              
would establish what would be considered medically justified.                                                                   
Therefore, HB 213 and SB 94 would establish a limit of one ounce of                                                             
marijuana in usable form and six plants.  This would eliminate any                                                              
ambiguity, from the perspective of law enforcement, with regard to                                                              
what amount is legal or illegal.                                                                                                
                                                                                                                                
MR. PAULEY highlighted the third change which deals with the role                                                               
of the primary caregiver.  The initiative identifies a primary                                                                  
caregiver as an individual who can assist with the procurement and                                                              
delivery of marijuana to a patient in need.  The problem is that                                                                
there are not many restrictions regarding who the primary caregiver                                                             
can be, how many patients he/she can serve; there is room for                                                                   
abuse.  Therefore, HB 213 establishes that a patient can only have                                                              
one primary caregiver and a caregiver can have only one patient.                                                                
There are some narrowly defined exceptions.  Furthermore, a primary                                                             
caregiver cannot be guilty of a felony violation of Alaska's drug                                                               
laws.  A primary caregiver also cannot be an individual that is                                                                 
currently on probation or parole.  He explained that the intent is                                                              
to eliminate the possibility of criminals registering as primary                                                                
caregivers for the purpose of having a legal right to distribute                                                                
marijuana.  Mr. Pauley noted that there are some technical changes                                                              
in HB 213, but the aforementioned areas are the core.                                                                           
                                                                                                                                
CHAIRMAN KOTT asked if a registered individual can walk around with                                                             
one ounce of marijuana on their person.                                                                                         
                                                                                                                                
MR. PAULEY pointed out that there is a provision which specifies                                                                
that the marijuana is not to be used in a public place.  The                                                                    
legislation includes an exception allowing the individual to carry                                                              
one ounce of marijuana, in a closed container, on the person, and                                                               
not visible to others.  This exception is only for the purpose of                                                               
transporting the marijuana to a place where it can be legally used.                                                             
In further response to Chairman Kott, Mr. Pauley believed that an                                                               
Elks Lodge would be considered a private place, but Mr. Guaneli                                                                 
from the Department of Law may be better qualified to answer.                                                                   
                                                                                                                                
Number 1148                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT inquired as to how many joints one ounce of marijuana                                                             
would make.                                                                                                                     
                                                                                                                                
MR. PAULEY said that a lot of marijuana can be produced from one                                                                
ounce of usable marijuana and six plants.  He noted that Mr. Smith                                                              
from the Department of Public Safety could probably comment on                                                                  
that.                                                                                                                           
                                                                                                                                
REPRESENTATIVE DYSON stated that 20 to 50 joints can be produced                                                                
from one ounce of marijuana.                                                                                                    
                                                                                                                                
REPRESENTATIVE MURKOWSKI pointed out that the committee packets                                                                 
include testimony from Ms. Adams, Alaskans for Drug-free Youth.                                                                 
Ms. Adams testimony said that she attended a demonstration in which                                                             
one ounce of marijuana resulted in nearly 100 rolled joints.                                                                    
Representative Murkowski informed the committee that she has seen                                                               
that demonstration and has been part of that demonstration.                                                                     
Furthermore, depending upon the potency the effects can last all                                                                
day.                                                                                                                            
                                                                                                                                
Number 1398                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT pointed out that the initiative said, "these                                                               
limits unless medically necessary for more."  He inquired as to                                                                 
where was that changed.                                                                                                         
                                                                                                                                
MR. PAULEY pointed out that the initiative established the                                                                      
possession limits in Section 17.37.020 which is deleted by HB 213.                                                              
The possession limits are established in HB 213 on page 11.                                                                     
                                                                                                                                
REPRESENTATIVE CROFT stated that part of the crux of this                                                                       
initiative was to treat marijuana as other drugs that have similar                                                              
effects such as relieving pain, creating euphoria, or stimulating                                                               
appetite.  "It does not seem to me to be exceptional to have 20 to                                                              
50 pills of a prescription nature for a chronic, maybe even,                                                                    
debilitating disease.  It doesn't seem laughably out of whack.                                                                  
Isn't that a major change?  If a doctor would say to the police and                                                             
swear in court that this was medically necessary and we're just                                                                 
saying no, we're putting an absolute limit."                                                                                    
                                                                                                                                
REPRESENTATIVE DYSON clarified, in response to Representative                                                                   
Murkowski, that it is 100 hits per ounce.  Therefore, it is a                                                                   
supply for many days.                                                                                                           
                                                                                                                                
REPRESENTATIVE CROFT asked, "Is there any such law in our books                                                                 
that if a doctor prescribes 50 pills and it's medically necessary                                                               
and you have a prescription for it, that we're just going to say                                                                
that you can't do that?"                                                                                                        
                                                                                                                                
REPRESENTATIVE DYSON informed the committee that a major problem is                                                             
that the federal law makes it illegal for a doctor to prescribe                                                                 
marijuana.  This problem would be eliminated if the federal                                                                     
government would change marijuana to another schedule to be treated                                                             
as any other prescription medicine.  Such a change would allow                                                                  
doctors to write prescriptions for marijuana, which is currently                                                                
illegal, and pharmacies could dispense marijuana.  Representative                                                               
Dyson encouraged Representative Croft to direct his question to the                                                             
Department of Law and the Department of Public Safety.  He                                                                      
reiterated that the goal is to satisfy law enforcement requirements                                                             
in order to establish illegal and legal users.                                                                                  
                                                                                                                                
REPRESENTATIVE CROFT asked if the committee would hear testimony                                                                
from doctors because this was primarily intended as a medical                                                                   
statement.                                                                                                                      
                                                                                                                                
REPRESENTATIVE DYSON mentioned that he spoke with an intern friend                                                              
of his in Anchorage who took HB 213 to the legislative committee of                                                             
the local American Medical Association (AMA).  This friend said                                                                 
that most doctors would not have difficulty in filling out the                                                                  
form.                                                                                                                           
                                                                                                                                
REPRESENTATIVE DYSON indicated that there would be testimony from                                                               
individuals with desperate physical conditions for whom marijuana                                                               
is really helpful.  Those individuals would be appropriate to                                                                   
inquire as to how many joints a day are needed, how many joints are                                                             
produced from an ounce of marijuana, how long an ounce of marijuana                                                             
lasts, and if the individual has a designated provider who could                                                                
also possess a supply.                                                                                                          
                                                                                                                                
Number 1691                                                                                                                     
                                                                                                                                
REPRESENTATIVE JAMES inquired as to where these individuals would                                                               
get providers.                                                                                                                  
                                                                                                                                
REPRESENTATIVE DYSON discussed his conversations with California                                                                
officials who are concerned with quality control due to the                                                                     
variation in potency and quality.  First California attempted to                                                                
have known government-sponsored plots, but there was concern                                                                    
regarding the protection from nonmedical users.  Now California is                                                              
contemplating indoor growers.  Representative Dyson said that                                                                   
illustrates the difficulty in this situation until the federal                                                                  
government treats marijuana as any other medicine.                                                                              
                                                                                                                                
REPRESENTATIVE JAMES noted that she did not vote for this                                                                       
initiative.  She had the impression that these individuals would                                                                
grow their own or the caregiver would grow the marijuana.                                                                       
Therefore, the possibility of having a provider who provides                                                                    
marijuana to those covered under the initiative and those not would                                                             
be eliminated.                                                                                                                  
                                                                                                                                
CHAIRMAN KOTT inquired as to how three mature, flowering, plants                                                                
equate to the one ounce.                                                                                                        
                                                                                                                                
MR. PAULEY deferred to the Department of Public Safety.  He pointed                                                             
out that the initiative removed marijuana from the list of                                                                      
controlled substances in Alaska.  Prior to the passage of the                                                                   
initiative, the statute read "Marijuana is a schedule VIA                                                                       
controlled substance."  The initiative added the language                                                                       
encompassed in HB 213 on page 2, lines 23-24 which reads, "[EXCEPT                                                              
FOR MARIJUANA POSSESSED FOR MEDICAL PURPOSES UNDER AS 17.37]"  Mr.                                                              
Pauley said, "As far as this state's controlled substances are                                                                  
concerned, marijuana used for medical purposes has no more legal                                                                
significance than a can of 7UP or a jar of peanut butter."                                                                      
Therefore, there are some serious legal implications.  For example,                                                             
it is illegal to have a firearm on your person when under the                                                                   
influence of alcohol or a controlled substance to the point to                                                                  
which the individual's physical or mental condition is impaired.                                                                
That would no longer be true with medical marijuana.  Since medical                                                             
marijuana is no longer a controlled substance, an individual could                                                              
be stoned on marijuana, possess a weapon and that would not be                                                                  
considered a crime.  There are several other statutes that would                                                                
result in similar situations.  Mr Pauley emphasized that HB 213                                                                 
places marijuana back in the controlled substance schedule which is                                                             
very important.                                                                                                                 
                                                                                                                                
Number 2066                                                                                                                     
                                                                                                                                
REPRESENTATIVE KERTTULA asked if registration under the initiative                                                              
was voluntary and has been changed under HB 213 to be mandatory.                                                                
                                                                                                                                
MR. PAULEY explained that the initiative created a registry and Mr.                                                             
Finkelstein has indicated that it was the belief that everyone                                                                  
should register, but the initiative does not state as such.  He                                                                 
directed the committee to page 4, Section 17.37.030 which specifies                                                             
the criteria for medical use of marijuana, there is no mention of                                                               
registration.                                                                                                                   
                                                                                                                                
REPRESENTATIVE KERTTULA pointed out that the initiative does speak                                                              
to registration on page 4, lines 22-25.                                                                                         
                                                                                                                                
MR. PAULEY stated that the language referred to by Representative                                                               
Kerttula does not require registration and there is no disagreement                                                             
on that point.  He mentioned that Mr. Finkelstein testified in                                                                  
previous committees that it was the initiative's intent to leave                                                                
registration optional.                                                                                                          
                                                                                                                                
REPRESENTATIVE MURKOWSKI returned to the issue of quality control.                                                              
She noted that the THC content in marijuana varies widely,                                                                      
especially in Alaska.  Therefore, what works for a patient on a                                                                 
Saturday may not be what works on a Thursday due to the use of a                                                                
different batch of marijuana.  The quality issue is very                                                                        
problematic.                                                                                                                    
                                                                                                                                
