03/17/2010 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB386 | |
| HB287 | |
| HB409 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 287 | TELECONFERENCED | |
| + | HB 409 | TELECONFERENCED | |
| *+ | HB 386 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 17, 2010
1:08 p.m.
MEMBERS PRESENT
Representative Jay Ramras, Chair
Representative Nancy Dahlstrom, Vice Chair
Representative Carl Gatto
Representative Bob Herron
Representative Bob Lynn
Representative Max Gruenberg
Representative Lindsey Holmes
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 386
"An Act establishing a uniform format and procedure for
citations for certain violations of state law; relating to the
form, issuance, and disposition of citations for certain
violations; relating to certain crimes and penalties for
noncompliance with citations; and providing for an effective
date."
- MOVED CSHB 386(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 287
"An Act relating to the adoption of the Uniform Disclaimer of
Property Interests Act, and to the disclaimer of property rights
under the Uniform Probate Code."
- MOVED CSHB 287(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 409
"An Act relating to state election campaigns, the duties of the
Alaska Public Offices Commission, the reporting and disclosure
of expenditures and independent expenditures, the filing of
reports, and the identification of certain communications in
state election campaigns; and providing for an effective date."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 386
SHORT TITLE: CITATIONS
SPONSOR(S): REPRESENTATIVE(S) HAWKER
02/23/10 (H) READ THE FIRST TIME - REFERRALS
02/23/10 (H) JUD, FIN
03/17/10 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 287
SHORT TITLE: UNIFORM ACT: PROPERTY INTEREST DISCLAIMER
SPONSOR(S): REPRESENTATIVE(S) RAMRAS, GRUENBERG
01/15/10 (H) PREFILE RELEASED 1/15/10
01/19/10 (H) READ THE FIRST TIME - REFERRALS
01/19/10 (H) L&C, JUD
03/01/10 (H) L&C AT 3:15 PM BARNES 124
03/01/10 (H) Moved Out of Committee
03/01/10 (H) MINUTE(L&C)
03/04/10 (H) L&C RPT 1DP 4NR
03/04/10 (H) DP: LYNN
03/04/10 (H) NR: BUCH, CHENAULT, T.WILSON, OLSON
03/11/10 (H) JUD AT 1:00 PM CAPITOL 120
03/11/10 (H) <Bill Hearing Canceled>
03/17/10 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 409
SHORT TITLE: CAMPAIGN EXPENDITURES
SPONSOR(S): STATE AFFAIRS
02/26/10 (H) READ THE FIRST TIME - REFERRALS
02/26/10 (H) STA, JUD
03/02/10 (H) STA AT 8:00 AM CAPITOL 106
03/02/10 (H) Heard & Held
03/02/10 (H) MINUTE(STA)
03/09/10 (H) STA AT 8:00 AM CAPITOL 106
03/09/10 (H) Moved CSHB 409(STA) Out of Committee
03/09/10 (H) MINUTE(STA)
03/12/10 (H) STA RPT CS(STA) NT 4DP 3AM
03/12/10 (H) DP: SEATON, GRUENBERG, PETERSEN, LYNN
03/12/10 (H) AM: JOHNSON, GATTO, P.WILSON
03/12/10 (H) FIN REFERRAL ADDED AFTER JUD
03/17/10 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
REPRESENTATIVE MIKE HAWKER
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Spoke as the sponsor of HB 386.
JULI LUCKY, Staff
Representative Mike Hawker
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 386 on behalf of the sponsor,
Representative Hawker.
KATHERINE PETERSON, Lieutenant
Alaska State Troopers
Support Services
Department of Public Safety
Anchorage, Alaska
POSITION STATEMENT: During hearing of HB 386, answered
questions.
DAVID BROWER, Assistant Attorney General
Legal Services Section
Criminal Division
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: During hearing of HB 386, answered
questions.
RODNEY DIAL, Lieutenant/Deputy Commander
A Detachment
Division of Alaska State Troopers
Department of Public Safety
Ketchikan, Alaska
POSITION STATEMENT: During hearing of HB 386, answered
questions.
MIKE SICA, Staff
Representative Bob Lynn
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: As staff to the House State Affairs
Standing Committee, sponsor, presented HB 409.
DON ETHERIDGE, Lobbyist
Alaska AFL-CIO
Juneau, Alaska
POSITION STATEMENT: Testified that although the AFL-CIO is
supportive of full disclosure, it has concerns with potential
amendments to HB 409.
ALPHEUS BULLARD, Attorney
Legislative Legal Services Division
Legislative Affairs Agency
Juneau, Alaska
POSITION STATEMENT: Provided clarification regarding the
disclaimer provisions of CSHB 409(STA).
HOLLY HILL, Executive Director
Alaska Public Offices Commission (APOC)
Anchorage, Alaska
POSITION STATEMENT: During hearing of HB 409, pointed out that
2 AAC 50.306 addresses "clearly identified".
JOHN PTACIN, Assistant Attorney General
Labor and State Affairs Section
Department of Law
Anchorage, Alaska
POSITION STATEMENT: Expressed concerns with CSHB 409(STA).