REPRESENTATIVE ROKEBERG understood that the constitution provides                                                               
that any initiative cannot be changed in the first two years.                                                                   
                                                                                                                                
MR. PAULEY explained that the legislature cannot repeal a law                                                                   
enacted by initiative for two years, but the law can be amended                                                                 
which is explicitly stated in the constitution.  Mr. Pauley                                                                     
acknowledged that there is a legal gray area.  There have been                                                                  
court cases in which an initiative has been amended in such a                                                                   
dramatic way that it repeals the initiative de facto, but not                                                                   
explicitly.  The consensus is that the courts would find that                                                                   
unconstitutional.  Mr. Pauley did not believe that the changes                                                                  
encompassed in HB 213 are so severe that the court would interpret                                                              
them as repealing a person's right to use medical marijuana.                                                                    
                                                                                                                                
                                                                                                                                
TAPE 99-64, SIDE A                                                                                                              
Number 0001                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG suggested that the committee should get a                                                               
letter to that effect.                                                                                                          
                                                                                                                                
DEL SMITH, Deputy Commissioner, Office of the Commissioner,                                                                     
Department of Public Safety, informed the committee that the drug                                                               
units that have worked with the state troopers and local law                                                                    
enforcement advise that the average plant in Alaska produces about                                                              
four ounces.  It can be anywhere from one ounce to ten ounces                                                                   
depending on the size of the plant.  One ounce and six plants is a                                                              
sufficient amount.                                                                                                              
                                                                                                                                
MR. SMITH addressed the department's concern about "medically                                                                   
necessary" which is not defined anywhere.  Under the Ravin decision                                                             
one could possess marijuana for "personal use" but someone claimed                                                              
100 pounds was his personal use which lead to the four ounce                                                                    
maximum possession for personal use.  Mr. Smith would like a bright                                                             
line for law enforcement with regard to  the patient being                                                                      
registered, the amount of marijuana patients can possess, where the                                                             
patient can possess it, and who is the patient's primary caregiver.                                                             
                                                                                                                                
Number 0374                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT asked what procedures would be available if the                                                                   
patient dies and the caregiver is left with a pound or two of                                                                   
marijuana.  He wondered if it is incumbent on the caregiver to                                                                  
dispose of the marijuana through the department or are there other                                                              
mechanisms that could be used.                                                                                                  
                                                                                                                                
MR. SMITH said he supposed that was an option but he doubted many                                                               
people would follow that particular one.  He is not aware of                                                                    
anything that would require the caregiver to do that.  He did not                                                               
have an answer.                                                                                                                 
                                                                                                                                
REPRESENTATIVE GREEN asked whether there has been any discussion on                                                             
the strength of marijuana, and is there movement towards an                                                                     
undesirable location.                                                                                                           
                                                                                                                                
MR. SMITH answered potentially.  The MMA calls for that amount.                                                                 
There certainly is an increase in the THC content of marijuana from                                                             
20 years ago.                                                                                                                   
                                                                                                                                
REPRESENTATIVE JAMES inquired as to how fast the marijuana plants                                                               
grow.                                                                                                                           
                                                                                                                                
MR. SMITH answered that to be beyond his expertise, although there                                                              
is substantial investment made in greenhouse operations and grow                                                                
lights in the Matanuska Valley.  He has heard the plants can be                                                                 
harvested three to four times a year.                                                                                           
                                                                                                                                
REPRESENTATIVE KERTTULA asked how the registration would work now.                                                              
                                                                                                                                
MR. SMITH explained that if an unregistered individual is found                                                                 
with marijuana, the officers would determine if the person looked                                                               
sick enough to have medical marijuana and if not, the marijuana                                                                 
would be seized and the individual charged with possession.  These                                                              
charges could potentially be undone in court and the marijuana                                                                  
returned which is not a good use of criminal justice resources.                                                                 
Mandatory registration would be more appropriate.                                                                               
                                                                                                                                
REPRESENTATIVE KERTTULA mentioned that Alaska is a state where                                                                  
people don't even want to register their guns.  She predicted the                                                               
same problem with prescription drugs.                                                                                           
                                                                                                                                
MR. SMITH answered he would probably ask if there is a prescription                                                             
for the drug and check for a bottle with the individual's name on                                                               
it which would serve the same purpose as a marijuana registry card.                                                             
                                                                                                                                
                                                                                                                                
Number 0983                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG asked Mr. Smith a large marijuana growing                                                               
area is busted, can the potency of the plants be determined.  Would                                                             
that have any bearing on the charges and/or the evidence acquired?                                                              
                                                                                                                                
MR. SMITH said that the crime lab can determine the THC content,                                                                
but he didn't believe that it would enhance the charge in any way.                                                              
The total amount of marijuana possessed, not necessarily the                                                                    
strength, would determine the charge.                                                                                           
                                                                                                                                
Number 1074                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT asked Mr. Smith if it is illegal for him to                                                                
have codeine without a prescription.                                                                                            
                                                                                                                                
MR. SMITH answered to his knowledge he would need a prescription                                                                
for codeine.                                                                                                                    
                                                                                                                                
REPRESENTATIVE CROFT asked what the standard procedure would be if                                                              
an individual was pulled over and found to have codeine without the                                                             
prescription there.  The individual either doesn't have a                                                                       
prescription or is unwilling to show it to the officer.                                                                         
                                                                                                                                
MR. SMITH responded that is situational.  He could see a situation                                                              
where an officer might seize the pills to look into it further.  In                                                             
further response to Representative Croft, Mr. Smith stated that he                                                              
was unaware of a list of codeine users.                                                                                         
                                                                                                                                
REPRESENTATIVE CROFT inquired as to whether Mr. Smith would attempt                                                             
to find out if the individual had a prescription.                                                                               
                                                                                                                                
MR. SMITH replied if the individual said Dr. Feelgood prescribed                                                                
the drug to him/her, it would be appropriate to call Dr. Feelgood's                                                             
office and asked if that person is a patient.                                                                                   
                                                                                                                                
REPRESENTATIVE CROFT asked whether a warrant would eventually be                                                                
necessary to resolve such a situation.                                                                                          
                                                                                                                                
MR. SMITH replied if the individual was not arrested at the time                                                                
the police would probably have to return with a warrant in order to                                                             
charge the individual with possession.  However, it would depend on                                                             
the situation so it is hard to answer.  He noted that he tries to                                                               
be fair in the application of the law.                                                                                          
                                                                                                                                
REPRESENTATIVE CROFT said when Ravin was passed, four ounces of                                                                 
marijuana was chosen as the amount someone could keep.                                                                          
                                                                                                                                
MR. SMITH clarified that the Ravin decision allowed the possession                                                              
of marijuana.  The legislature determined the amount of four ounces                                                             
after lengthy discussion of whether stems and seeds should count in                                                             
the total amount.  Still, the federal law prohibiting the                                                                       
possession of marijuana was not addressed nor does this particular                                                              
one.                                                                                                                            
                                                                                                                                
REPRESENTATIVE CROFT inquired as to who is allowed to view the list                                                             
of registered medical marijuana users; how onerous would it be for                                                              
law enforcement to have to obtain a warrant to search that list?                                                                
                                                                                                                                
MR. SMITH envisioned the individual carrying the card.  If the                                                                  
individual is not carrying the card, the officer could ask for the                                                              
individual's driver's license and request dispatch review the                                                                   
registry in order to determine if the individual in question is on                                                              
the list.  If that isn't possible, the other option would be to                                                                 
take the marijuana from the individual.                                                                                         
                                                                                                                                
REPRESENTATIVE CROFT commented that the initiative gave them the                                                                
authority to search the list.                                                                                                   
                                                                                                                                
MR. SMITH agreed, but noted that people did not have to register.                                                               
He doesn't want the officers put in the position of trying to                                                                   
determine whether someone is telling the truth about being able to                                                              
possess medical marijuana.  He would rather sort things out and not                                                             
have to charge someone who is legally possessing marijuana.                                                                     
                                                                                                                                
Number 1518                                                                                                                     
                                                                                                                                
DEAN GUANELI, Chief Assistant Attorney General, Legal Services                                                                  
Section - Juneau, Criminal Division, Department of Law, testified                                                               
in Juneau.  He stated that the Administration has heard the voters                                                              
who want to provide marijuana to people with debilitating medical                                                               
conditions.  The aim of the Administration in working with the                                                                  
sponsors of SB 94 and HB 213 is to make a workable system.  There                                                               
are certain flaws in the current initiative that would lead to                                                                  
administrative problems which would ultimately lead to the programs                                                             
failure.  Both SB 94 and HB 213 correct all of those problems                                                                   
therefore, the Administration supports these efforts.                                                                           
                                                                                                                                
Number 1518                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT asked Mr. Guaneli whether an Elk's Club would be                                                                  
considered a public place, and would someone be able to use                                                                     
marijuana there under the current scheme.                                                                                       
                                                                                                                                
MR. GUANELI  explained that the particular provision doesn't use                                                                
the term public place, but rather "open to the general public."                                                                 
Private clubs would not be open to the general public although, an                                                              
argument could be constructed where it is open to the public.  Mr.                                                              
Guaneli believed that if a court is applying that particular                                                                    
language dealing with criminal prosecutions, terms in the law are                                                               
construed against the state in favor of a defendant.  It probably                                                               
would be permissible to use marijuana for medical purposes in a                                                                 
private club.  Having said that, he also felt it would be                                                                       
permissible for the private club to have a by-law saying it doesn't                                                             
want members doing that.                                                                                                        
                                                                                                                                
Number 1690                                                                                                                     
                                                                                                                                
REPRESENTATIVE MURKOWSKI asked whether this could possibly be                                                                   
construed as repealing the initiative.  Has the Department of Law                                                               
taken a position or been asked for an opinion on this?                                                                          
                                                                                                                                
MR. GUANELI said no opinion has been solicited but upon review of                                                               
the various versions of the bills it was determined that at least                                                               
those versions would not constitute an appeal of the initiative.                                                                
In Alaska an initiative cannot be repealed for two years, but it                                                                
can be amended at any time which the courts have construed as                                                                   
giving the legislature very broad discretion to amend initiatives.                                                              
The Alaska Supreme Court has said as long as the basic purpose and                                                              
structure still remain, the legislature can change policy choices                                                               
that the voters adopted.  The basic purpose in structure to allow                                                               
very sick people to have access to marijuana is certainly still                                                                 
retained in any of the versions.  Mr. Guaneli indicated that the                                                                
Department of Law would believe it to be constitutional.                                                                        
                                                                                                                                
Number 1768                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG proposed a situation in which the U.S.                                                                  
Attorney decided to be more aggressive in the enforcement of                                                                    
federal laws.  Could the Alaska State Troopers make an apprehension                                                             
on a judgement call and turn the evidence over to the U.S. Attorney                                                             
for prosecution of federal law?                                                                                                 
                                                                                                                                
MR. GUANELI  replied that is something that is possible and                                                                     
actually happened with a few large marijuana growing operations in                                                              
the Matanuska-Susitna valley several years ago.  A few cases were                                                               
prosecuted by the U. S. Attorney's office and got very stiff                                                                    
sentences which created a situation where the marijuana growers                                                                 
were more willing to go into state court and plead to a state                                                                   
offense rather than be subjected to federal prosecution.  He                                                                    
pointed out that really only occurs with the large growing                                                                      
operations because the federal government doesn't have the                                                                      
resources to deal with the smaller cases.                                                                                       
                                                                                                                                
Number 1835                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG asked whether the U. S. Attorney General                                                                
has articulated a policy about dealing with states who pass                                                                     
initiatives.                                                                                                                    
                                                                                                                                
MR. GUANELI understood that there are a number of discussions                                                                   
underway in terms of developing a national approach to medical                                                                  
marijuana.  He didn't expect the federal government to deal with                                                                
this in terms of enforcement.                                                                                                   
                                                                                                                                
REPRESENTATIVE ROKEBERG asked Mr. Guaneli if he foresaw problems                                                                
enforcing the Alaska state law if marijuana clubs were formed in                                                                
Alaska.                                                                                                                         
                                                                                                                                
MR. GUANELI replied yes.  There is a provision in the initiative                                                                
that says a registered patient may not sell or distribute marijuana                                                             
to anyone who the patient knows is not entitled to use it.  If all                                                              
of the negatives are eliminated, it would result in a registered                                                                
patient being able to sell to other people if the registered                                                                    
patient didn't ask.  Such a provision is likely to result in                                                                    
marijuana clubs or places where registered patients could lawfully                                                              
sell marijuana to other people.  The danger of allowing someone to                                                              
possess more than one ounce and six plants is this provision.  The                                                              
marijuana clubs in California were shut down because there was                                                                  
nothing specific in their law that suggested marijuana clubs were                                                               
legal.  In Alaska the oddly worded provision would allow that which                                                             
is one of the real dangers in this particular initiative.                                                                       
                                                                                                                                
Number 2142                                                                                                                     
                                                                                                                                
BILL KOZLOWSKI, a 27-year-old with severe hemophilia, testified in                                                              
Juneau.  He informed the committee that he has been prescribed                                                                  
narcotics throughout his life, to the point where he was taking 60                                                              
milligrams of morphine a day and 28, four milligram, Dilotted                                                                   
tablets a day.  He commented that is a lot of narcotics, but noted                                                              
that is for pain that is very, very real.  During those times of                                                                
being prescribed large amounts of narcotics he was unable to exist                                                              
in a normal life.  He could not remember having a conversation with                                                             
anybody, what he did yesterday or the day before, and he could not                                                              
hold work due to the pain and daily bleeding in his body.  Until                                                                
five months ago, he was taking the aforementioned amount of                                                                     
narcotics, which would kill most people.  He explained that amount                                                              
of narcotics probably doesn't kill him because he has an enormous                                                               
tolerance to those narcotics.  The more he uses those narcotics,                                                                
the more his body builds up a resistance to them which results in                                                               
the need for more.  He stressed the difficulty this creates when                                                                
coming off of the narcotics.  The withdraw of morphine, which he                                                                
has endured many times, is something he would wish upon no human                                                                
being.  It is an existence where one sweats, vomits, cries and                                                                  
spends the most miserable existence imaginable.  In the last five                                                               
months Mr. Kozlowski has stopped using narcotics that extensively.                                                              
However, his life will never be free of narcotics because of his                                                                
disability; but on the day-to-day basis it can be.  Marijuana is                                                                
one thing that he can use that allows him to remember a                                                                         
conversation, to have a life, to go for a walk with his wife.                                                                   
Small things that many people take for granted but are very, very                                                               
important.                                                                                                                      
                                                                                                                                
MR. KOZLOWSKI commented that he hears talk about usage in the                                                                   
amount of an ounce or four ounces.  The reality is, over time,                                                                  
people build immunity to these things and terminally ill people who                                                             
are not getting better, are always going to have these problems.                                                                
Nobody is going to develop a cure for hemophilia, Hepatitis C,  or                                                              
HIV [human immunodeficiency virus] right now.  Those diseases are                                                               
debilitating.  With regard to HB 213, he expressed concern with the                                                             
registration requirement.  Mr. Kozlowski informed the committee                                                                 
that he has had to endure discrimination because of hemophilia.                                                                 
Ninety percent of hemophiliacs have HIV which was contracted                                                                    
through blood in the 1980s.  He commented that he is one of the                                                                 
luckiest hemophiliacs he knows.  He is the only hemophiliac in                                                                  
Alaska who does not have HIV and one of six on the west coast.  He                                                              
finds it hard to listen to people make jokes with regard to                                                                     
marijuana use.  He emphasized that people are forgetting this is                                                                
about more physical pain than one could ever imagine.  He pointed                                                               
out that many look at him as a 27-year-old man who could lift 10                                                                
pounds, but he can't.  Lifting 10 pounds, moving that chair, can                                                                
cause an internal bleed which results in pain for weeks.                                                                        
                                                                                                                                
MR. KOZLOWSKI informed the committee that the drug products that he                                                             
uses cost $2,000 a pop.  Sometimes he uses that two or three times                                                              
a day, for months.  Last year his blood costs and pharmaceuticals                                                               
cost $550,000.  He noted that he has personally spent thousands of                                                              
dollars of his money on pharmaceuticals.  Currently, with medical                                                               
marijuana he can grow it in his home, take care of his own needs                                                                
and be a productive member of society.  The only other option is                                                                
narcotics; marijuana or narcotics, it seems simple.  He said that                                                               
he can either be a junkie and have a short life or he can make his                                                              
life the best he can.  The laws don't matter to people who are in                                                               
this position because they are going to die anyway of something                                                                 
much more painful than anything the state could do to them.  Mr.                                                                
Kozlowski urged the committee to give it a chance to work as it is.                                                             
                                                                                                                                
Number 2374                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG asked Mr. Kozlowski if he believed people                                                               
without major medical debilitating conditions should be able to                                                                 
take advantage of his condition and use marijuana "piggy backing"                                                               
off of his problems.                                                                                                            
                                                                                                                                
MR. KOZLOWSKI commented that currently someone can go to a doctor                                                               
and he can legally prescribe morphine, Demerol, Dilotted,                                                                       
Methadone, all drugs that are so much harder on the body.  The                                                                  
argument that if marijuana is legalized for medicine then everybody                                                             
will be smoking it, if that were true then people would be using                                                                
morphine in the streets, which is a much more addictive drug.  He                                                               
informed the committee that if he were to stop smoking marijuana                                                                
for pain, he could go to sleep, it may be painful, but he would be                                                              
able to sleep and his body would not have to sweat out narcotics                                                                
for up to a week.  If he were taking narcotics for a month and he                                                               
stopped, it could kill him because of the toxicity of those drugs.                                                              
                                                                                                                                
Number 2431                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG expressed concern that medical marijuana                                                                
users are being used, to a degree, to allow people, acting under                                                                
the guise of a condition, to do something that has formerly been                                                                
illegal.  Such people don't have a problem like Mr. Kozlowski and                                                               
are taking advantage of loopholes in the law.                                                                                   
                                                                                                                                
MR. KOZLOWSKI pointed out that those people would be subject to the                                                             
same regulations and laws that apply to morphine, methadone,                                                                    
Demerol, Dilotted, all those classes of drugs.  If someone has a                                                                
prescription for morphine, it is illegal for that person to give it                                                             
to someone else, just as it is illegal for him to give his                                                                      
marijuana to his wife.                                                                                                          
                                                                                                                                
TAPE 99-64, SIDE B                                                                                                              
                                                                                                                                
MR. KOZLOWSKI likened the registry, which can be checked to verify                                                              
for criminal investigation or prosecution, to fishing from a                                                                    
stocked pool.  What is to protect him from having that abused by                                                                
someone that is really against the use of marijuana for medical or                                                              
any purpose?                                                                                                                    
                                                                                                                                
Number 0033                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG noted that anyone with a prescription is on                                                             
a list from the dispensing pharmacy.                                                                                            
                                                                                                                                
MR. KOZLOWSKI asked how that registry is accessed.                                                                              
                                                                                                                                
REPRESENTATIVE ROKEBERG said he believes it is confidential in                                                                  
terms of the pharmacy and is not generally available to the public.                                                             
                                                                                                                                
MR. KOZLOWSKI noted Mr. Smith's testimony that officers could call                                                              
a doctor's office and ask for verification if someone has a                                                                     
prescription.  Mr. Kozlowski said the officer can't do unless the                                                               
patient has given the doctor a release of medical information.                                                                  
With regard to discrimination, people assume that Mr. Kozlowski has                                                             
HIV because he is a hemophiliac and people treat him like "so, do                                                               
you have AIDS yet?"  Many times he heard that from doctors and                                                                  
nurses.  He said he doesn't want to live through that stigma.  He                                                               
said he is not a criminal and is not somebody who actively hurts                                                                
any individual.  Mr. Kozlowski stated that he is only looking to                                                                
take care of his own medical needs which is not a lot to ask.  The                                                              
voters of Alaska have agreed that the people who need medical                                                                   
marijuana should be eligible to use medical marijuana.                                                                          
                                                                                                                                
Number 0102                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT commented that the committee is trying to do that and                                                             
eliminate the loopholes to give the people exactly what they want.                                                              
He asked Mr. Kozlowski how many plants would be enough.                                                                         
                                                                                                                                