BARBARA HUFF TUCKNESS, Director
Governmental & Legislative Affairs
Teamsters Local 959
Anchorage, Alaska
POSITION STATEMENT: Testified in support CSHB 409(STA).
ACTION NARRATIVE
1:08:26 PM
CHAIR JAY RAMRAS called the House Judiciary Standing Committee
meeting to order at 1:08 p.m. Representatives Ramras, Gatto,
Gruenberg, and Herron were present at the call to order.
Representatives Lynn, Holmes, and Dahlstrom arrived as the
meeting was in progress.
HB 386 - CITATIONS
1:08:43 PM
CHAIR RAMRAS announced that the first order of business would be
HOUSE BILL NO. 386, "An Act establishing a uniform format and
procedure for citations for certain violations of state law;
relating to the form, issuance, and disposition of citations for
certain violations; relating to certain crimes and penalties for
noncompliance with citations; and providing for an effective
date."
1:08:59 PM
REPRESENTATIVE MIKE HAWKER, Alaska State Legislature, informed
the committee that HB 386, the "Ticket Simplification Act," was
crafted largely with the assistance and insistence of the
Department of Public Safety (DPS). This legislation, he
explained, provides DPS the authority to prescribe a uniform
citation format and process for moving citations forward. The
intent is to have much greater efficiency with the necessary
paperwork for the state's justice system and facilitate the
utilization of electronic records for which consistent format is
essential for processing.
1:11:30 PM
JULI LUCKY, Staff, Representative Mike Hawker, Alaska State
Legislature, relayed on behalf of the sponsor, Representative
Hawker, that the legislation has a lot of redundant language
throughout the 63 sections of HB 386. She directed the
committee's attention to a document entitled "HB 386 Uniform
Citations - Overview." She explained that Sections 21-31 of HB
386 encompass the uniform citation process and format. The
aforementioned sections outline the format of each citation,
clarify when an officer can issue a citation versus making an
arrest, and set standard and consistent deadlines for delivery
of citations to the court, answering citations when not required
to go to court, and what must be done with scheduled offenses.
Scheduled offenses are offenses for which one doesn't have to go
to court and for which there is a specific fine or bail
associated with the offense. These sections also outline
recordkeeping processes and have a consistent penalty for
failure to pay a fine or appear in court. Ms. Lucky noted that
the legislation is long because the various deadlines are
located in the [corresponding] statute. This legislation
consolidates those deadlines in this statute and references the
individual statutes to AS 12.25.175-12.25.230.
REPRESENTATIVE HOLMES recalled that the sponsor statement
relates the goal of allowing more fines to be paid through the
courts' online e-payment system. However, the language in the
legislation refers to mailing or personally delivering the fines
to the clerk of the court. She asked whether the language in HB
386 would allow payment online.
MS. LUCKY offered her understanding that since the language to
which Representative Holmes referred to is exists, it would
allow fines to be paid online. However, she suggested that
perhaps DPS staff could answer as she isn't familiar with the
process of payment.
1:14:58 PM
KATHERINE PETERSON, Lieutenant, Alaska State Troopers, Support
Services, Department of Public Safety, in response to
Representative Holmes, answered that citizens are already
allowed to pay fines online under the existing statutory
language that HB 386 uses. She added that the language of HB
386 allows the electronic transfer of information to the courts
in a more timely fashion. The aforementioned allows payment
online in a quicker and easier fashion. Currently, even if a
court is set up to allow online payments, there is delay because
the court hasn't received the citation or entered the citation
into its system.
REPRESENTATIVE HOLMES surmised then that the language she
referenced is used in statute and should allow online e-payments
without amending HB 386.
LIEUTENANT PETERSON confirmed that to be correct.
REPRESENTATIVE GATTO, referring to the language on page 7, asked
how the language "shall accept" the citation would be enforced.
1:17:05 PM
DAVID BROWER, Assistant Attorney General, Legal Services
Section, Criminal Division, Department of Law (DOL), noted that
he helped draft HB 386. He explained that he didn't believe
that the proposed language change would matter because the same
individuals who won't accept the citation can't be forced to
sign the citation. He said he thought the language would
streamline the process as the [intent] of the legislation is to
make things occur quicker without signing. The language, he
explained further, would eliminate the necessity of having
certain offenses for which one has to sign and certain offenses
for which one doesn't have to sign. He noted that in another
section the language may allow the person [refusing the
citation] to be arrested.
REPRESENTATIVE GATTO surmised then that the final authority is
with the arresting officer who serves the citation. He said he
wasn't clear that the language of HB 386 says that those who
refuse the citation can be arrested.
MR. BROWER said that's already in Title 12. There are certain
offenses for which an officer doesn't have the authority to
arrest unless the individual refuses to identify himself/herself
or (indisc.). In further response to Representative Gatto, Mr.