MR. KOZLOWSKI answered that it seems to him that police everyday                                                                
can discern if somebody is using tobacco or alcohol legally.  If                                                                
somebody is driving with a truckload of marijuana, it probably is                                                               
not for medicinal use.  He doesn't know anyone who uses medical                                                                 
marijuana who would ever claim that a truckload would be their                                                                  
need.  As far as personal use goes, Mr. Kozlowski informed the                                                                  
committee that he smokes one ounce every 10 days to control the                                                                 
pain.  Without that he would be up to 60 milligrams of morphine and                                                             
28, four milligram tablets of Dilotted a day.  He emphasized that                                                               
they are splitting hairs in areas he doesn't know how one could                                                                 
ever control.  He didn't know how one could ever control the amount                                                             
taken from one plant because it does vary so greatly.                                                                           
                                                                                                                                
Number 0240                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT asked Mr. Kozlowski if he knew what one ounce of                                                                  
marijuana would cost on the street if he were to buy it illegally.                                                              
                                                                                                                                
MR. KOZLOWSKI answered between $500 and $600 per ounce.                                                                         
                                                                                                                                
Number 0274                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT asked whether Mr. Kozlowski started off using one                                                                 
ounce every 10 days or has his system built up an immunity.                                                                     
                                                                                                                                
MR. KOZLOWSKI replied that his system has built up a tolerance to                                                               
marijuana as was the case with morphine and other drugs.  Over                                                                  
time, the more he uses, the more he will need.  If anyone in this                                                               
room took 60 milligrams of morphine, he would die.  He explained                                                                
that he uses marijuana when his body hurts, when there is blood in                                                              
his joints, when his hips or shoulders have swollen, when it hurts                                                              
just to get up and go to the bathroom.  He noted that marijuana                                                                 
does not make him high or feel good, but it gets him to a point                                                                 
where the pain is not the only thing he can think of.                                                                           
                                                                                                                                
REPRESENTATIVE ROKEBERG asked how long it takes to grow a                                                                       
decent-size plant.                                                                                                              
                                                                                                                                
MR. KOZLOWSKI answered that it depends of which method is used.                                                                 
Some people used hydroponics with which every six to eight weeks                                                                
one can turnover a crop, while with dirt it would probably take                                                                 
three to four months for a crop.                                                                                                
                                                                                                                                
CHAIRMAN KOTT surmised then that once a quarter he could turn over                                                              
a crop.                                                                                                                         
                                                                                                                                
MR. KOZLOWSKI agreed.  In further response to Representative                                                                    
Rokeberg, he stated that the size of that crop would depend.                                                                    
Marijuana varies in strength, size, quality, and growth.                                                                        
                                                                                                                                
REPRESENTATIVE ROKEBERG noted that the problems regarding amounts                                                               
of medical marijuana are caused by what the initiative stipulated                                                               
in the open-ended clause.                                                                                                       
                                                                                                                                
Number 0427                                                                                                                     
                                                                                                                                
REPRESENTATIVE MURKOWSKI agreed that people like Mr. Kozlowski need                                                             
to have medical marijuana and they need to make it work.  She                                                                   
recognized that this needs to work for Mr. Kozlowski as well as for                                                             
the rest of the public which includes law enforcement and children.                                                             
She expressed the need to understand from someone like Mr.                                                                      
Kozlowski, the problems of the registration.  If registration is                                                                
optional, Mr. Kozlowski is put in jeopardy.  The registration                                                                   
process was proposed in an effort to protect him, but if                                                                        
registration is not mandatory, then  Mr. Kozlowski is at risk                                                                   
which is not the intention.  She asked how they would get from here                                                             
to there.                                                                                                                       
                                                                                                                                
Number 0516                                                                                                                     
                                                                                                                                
MR. KOZLOWSKI understood that if he did somehow become in trouble                                                               
with the law for medical marijuana, that under Measure 8, that as                                                               
long as he had a doctor's recommendation that was documented in his                                                             
medical file, that would not be an issue.                                                                                       
                                                                                                                                
Number 0545                                                                                                                     
                                                                                                                                
REPRESENTATIVE MURKOWSKI wondered what happens if he is stopped at                                                              
1 a.m. on Saturday night and the doctor isn't around until Monday                                                               
morning to confirm his recommendation.  Would the officer seize his                                                             
marijuana which he desperately needs over the weekend?  She                                                                     
wondered how  Mr. Kozlowski would be protected in that instance if                                                              
there is no registration.                                                                                                       
                                                                                                                                
Number 0590                                                                                                                     
                                                                                                                                
MR. KOZLOWSKI commented that the registration is a Catch-22 because                                                             
the State of Alaska has made a law that allows people to use                                                                    
medical marijuana while the United States of America still has not                                                              
allowed that law.  Therefore, the registry would place his name on                                                              
a registered list of things that are federally illegal which is                                                                 
asking for a lot more problems.  He indicated that it is crazy to                                                               
register his medical condition on an open registry for which his                                                                
doctor has to write a letter stating his exact medical condition.                                                               
This would ask people to state that they have HIV, hepatitis and a                                                              
whole gamut of medical conditions that are no one's business.                                                                   
Placing his name on a list that is still federally illegal is more                                                              
threatening to him than the state.  He informed the committee that                                                              
he has used marijuana, on and off, for 10 years for pain                                                                        
medication.  Only in the last five months has he used it solely and                                                             
he has never had any problems with the law.  He questioned how the                                                              
registry is really going to protect him so that his medical records                                                             
are not released and that somebody is not going to access those                                                                 
files and discriminate against him for his disability.                                                                          
                                                                                                                                
Number 0671                                                                                                                     
                                                                                                                                
REPRESENTATIVE MURKOWSKI understood that the registry list would be                                                             
confidential and would only be available to law enforcement                                                                     
officers.                                                                                                                       
                                                                                                                                
CHAIRMAN KOTT agreed that was his understanding.  It wouldn't be                                                                
like the sex offender list that is available on the Internet.  He                                                               
asked Mr. Kozlowski if it would offer some satisfaction if the                                                                  
physician did not have to identify the patient's symptoms.                                                                      
                                                                                                                                
Number 0733                                                                                                                     
                                                                                                                                
MR. KOZLOWSKI pointed out that he is having to prove his innocence                                                              
before he is guilty of anything.  He reiterated that he is not a                                                                
criminal.  If a police officer knocked on his door and asked if he                                                              
was growing marijuana, he would be happy to show the officer his                                                                
plants, his $40,000 worth of blood supply.  People with a medical                                                               
problem have plenty to illustrate their medical condition such as                                                               
other medicines and documentation that they can show a police                                                                   
officer.  The registry is an invasion of privacy.                                                                               
                                                                                                                                
REPRESENTATIVE ROKEBERG noted that the short form of the initiative                                                             
on the ballot indicated that a registry would be expected by the                                                                
public.                                                                                                                         
                                                                                                                                
MR. KOZLOWSKI said it should be optional.                                                                                       
                                                                                                                                
REPRESENTATIVE ROKEBERG commented that he didn't believe the public                                                             
knew that, and that is the problem with this initiative.  He                                                                    
suggested to Mr. Kozlowski that, because it has been passed as a                                                                
statutory privilege and not a constitutional right, the best thing                                                              
to do to protect himself and his ability in the future is to try to                                                             
make some modifications of this law to live with.  Representative                                                               
Rokeberg indicated that Mr. Kozlowski also has some responsibility                                                              
with the privilege that was granted by the people of Alaska to meet                                                             
his needs.                                                                                                                      
                                                                                                                                
REPRESENTATIVE ROKEBERG said he didn't believe the whole nine-page                                                              
chapter was on the ballot; it was a short-form question on the                                                                  
ballot.  "People were sold that and nobody, nobody reads the whole                                                              
bloody law.  I'm going to tell you, 99 percent of the people who                                                                
voted didn't read this.  If 5 percent did, then 99 percent didn't                                                               
understand it."                                                                                                                 
                                                                                                                                
MR. KOZLOWSKI answered "Excuse me, but that is silly to say because                                                             
that is like saying if 99 percent of people don't read these things                                                             
then how are you elected.  How are you people elected if people are                                                             
not paying attention and reading and being part of the process, how                                                             
are you elected in your seats?"                                                                                                 
                                                                                                                                
REPRESENTATIVE ROKEBERG said the initiative is nine pages long and                                                              
he didn't believe people read it.  He referred back to the registry                                                             
and indicated that there is an expectation that there would be a                                                                
registry.                                                                                                                       
                                                                                                                                
MR. KOZLOWSKI commented that when he read it he noticed that it did                                                             
not have mandatory registration.  He reiterated that it is nobody's                                                             
business what debilitating disorder he has.                                                                                     
                                                                                                                                
Number 0949                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT asked Mr. Kozlowski if that ballot proposition the                                                                
way it was written required the end user to register on a                                                                       
confidential list and carry a card, would he have supported it.                                                                 
                                                                                                                                
MR. KOZLOWSKI replied that he probably would have supported it                                                                  
because it was a necessity, not for just him.  He stressed that he                                                              
is present for the people who are too scared to talk; people who                                                                
are afraid to say that they use marijuana for pain.                                                                             
                                                                                                                                
REPRESENTATIVE KERTTULA appreciated Mr. Kozlowski's courage for                                                                 
coming in and testifying and putting himself at some risk.  She                                                                 
believed a registry could be created for the people who could go do                                                             
it; but for those who don't want to do it, they may be taking a                                                                 
risk.  She appreciated what Mr. Smith said also but her own                                                                     
personal belief is that Alaska is a state where no one wants to                                                                 
register their guns, why would they want to register their medical                                                              
conditions.                                                                                                                     
                                                                                                                                
Number 1015                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT interjected that Alaskans do register their guns if                                                               
they carry them under their coats.                                                                                              
                                                                                                                                
REPRESENTATIVE ROKEBERG clarified that he was not advocating                                                                    
registering conditions.                                                                                                         
                                                                                                                                
The committee took an at-ease from 4:08 p.m. until 4:48 p.m.                                                                    
                                                                                                                                
ELMER LINDSTROM, Special Assistant, Office of the Commissioner,                                                                 
Department of Health and Social Services [DHSS] came forward to                                                                 
testify.  He said they have worked with the Department of Law and                                                               
the Department of Public Safety to try to come up with                                                                          
recommendations that everyone could live with and support as the                                                                
administration.  The DHSS brought a different perspective than the                                                              
law enforcement agencies.  The previous testimony reflected some of                                                             
the concerns of DHSS.  He recognized that law enforcement had                                                                   
legitimate concerns.  However, any solution must not make the                                                                   
administrative burden on DHSS difficult or unduly interfere with                                                                
the doctor/patient relationship which is key to making this program                                                             
work and most importantly, is the issue of patient confidentiality.                                                             
The bill has gone through numerous iterations.  He assumed that the                                                             
amendments that provided before the meeting will be before the                                                                  
committee for consideration.                                                                                                    
                                                                                                                                
Number 1226                                                                                                                     
                                                                                                                                
MR. LINDSTROM referenced an amendment, labeled G.1, which addresses                                                             
the confidentiality issue.  The previously expressed concern                                                                    
regarding a requirement to be on the mandatory registry is a real                                                               
concern.  The issue of confidentiality is something that DHSS lives                                                             
with everyday of the week and there is nothing that DHSS takes more                                                             
seriously than the issue of patient or client confidentiality.  The                                                             
department has a very good record over the years of respecting the                                                              
law in that regard.  He noted that it is not infrequent that he                                                                 
gets called to task by members of the legislature because DHSS does                                                             
take the issue of confidentiality so seriously.  He recommended                                                                 
that the committee consider amendment G.1.  The department doesn't                                                              
believe it has any reason to have information from a doctor that                                                                
specifies the underlying condition that a person might have.  There                                                             
is no law enforcement reason for DHSS to have that information and                                                              
furthermore, the Department of Public Safety has also said it                                                                   
doesn't need that specific information.  He acknowledged that there                                                             
will be people who will not register, but ultimately that will get                                                              
resolved over time when people gain confidence that DHSS can be a                                                               
responsible custodian of that registry and that likewise law                                                                    
enforcement will be responsible in their ability to access that                                                                 
registry.                                                                                                                       
                                                                                                                                
REPRESENTATIVE KERTTULA noted that the fiscal note doubles to go                                                                
from voluntary to mandatory registration.  There isn't anything                                                                 
illegal about not registering now, it is voluntary, she asked                                                                   
whether that was the department's understanding of the way it                                                                   
worked right now.                                                                                                               
                                                                                                                                
MR. LINDSTROM agreed that currently it is a voluntary registry.                                                                 
The department has developed regulations which will go into effect                                                              
June 1, and persons will be able to register voluntarily with DHSS.                                                             
Regarding the fiscal note, the department had no ability to get                                                                 
funding in anticipation of the initiative passing so there was a                                                                
budget increment in their budget which was turned down by both the                                                              
House and Senate Finance Committees.  It was about $70,000.                                                                     
Without this fiscal note of $57,000, this legislation is not going                                                              
to satisfy the real concerns of the law enforcement community                                                                   
because DHSS will not be able to provide the information that law                                                               
enforcement will need.  The department envisions law enforcement                                                                
having real time access to the registry through the public safety                                                               
network, criminal justice system.  Without this money, law                                                                      
enforcement won't have that information.                                                                                        
                                                                                                                                
Number 1574                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN asked if an unregistered person is stopped,                                                                
would that person be prosecuted.                                                                                                
                                                                                                                                
MR. LINDSTROM explained that the current regulations will have to                                                               
be written from top to bottom assuming that this legislation                                                                    
passes. If the legislation doesn't pass, the regulations are a                                                                  
process for the department to operate a voluntary register.  If an                                                              
unregistered person is stopped, the department wouldn't know                                                                    
anymore than the cop on the beat because there would be nothing in                                                              
the register.                                                                                                                   
                                                                                                                                
REPRESENTATIVE KERTTULA  inquired as to what kinds of drugs do                                                                  
people have to register for now.                                                                                                
                                                                                                                                
MR. LINDSTROM replied that this is a unique situation.                                                                          
                                                                                                                                
Number 1664                                                                                                                     
                                                                                                                                
REPRESENTATIVE MURKOWSKI asked whether the regulations have changed                                                             
much since March after public comments were received.                                                                           
                                                                                                                                
MR. LINDSTROM informed the committee that he was surprised the                                                                  
department received virtually no public comment on the regulations                                                              
The regulations remain pretty much the same as those presented to                                                               
the House Health, Education and Social Services committee earlier.                                                              
                                                                                                                                
REPRESENTATIVE MURKOWSKI inquired as to what would be in effect in                                                              
the interim if they pass either SB 94 or HB 213 and DHSS would be                                                               
back at the drawing board with their regulations.                                                                               
                                                                                                                                
MR. LINDSTROM answered that the new legislation would override the                                                              
existing regulations to the extent the current regulations are                                                                  
contrary to anything in the amended law.  Some of the elements                                                                  
would remain consistent, but the department would need to develop                                                               
additional regulations on the new material from this bill.  The                                                                 
department would operate on the basis of the legislation itself                                                                 
until new regulations were in place.  This program would call for                                                               
moving forward with those regulations pretty quickly.                                                                           
                                                                                                                                
REPRESENTATIVE KERTTULA pointed  out that under HB 213 peace                                                                    
officers would be allowed to access the record just in the course                                                               
of a criminal investigation.  She asked Mr. Lindstrom if he knew of                                                             
any other medical records that could be accessed in such a manner                                                               
without a warrant or without the person's consent.                                                                              
                                                                                                                                
AL ZANGRI, Chief, Vital Statistics, Division of Public Health,                                                                  
Department of Health and Social Services, answered that DHSS has                                                                
routine access to all medical birth records.                                                                                    
                                                                                                                                
MR. LINDSTROM noted that DHSS has no objection to any of the                                                                    
amendments but wanted to reference the one as being most pertinent.                                                             
                                                                                                                                
REPRESENTATIVE GREEN asked Mr. Lindstrom if the department has no                                                               
objection, does that mean the department is ambivalent or that it                                                               
would support the amendments.                                                                                                   
                                                                                                                                
MR. LINDSTROM responded that the department really likes Amendment                                                              
1 and likes the others okay.                                                                                                    
                                                                                                                                
DAVID FINKELSTEIN, Alaskans for Medical Marijuana, came forward to                                                              
testify.  He explained that when this legislation was originally                                                                
introduced, it was March 4, the day the initiative went into                                                                    
effect.  At that time the Alaskans for Medical Marijuana were quite                                                             
defensive and were concerned that this legislation would repeal                                                                 
the initiative and the patients wouldn't benefit from the new law.                                                              
Since that time things have changed.  The Administration and                                                                    
Senator Leman have tried their best to respond to many of the                                                                   
concerns expressed by doctors and patients which is appreciated.                                                                
However, Alaskans for Medical Marijuana remains opposed to this                                                                 
legislation, but will continue to try to work with the                                                                          
Administration and with the sponsor.  He didn't want any of his                                                                 
comments to detract from their efforts to try to find something                                                                 
that will not alienate and eliminate the patients from the benefits                                                             
of this law.                                                                                                                    
                                                                                                                                
MR. FINKELSTEIN informed the committee that the drafters of the                                                                 
Alaskan initiative tried to put in many details since that was the                                                              
number one complaint of the California initiative.  He agreed that                                                              
there are some legitimate complaints with some of the details and                                                               
how those are laid out.  The reason there was so little response to                                                             
the regulations is that many of those issues were already dealt                                                                 
with in statute through the initiative.  The drafters also learned                                                              
from the California experience with regard to amounts.  California                                                              
has no limit on amount.  Of all the initiatives that have passed                                                                
around the country, the standard of one ounce, six plants which can                                                             
only be exceeded if someone can prove in court that it is medically                                                             
justified, is the lowest limit of any state who has adopted such an                                                             
initiative.  He is not aware of any state with an amount lower than                                                             
Alaska.  It is the lowest amount the group could come up with and                                                               
still give the patients a chance to produce some useable marijuana.                                                             
                                                                                                                                
                                                                                                                                
MR. FINKELSTEIN noted that the California initiative of 1996 did                                                                
not have any set list of medical conditions; it was basically                                                                   
whatever the doctor wanted to recommend.  He personally feels that                                                              
is the way it should be done, but that approach was not chosen                                                                  
because Californians complained that people could get marijuana for                                                             
a hangnail or something.  In Alaska it has to be something on the                                                               
list of medical conditions.  The registration system has faced a                                                                
lot of complaints, as if there is something deceptive to having a                                                               
registration system.  There hasn't been a single state that has                                                                 
adopted an initiative with a mandatory registration.  The states                                                                
are striving for optional registration.                                                                                         
                                                                                                                                
TAPE 99-65, SIDE A                                                                                                              
                                                                                                                                
MR. FINKELSTEIN continued saying that unregistered patients have no                                                             
protection from arrest.  He appreciated all the concerns expressed                                                              
by the Administration and recognized the need to work together to                                                               
address those concerns.  However, the system will work as it is                                                                 
because the patients who don't want to register are not worried                                                                 
about arrest.  Furthermore, f someone hasn't registered and gets                                                                
into court, all he/she will have to do is provide evidence that                                                                 
he/she is legally allowed to have medical marijuana.  Mr.                                                                       
Finkelstein encouraged patients to register if they want protection                                                             
of the law.  This is a non-issue because the patients are out there                                                             
with small amounts of marijuana and not bothering anyone.  He                                                                   
agreed they can't do anything about private locations, but they                                                                 
want to prohibit use in public location.                                                                                        
                                                                                                                                
MR. FINKELSTEIN pointed out that there are several issues that                                                                  
revolve around mandatory registration.  The system should be such                                                               
that it will benefit the patient to encourage registration.  He                                                                 
cited the kind of protection the patient receives from law                                                                      
enforcement as a critical issue.  Under the initiative, any patient                                                             
who follows the law, meets all the requirements, registers with the                                                             
state, is not subject to arrest.  The burden is on the prosecution                                                              
to prove their case.  Under this bill, the term not subject to                                                                  
arrest is not provided, even to patients who register with the                                                                  
state.  Instead the registered patients receive an affirmative                                                                  
defense which as he understands it, places the burden of proof on                                                               
the patient.  The patient has an affirmative defense if the patient                                                             
can come up with the evidence that illustrates compliance with the                                                              
law such as possession of the registration card, proof that the                                                                 
patient didn't use marijuana in public and that the patient is                                                                  
under the limits.  It is up to the patient to show that and until                                                               
the patient can prove that, the patient is presumed guilty.  If                                                                 
patients make the effort to register and comply, they should have                                                               
the presumption of innocence.                                                                                                   
                                                                                                                                
MR. FINKELSTEIN stated that with mandatory registration patients                                                                
will be discouraged to register due to access to the list.  The                                                                 
initiative only allowed access to the list by the department and                                                                
law enforcement officials in order to verify someone showing a                                                                  
card.  This bill adds two conditions.  The first one is someone                                                                 
claiming this as a defense but doesn't have a card; this would give                                                             
the officer an opportunity to check the list for their name and                                                                 
that is certainly logical.  The second is to access the list for                                                                
investigations which is not the intent of the initiative nor the                                                                
purpose of this system.  Furthermore, it will discourage patients                                                               
from registering.  Doctors disclosing symptoms to the state will                                                                
also discourage participation.                                                                                                  
                                                                                                                                
MR. FINKELSTEIN commented that the issue of caregivers is also                                                                  
important.  The department adopted some reasonable regulations on                                                               
the current law which allows only one patient per caregiver unless                                                              
one can illustrate a circumstance in which the caregiver has a                                                                  
particular relationship with more than one patient.  If there is a                                                              
hospice situation where someone is professionally offering                                                                      
assistance to more than one person, it seems reasonable that a                                                                  
hospice employee could apply to the department and be allowed to                                                                
have a relationship with more than one patient.  The bill makes an                                                              
attempt to address some situations through the reference to family                                                              
members.  However, Mr. Finkelstein believed that there are other                                                                
circumstances in which the caregiver is not a family member.  He                                                                
wouldn't expect many applications for such situations.  The                                                                     
department should have the discretion to review such circumstances.                                                             
                                                                                                                                
                                                                                                                                
Number 0647                                                                                                                     
                                                                                                                                
MR. FINKELSTEIN referred to the issue of how the patients obtain                                                                
marijuana.  The patient has the option of growing marijuana, but                                                                
some will not grow marijuana either because their condition doesn't                                                             
allow it or they don't succeed at it or for unknown reasons.  Mr.                                                               
Finkelstein indicated that it is not as easy to obtain the                                                                      
marijuana as it sounds.  The choice is for the patients to go on                                                                
the black market.  There were attempts to establish a system that                                                               
would allow patients to get marijuana from other patients, but                                                                  
DHSS and the sponsor have reasonable objections.  He suggested that                                                             
the middle ground would be to ban sales between anyone, but that                                                                
one patient could give marijuana to another patient as long as                                                                  
there is no compensation involved.  Otherwise, how will the                                                                     
patients obtain the marijuana legitimately?  He acknowledged that                                                               
there is a problem in that area and they can't solve it.  The                                                                   
ultimate solution would be to categorize it as Schedule II so                                                                   
patients could obtain it from pharmacies, but in the meantime this                                                              
would be a humane way to help those who can't obtain it.                                                                        
                                                                                                                                
Number 0737                                                                                                                     
                                                                                                                                
MR. FINKELSTEIN identified the forfeiture language as another key                                                               
provision.  The initiative was written with the idea that anyone                                                                
who isn't breaking the law, who hasn't been found guilty, doesn't                                                               
forfeit their assets.  The drug forfeiture law is pretty extreme                                                                
and for good reason.  He clarified that the language of the                                                                     
initiative says that if someone isn't guilty, that their assets are                                                             
returned.  Mr. Finkelstein returned to the subject of the                                                                       
caregiver.  He explained that the age of the caregiver was set at                                                               
18 because if a 17-year-old claimed to be a caregiver and it turned                                                             
out they weren't, the 17-year-old would be under the juvenile laws                                                              
and not subject to the full force of the law.  The Department of                                                                
Law and the sponsor felt that 21 was more reasonable because of                                                                 
alcohol laws and other things while Mr. Finkelstein believed 18 is                                                              
a more appropriate age.                                                                                                         
                                                                                                                                
REPRESENTATIVE GREEN asked whether marijuana is similar to tobacco                                                              
in that it will dry out if it is kept very long.                                                                                
                                                                                                                                
MR. FINKELSTEIN recalled a television program about a federal farm                                                              
in Mississippi that grows marijuana for eight patients.  The                                                                    
federal government itself provides marijuana for these patients.                                                                
He discussed the process and assumed there would be some issues of                                                              
volatility or whatever.  He didn't know what the pharmacy or                                                                    
distribution point does with it at that point.  Mr. Finkelstein                                                                 
believed it ironic that the federal government who is opposed to                                                                
medical marijuana is distributing medical marijuana.                                                                            
                                                                                                                                
REPRESENTATIVE MURKOWSKI asked Mr. Finkelstein how the state who                                                                
limited the amount of marijuana to two months supply defined a two                                                              
months supply.                                                                                                                  
                                                                                                                                
MR. FINKELSTEIN answered he didn't know and it didn't sound like a                                                              
good solution to him.  He commented that the patient doesn't care                                                               
what the amount is but rather how long it will last.  He believed                                                               
that law enforcement was unhappy with that provision.                                                                           
                                                                                                                                
MR. FINKELSTEIN indicated that they never meant to imply that there                                                             
would be any attempt by law enforcement officials to misuse the                                                                 
existing forfeiture law which is a very complicated subject.  He                                                                
noted that they have never had a patient claim there has been any                                                               
particular harassment using the issue of forfeiture on medical                                                                  
marijuana patients, but the protection does seem reasonable.                                                                    
                                                                                                                                
REPRESENTATIVE JAMES noted that she didn't vote for this                                                                        
initiative.  However, she indicated that she would have voted for                                                               
allowing the use of medical marijuana if she had felt comfortable                                                               
with the initiative's language.  She recognized people are using                                                                
marijuana illegally now.  She expressed concern with the                                                                        
registration; where are patients going to get marijuana from when                                                               
there is no legal way to obtain it.  She didn't believe seriously                                                               
ill people are going to be able to grow their own.  Perhaps, the                                                                
caregiver may be able to grow it for the patient which still raises                                                             
the question of how do they get it.  Are these ill people that are                                                              
allowed to use medical marijuana allowed to drive a car and do                                                                  
other things under the influence of marijuana?  It seems as if the                                                              
patients have carte blanche authority to do whatever, whenever and                                                              
she was nervous about that.                                                                                                     
                                                                                                                                
MR. FINKELSTEIN noted that they tried to address that, but the                                                                  
Administration's view is that their way is better.   The issue of                                                               
driving while inebriated still applies, there is no exception.  If                                                              
someone drives under prescription drugs, he/she is an incapable                                                                 
driver and is not protected which also applies to medical                                                                       
marijuana.  He pointed out that there was general language that no                                                              
person using medical marijuana shall endanger the health and                                                                    
well-being of another person.  Although the language doesn't                                                                    
specifically say driving, but it would certainly be a violation of                                                              
the law if someone is threatening anyone else by driving under the                                                              
influence of marijuana.  With regard to the issue of where patients                                                             
get marijuana, that is a problem to which he didn't have the                                                                    
answer.  If it is ever Schedule II, people can get it at the                                                                    
pharmacies.  He noted that the federal government has confiscated                                                               
plenty which could be redistributed.                                                                                            
                                                                                                                                
REPRESENTATIVE JAMES asked whether Mr. Finkelstein believes, now                                                                
that the initiative has passed, there will be more people using                                                                 
marijuana for medical uses or will the same folks continue using                                                                
it.                                                                                                                             
                                                                                                                                
MR. FINKELSTEIN said he could only speak anecdotally based on his                                                               
contact with patients.  Everyone is different but lots of people                                                                
indicate that they would with an identification card.  Many have                                                                
been law-abiding their whole lives and are not about to take this                                                               
illegal drug without some proof to protect them from being thrown                                                               
in jail.                                                                                                                        
                                                                                                                                
CHAIRMAN KOTT asked where senior citizens who are not growers are                                                               
acquiring the marijuana.                                                                                                        
                                                                                                                                
MR. FINKELSTEIN speculated that senior citizens obtain marijuana                                                                
through family members or younger people who have connections.  The                                                             
statistics provided by the state indicate that marijuana is not                                                                 
hard to get.  However, there are plenty of people who don't have or                                                             
don't want any contact and those folks are going to be in a                                                                     
dilemma.  Hopefully some of them will figure a way out of it.                                                                   
                                                                                                                                
CHAIRMAN KOTT said if he were in a situation where he needed some                                                               
marijuana to curb some serious pain, would he be guilty of a crime                                                              
by buying an illegal drug on the street.                                                                                        
                                                                                                                                
MR. SMITH said he couldn't foresee a situation, or it would be                                                                  
rare, that they would be involved at that point unless they had                                                                 
some sting operation and somebody shows up to buy some marijuana.                                                               
He believed there could be a good argument if the individual was a                                                              
medical marijuana user, that the search and acquisition of it might                                                             
fall under the protection as a registered user.  It is unlikely the                                                             
person would be prosecuted.  If it were prosecuted, he doubted that                                                             
the jury would find the person guilty.  If he were the officer at                                                               
the time, he would probably not make the arrest, but that doesn't                                                               
guarantee another officer would do the same.                                                                                    
                                                                                                                                
MR. FINKELSTEIN informed the committee that California has tried                                                                
many approaches.  The city of Oakland has attempted to develop a                                                                
distribution system using the government in an attempt to eliminate                                                             
the black market; they are trying to recirculate extra marijuana                                                                
from drug busts.  There are things that could be done.                                                                          
                                                                                                                                
Number 1690                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN asked whether one can tell the difference                                                                  
between plants by looking at them.                                                                                              
                                                                                                                                
MR. FINKELSTEIN said he had no idea.  He identified the bigger                                                                  
issue as how do patients deal with this issue of different                                                                      
strengths.  Patients claim that there are more compounds in medical                                                             
marijuana that have an effect.  Smoking allows the patients to                                                                  
self-titrate which allows the patient to control the amount and the                                                             
patient can receive a relatively quick reaction.  Drugs, like                                                                   
Marinol, take one to two hours to take effect and often don't work                                                              
for the problems such as nausea.  Mr. Finkelstein explained that                                                                
patients basically smoke a small amount, determine if it is                                                                     
effective and if not, smoke more.  It is a practical system, but it                                                             
is not very scientific.                                                                                                         
                                                                                                                                
REPRESENTATIVE GREEN wonders if there is information on volume.                                                                 
                                                                                                                                
MR. FINKELSTEIN answered there are lot of issues about growing.  He                                                             
commented that law enforcement isn't busting people in their homes                                                              
for small amounts.  Furthermore, it is unlikely that someone is                                                                 
going to have forests of marijuana in their home.  The intent                                                                   
certainly is to have a limited quantity, but the intent is to have                                                              
an exception for people who need more than the specified limit to,                                                              
if necessary, make their case in court to prove that more is                                                                    
medically justified.  That provision is no longer included.                                                                     
                                                                                                                                
REPRESENTATIVE MURKOWSKI asked Mr. Finkelstein if people understand                                                             
that they have the protection of the law only if they register.                                                                 
                                                                                                                                
MR. FINKELSTEIN responded that whatever understanding people have                                                               
is derived from what state government or advocacy groups explain to                                                             
them so he feels that understanding is yet to be derived.  The                                                                  
average citizen, patient, and even doctors don't know what the law                                                              
is.  If the patient does not want to be subject to arrest, they                                                                 
must register with the State of Alaska.  That is the message they                                                               
have been consistently giving out.  Although, Mr. Finkelstein                                                                   
agreed that the departments' concerns are very reasonable, he                                                                   
didn't think it would be a problem.                                                                                             
                                                                                                                                
REPRESENTATIVE MURKOWSKI expressed the need to strike a balance.                                                                
If people don't register, they have to understand that law                                                                      
enforcement is going to do the 1 a.m. arrest.                                                                                   
                                                                                                                                
MR. FINKELSTEIN agreed.                                                                                                         
                                                                                                                                
CHAIRMAN KOTT noted that there is an enormous amount of public                                                                  
safety time taken up with this issue of arresting someone who is a                                                              
legitimate user, but hasn't registered.  He wondered if there                                                                   
should be some sort of consequence for taking up that amount of                                                                 
public safety time.                                                                                                             
                                                                                                                                
MR. FINKELSTEIN agreed that is a good point.  The way it is going                                                               
to work is the same way it works now.  Officers on the street have                                                              
a large amount of discretion.  Even in the past, if someone has a                                                               
doctor's letter and all the requirements, odds are they wouldn't be                                                             
arrested.  He has heard that law enforcement has too much to do                                                                 
without focusing on small amounts in the home.                                                                                  
                                                                                                                                
REPRESENTATIVE ROKEBERG asked whether the National Institute of                                                                 
Health will be taking up the medical use of marijuana.                                                                          
                                                                                                                                
MR. FINKELSTEIN answered that Barry McCaffrey, the "drug czar"                                                                  
asked the Institute of Medicine, arm of the National Academy of                                                                 
Science, to do a study after the California initiative passed.  The                                                             
report came out this spring and the general findings were that                                                                  
medical marijuana does help patients in a variety of circumstances.                                                             
The report also found that smoking marijuana was detrimental and                                                                
the ultimate solution had to be some sort of system developed to                                                                
avoid the toxic side-effects of smoking.                                                                                        
                                                                                                                                
CHAIRMAN KOTT suggested that the committee proceed to the                                                                       
amendments.                                                                                                                     
                                                                                                                                
TAPE 99-65, SIDE B                                                                                                              
                                                                                                                                
Number 0047                                                                                                                     
                                                                                                                                
REPRESENTATIVE JAMES made a motion to adopt Amendment 1, which                                                                  
read:                                                                                                                           
                                                                                                                                
     Page 2, lines 2 - 3:                                                                                                       
          Delete "symptoms disclosed in the physician's                                                                         
     statement described in AS 17.37.010(c)"                                                                                    
          Insert "debilitating medical condition diagnosed by                                                                   
     the patient's physician"                                                                                                   
                                                                                                                                
     Page 4, lines 3 - 4:                                                                                                       
          Delete "and specifying the nature of the patient's                                                                    
     symptoms"                                                                                                                  
                                                                                                                                
CHAIRMAN KOTT asked whether there was any objection.  There being                                                               
none, Amendment 1 was adopted.                                                                                                  
                                                                                                                                
REPRESENTATIVE JAMES made a motion to adopt Amendment 2, which                                                                  
read:                                                                                                                           
                                                                                                                                
     Page 3, line 31, following "relationship":                                                                                 
          Insert "and setting out the date the examination                                                                      
     occurred"                                                                                                                  
                                                                                                                                
     Page 7, line 18, following "documentation":                                                                                
          Insert ", including a statement signed by the                                                                         
     patient's physician containing the information required                                                                    
     to be submitted under (c)(1) of this section,"                                                                             
                                                                                                                                
     Page 8, following line 10:                                                                                                 
          Insert a new subsection to read:                                                                                      
               "(r)  The department may not register a patient                                                                  
     under this section unless the statement of the patient's                                                                   
     physician discloses that the patient was personally                                                                        
     examined by the physician within the one-year period                                                                       
     immediately preceding the patient's application.  The                                                                      
     department shall cancel, suspend, revoke or not renew the                                                                  
     registration of a patient whose annual resubmission of                                                                     
     updated written documentation to the department under (k)                                                                  
     of this section does not disclose that the patient was                                                                     
     personally examined by the patient's physician within the                                                                  
     one-year period immediately preceding the date by which                                                                    
     the patient is required to annually resubmit written                                                                       
     documentation."                                                                                                            
                                                                                                                                
REPRESENTATIVE CROFT objected.                                                                                                  
                                                                                                                                
Number 0133                                                                                                                     
                                                                                                                                
MR. PAULEY informed the committee that originally HB 213 included                                                               
a stipulation that a patient applying to be listed on the registry                                                              
had to have provided a physician's statement saying he had been                                                                 
diagnosed with a debilitating medical condition and that medical                                                                
use of marijuana is indicated.  The requirement was that the                                                                    
physician's examination of the patient had to have occurred within                                                              
a three-month window prior to the date of application.  In the                                                                  
House Health, Education and Social Services Committee that                                                                      
three-month requirement was removed and which was partially in                                                                  
response to a concern expressed by DHSS.  The department thought                                                                
that could potentially create a hardship for patients in rural                                                                  
areas.  Theoretically, a patient could have one examination and                                                                 
never get examined again.  This amendment puts back in a                                                                        
requirement that a physician's examination has to occur within a                                                                
one-year period as well as an annual renewal requirement.                                                                       
                                                                                                                                
REPRESENTATIVE ROKEBERG asked whether the caregiver's card is                                                                   
annually reviewed.                                                                                                              
                                                                                                                                
MR. PAULEY answered the way it is written, the caregiver's card                                                                 
goes to the patient.                                                                                                            
                                                                                                                                
REPRESENTATIVE CROFT noted that patients with incurable diseases                                                                
don't need an annual exam to tell them that they still have the                                                                 
disease.  There are requirements in the bill that are both valid                                                                
and adequate and he didn't see any need for Amendment 2.                                                                        
                                                                                                                                
REPRESENTATIVE JAMES commented that people who are seriously ill                                                                
are going to the doctor all the time.                                                                                           
                                                                                                                                
REPRESENTATIVE KERTTULA pointed out that is accurate, but this is                                                               
intrusive.                                                                                                                      
                                                                                                                                
Number 0477                                                                                                                     
                                                                                                                                
MR. ZANGRI said the department's position is that the ill patient                                                               
will see the physician often enough in the year so that this will                                                               
not be burdensome in most cases.  The department is concerned that                                                              
the prior provision requiring a three-month exam is intrusive and                                                               
burdensome.  It may be burdensome in this case in the bush for                                                                  
people to actually see a physician once a year but if they are                                                                  
terminally ill we wouldn't have any problem with doctor contact and                                                             
a requirement for a personal physical examination.                                                                              
                                                                                                                                
REPRESENTATIVE KERTTULA commented that seems to be a harsh                                                                      
requirement.                                                                                                                    
                                                                                                                                
REPRESENTATIVE ROKEBERG noted this would not be workable in the                                                                 
rural areas with telemedicine.                                                                                                  
                                                                                                                                
REPRESENTATIVE JAMES asked whether in rural areas they have                                                                     
physician's assistants [PA] and nurse practitioners [NP].                                                                       
                                                                                                                                
MR. ZANGRI agreed with the concern in rural areas where the                                                                     
standard medical practice is a PA rather than a physician.                                                                      
However, there is a way around it in current statute if they                                                                    
continue to define physician as somebody who is licensed to                                                                     
practice medicine in the state because PAs and other secondary                                                                  
practitioners are indeed licensed to practice medicine.                                                                         
                                                                                                                                
REPRESENTATIVE JAMES said she doesn't have any problem with a PA or                                                             
NP making this decision because they work under the auspices of a                                                               
physician.  She would do anything to help the rural people not have                                                             
to make a trip to town to find a physician.                                                                                     
                                                                                                                                
0635                                                                                                                            
                                                                                                                                
REPRESENTATIVE CROFT indicated that the words "personally examined                                                              
by a physician" has a lot of unintended consequences.                                                                           
                                                                                                                                
REPRESENTATIVE JAMES suggested he reword it.                                                                                    
                                                                                                                                
REPRESENTATIVE CROFT said he believes it is worded correctly in the                                                             
bill itself.  It has two requirements:  "you update who you are and                                                             
you got to keep your condition going."  More attempts to                                                                        
straitjacket this, will result in more people with legitimate                                                                   
problems that have not been hypothesized here.  The straitjacket of                                                             
Amendment 2 is not necessary.                                                                                                   
                                                                                                                                
REPRESENTATIVE ROKEBERG noted that physician is defined in statute                                                              
and wondered if the department is correct in that a PA can become                                                               
an equivalent of a physician for the purposes of this legislation.                                                              
                                                                                                                                
Number 0717                                                                                                                     
                                                                                                                                
MR. ZANGRI explained that a physician is any person licensed to                                                                 
practice medicine.  A nurse practitioner and a physician's                                                                      
assistant are in fact licensed to practice medicine in the State of                                                             
Alaska.                                                                                                                         
                                                                                                                                
MR. PAULEY said the definition of physician is unchanged from the                                                               
initiative; it is not a new definition in HB 213.                                                                               
                                                                                                                                
The committee took an at-ease from 6:15 p.m. to 6:16 p.m.                                                                       
                                                                                                                                
Number 0775                                                                                                                     
                                                                                                                                
REPRESENTATIVE JAMES made a motion to delete lines 3 through 16 of                                                              
the amendment.                                                                                                                  
                                                                                                                                
REPRESENTATIVE CROFT said that Representative James correctly noted                                                             
that there is nothing wrong having the initial setting saying the                                                               
date the examination occurred.                                                                                                  
                                                                                                                                
REPRESENTATIVE JAMES noted there is another problem in the last                                                                 
paragraph because it is the only place where they will get the                                                                  
one-year period.  She said she would have to rethink that last                                                                  
paragraph.                                                                                                                      
                                                                                                                                
REPRESENTATIVE CROFT read from page 7, line 16 which reads:                                                                     
                                                                                                                                
     To maintain an effective registry identification card, a                                                                   
     patient must annually resubmit updated written                                                                             
     documentation to the department as well as the name and                                                                    
     address of the patient's primary caregiver or alternate                                                                    
     caregiver.                                                                                                                 
                                                                                                                                
REPRESENTATIVE CROFT noted they will report annually.  The question                                                             
is are they going to get in a weird situation when someone wasn't                                                               
personally seen by their physician within the last year.                                                                        
                                                                                                                                
REPRESENTATIVE MURKOWSKI asked whether they aren't still required                                                               
to do that in (c)(1)(a).                                                                                                        
                                                                                                                                
The Committee took an at-ease from 6:17 p.m. to 6:23 p.m.                                                                       
                                                                                                                                
REPRESENTATIVE JAMES made a motion to amend the amendment to just                                                               
delete lines 6 through 16.                                                                                                      
                                                                                                                                
REPRESENTATIVE CROFT said he would not have an objection to that                                                                
amendment to Amendment 2.                                                                                                       
                                                                                                                                
CHAIRMAN KOTT asked whether there was any objection.  There being                                                               
none, Amendment 2 as amended was adopted.                                                                                       
                                                                                                                                
Number 0905                                                                                                                     
                                                                                                                                
MR. PAULEY informed the committee that at the House HES meeting,                                                                
Mr. Finkelstein testified that this requirement that a primary                                                                  
caregiver could only care for relatives, if they are in the same                                                                
household could pose a burden to people  due to the way families                                                                
are structured these days.  This is just a simple amendment to                                                                  
delete that requirement and give more flexibility in that area.                                                                 
The Department of Law had no problem with it either.                                                                            
                                                                                                                                
Number 0935                                                                                                                     
                                                                                                                                
REPRESENTATIVE JAMES made a motion to move Amendment 3, which                                                                   
reads:                                                                                                                          
                                                                                                                                
     Page 5, lines 6 - 7:                                                                                                       
          Delete "reside in the same household as the caregiver                                                                 
     and"                                                                                                                       
                                                                                                                                
REPRESENTATIVE KERTTULA objected.  She asked what happens in a                                                                  
hospice situation.                                                                                                              
                                                                                                                                
REPRESENTATIVE JAMES explained that is covered in another                                                                       
amendment.                                                                                                                      
                                                                                                                                
CHAIRMAN KOTT asked whether there was any objection.  There being                                                               
none, Amendment 3 was adopted.                                                                                                  
                                                                                                                                
REPRESENTATIVE JAMES made a motion to adopt Amendment 4 which                                                                   
reads:                                                                                                                          
                                                                                                                                
     Page 1, line 14, through page 2, line 3:                                                                                   
          Delete all material.                                                                                                  
                                                                                                                                
     Renumber the following paragraphs accordingly.                                                                             
                                                                                                                                
     Page 2, lines 17 0 18:                                                                                                     
          Delete all material.                                                                                                  
                                                                                                                                
     Renumber the following paragraphs accordingly.                                                                             
                                                                                                                                
     Page 2, line 20:                                                                                                           
          Delete all material.                                                                                                  
                                                                                                                                
     Renumber the following paragraph accordingly.                                                                              
                                                                                                                                
MR. PAULEY explained that Amendment 4 attempts to address some                                                                  
testimony, from critics of the legislation in previous hearings,                                                                
that it is an unreasonable requirement that the defendant has to                                                                
prove that the total amount of marijuana in their possession was                                                                
not being used for a non-medical purpose.  It is the sponsor's view                                                             
that in the real world it doesn't get interpreted that way, and the                                                             
language is superfluous.  It is an affirmative defense portion.                                                                 
                                                                                                                                
REPRESENTATIVE CROFT wondered why the critics want to remove one                                                                
potential affirmative defense.  He also wondered why the definition                                                             
of debilitating medical condition as a reference and the definition                                                             
of the physician were deleted.                                                                                                  
                                                                                                                                
MR. PAULEY explained that the paragraph that is removed is the only                                                             
place in the section where those words are mentioned.  Therefore,                                                               
with the paragraph removed there is no reason to have the                                                                       
definitions there.  The definition still exists, those are just                                                                 
referential definitions that refer to the definitions in Section 7                                                              
beginning on page 12.  They are conforming amendments.  The                                                                     
deletion of the definitions doesn't have any substantive impact.                                                                
                                                                                                                                
MR. PAULEY commented that there has been a lot of testimony about                                                               
the burden of proof issue.  There is a statute under the controlled                                                             
substances act, Title 11, Chapter 71, Section 50 on burden of                                                                   
proof.  It doesn't apply to the initiative as it is currently                                                                   
worded because it took marijuana off the controlled substances                                                                  
list, but in AS 11.71.350 it says:  "It is not necessary for the                                                                
state to negate an exemption or exception provided for in this                                                                  
chapter in a complaint, information, indictment, or other pleading                                                              
or at a trial, hearing, or other proceeding under this chapter or                                                               
AS 17.30.  The defendant has the burden of proving by a                                                                         
preponderance of the evidence any exemption or exception claimed by                                                             
the defendant."  Legal services was asked if the affirmative                                                                    
defense requirement in HB 213 was the same allocation of the burden                                                             
of proof that would exist in any other controlled substance case as                                                             
the law reads.  Legal services replied yes.  The burden of proof                                                                
resides with the defendant as in any other similarly situated                                                                   
controlled substance case.                                                                                                      
                                                                                                                                
REPRESENTATIVE KERTTULA asked if that is why there is a new Section                                                             
4, page 8, lines 11-15 as well with the affirmative defense                                                                     
language.                                                                                                                       
                                                                                                                                
MR. PAULEY replied that is correct.                                                                                             
                                                                                                                                
REPRESENTATIVE KERTTULA said in a regular drug prosecution,                                                                     
possession must be proven beyond a reasonable doubt; there doesn't                                                              
have to be any affirmative defense to that.  They could have an                                                                 
affirmative defense, but they are not just agreeing that the burden                                                             
of proof rests with the prosecution on proving possession in a                                                                  
normal drug case.                                                                                                               
                                                                                                                                
MR. PAULEY passed out a copy of the memorandum from legal services                                                              
which covered this issue.  The question to legal services was:                                                                  
                                                                                                                                
     Is this language consistent with the 'affirmative                                                                          
     defense' approach in Section 1 of CS for SSSB 94, [or in                                                                   
     this case HB 213,].  Is it accurate to state that the                                                                      
     burden of proof in SSSB 94 [or HB 213] is no different                                                                     
     than what is required in existing law for any other                                                                        
     defendant who is charged with misusing a prescription                                                                      
     drug?  Answer:  Yes.  For example, this section basically                                                                  
     means that the state as part of its case does not have to                                                                  
     disprove that a person did not have a prescription for a                                                                   
     controlled substance that a person possessed - the person                                                                  
     has the burden to prove that their possession was lawful                                                                   
     as they were the lawful ultimate user of the controlled                                                                    
     substance by a prescription.  The affirmative defense is                                                                   
     consistent with this approach.                                                                                             
                                                                                                                                
REPRESENTATIVE KERTTULA indicated that there are two questions                                                                  
there.  "If you want an affirmative defense of a prescription and                                                               
you want an affirmative defense to come back, that is right.  The                                                               
question and the answer are right.  But it is the original burden                                                               
of proof you don't want to screw up of even possessing.  What if                                                                
you say I didn't have the marijuana?  That burden of proof rests                                                                
with the prosecution."  She wondered if they kept that burden of                                                                
proof in the right way.  That is critical and they don't want to                                                                
mess around with that.                                                                                                          
                                                                                                                                
REPRESENTATIVE CROFT stated that isn't relevant to Amendment 4.  It                                                             
is to another amendment that has to do with switching between an                                                                
affirmative defense to defense.                                                                                                 
                                                                                                                                
MR. PAULEY agreed; strictly speaking it isn't relevant.  He brought                                                             
it up because he felt it would add something to the discussion, but                                                             
it isn't an issue that needs to be resolved in order for the                                                                    
committee to act on this.                                                                                                       
                                                                                                                                
REPRESENTATIVE CROFT asked whether they need Amendment 4; and, if                                                               
so, why?                                                                                                                        
                                                                                                                                
MR. PAULEY explained that Amendment 4 grew out of complaints about                                                              
that particular paragraph of the bill.  Upon review of that                                                                     
language, it was realized it was not necessary.                                                                                 
                                                                                                                                
CHAIRMAN KOTT said the short answer is no.                                                                                      
                                                                                                                                
Number 1523                                                                                                                     
                                                                                                                                
REPRESENTATIVE JAMES withdrew Amendment 4.                                                                                      
                                                                                                                                
MR. FINKELSTEIN told the committee that this amendment came out of                                                              
Senator Leman's office to accommodate the concerns of patients.                                                                 
The patient who is trying to get the affirmative offense has to                                                                 
prove all of these points so if there is one point off the list, it                                                             
is one less thing they have to prove.  He believed it is                                                                        
significant because how could it ever be proven that the entire                                                                 
amount of marijuana in their possession is more than for medical                                                                
use for the patient alone.  There is no ability to prove that.  Mr.                                                             
Guaneli from the Department of Law agreed that it is unnecessary.                                                               
                                                                                                                                
REPRESENTATIVE JAMES made a motion to adopt Amendment 4.  There                                                                 
being no objection, it was so adopted.                                                                                          
                                                                                                                                
REPRESENTATIVE ROKEBERG made a motion to adjourn.  There being no                                                               
objection, it was so ordered.                                                                                                   
                                                                                                                                
ADJOURNMENT                                                                                                                     
                                                                                                                                
Number 1634                                                                                                                     
                                                                                                                                
CHAIRMAN KOTT adjourned the House Judiciary Standing Committee                                                                  
meeting at 6:37 p.m.                                                                                                            

Document Name Date/Time Subjects