Brower pointed out that if an officer is going to issue a
citation the officer has to have probable cause to believe the
offense occurred, which is the same with a driving under the
influence (DUI) charge. The officer, in a situation in which a
potential DUI offender refused the field sobriety tests, would
have to have enough articulable reasons to probable cause to
arrest without the field sobriety tests.
1:21:08 PM
REPRESENTATIVE HOLMES inquired as to the reasoning for replacing
the deleted language on page 6, lines 10-11, with "reasonably
believes".
MR. BROWER answered that the language change doesn't have any
practical difference. He opined that the deleted language, "has
reasonable and probable cause to believe", is redundant.
Probable cause is the language used when an officer makes a
determination to arrest someone for a particular crime; the
elements of the crime have to be met. In this case, [the
elements of the crime] are whether the individual is dangerous
or has committed a particular crime and there is already
probable cause for that crime. He said that the primary concern
of the officer at the time is whether the individual is a danger
to himself/herself or others.
REPRESENTATIVE GRUENBERG pointed out that the language on page
3, lines 13-14, which is new language, is essentially the same
as the language on page 3, lines 6-7. He asked whether a peace
officer with probable cause who boards a boat has the right to
search without a warrant for things in plain view.
MR. BROWER suggested that if the items are in plain view, then
the officer isn't searching.
REPRESENTATIVE GRUENBERG clarified then whether in such a
situation the office could seize items without a warrant.
MR. BROWER offered his belief that if the items are contraband,
the officer already has the right to seize the items. He
clarified that although the section has been repealed and
reenacted, the officer still has to have probable cause of a
violation prior to boarding the boat. The aforementioned, he
pointed out, isn't new. Certainly, if the officer is aboard the
boat and sees contraband in plain sight, the officer would be
able to seize it.
REPRESENTATIVE GRUENBERG related his understanding that per
Section 8, the officer will be able to board the craft simply
because the officer has probable cause to believe the violation
has occurred. He related his assumption that some of those
violations wouldn't necessarily have given the officer probable
cause to board the watercraft. Representative Gruenberg
expressed concern that the officer would be able to board the
watercraft and then things that wouldn't have otherwise been in
plain view would be in plain view and could be seized without a
search warrant.
REPRESENTATIVE GRUENBERG asked if under the current law and the
proposed law whether an officer would be able to seize things
that would be in view once the officer can legally board the
vessel. Therefore, would that allow the officer, under the
plain view doctrine, to seize items he/she couldn't have
otherwise seized without a warrant, he asked.
MR. BROWER offered his understanding that Section 8 doesn't
change existing law.
MS. LUCKY surmised that Representative Gruenberg's question is
whether, under current law, officers can board and seize.
REPRESENTATIVE GRUENBERG expressed concern that Section 8 would
give the officer a legal reason to board where none existed
before and without reference to probable cause. He offered to
obtain information on this matter from Legislative Legal
Services.
1:27:57 PM
REPRESENTATIVE GRUENBERG asked if the deleted language, "be in
writing" in Section 14, is a requirement that's found elsewhere
in HB 386.
MR. BROWER remarked that he couldn't conceive of a citation that
isn't in writing.
REPRESENTATIVE GRUENBERG asked whether, in AS 12.25.175-
12.25.230 there is a requirement that a citation be in writing.
If there isn't, then he opined that somewhere [statute] should
specify that citations must be in writing.
MR. BROWER remarked that a citation must contain certain things,
which would necessarily be in writing.
REPRESENTATIVE GRUENBERG requested that he be directed to the
page and line of such a requirement.
REPRESENTATIVE GRUENBERG referred to the language on page 4,
line 5, which is elsewhere in the legislation. The language
requires the department to deposit the citation and a copy with
the court on or before the 10th working day after the citation's
issuance. Representative Gruenberg expressed the desire that it
wouldn't be grounds for a motion for dismissal if the
aforementioned fails to be done in a timely fashion.
MS. LUCKY directed Representative Gruenberg to page 9, lines 21-
22.
MR. BROWER pointed out that the language on page 6, lines 30-31,
specifies that "the officer shall prepare a written citation and
issue it to the person".
1:31:17 PM
REPRESENTATIVE GATTO pointed out that on page 6, lines 10-11,
the language "has reasonable and probable cause to believe" has
been replaced with "reasonably believes". However, throughout
the legislation the language "probable cause" is used. He
questioned whether the language should be consistent throughout.
MR. BROWER explained that in any crime probable cause means that
the officer has probable cause to believe that every element has
occurred. Therefore, the language "probable cause" didn't seem
to fit the provision that addresses a situation in which the
officer believes the person is dangerous because there are no
elements.
REPRESENTATIVE HERRON, returning to the discussion of Section 14
and the deletion of the language "be in writing", related that
he reviewed the statute reference to AS 12.25.175-12.25.230 and
surmised that "written citation" means the same as "be in
writing".
MR. BROWER replied yes.
REPRESENTATIVE GRUENBERG opined that in Section 24 the language
", as repealed and reenacted by sec. 26, ch. 28, SLA 2000, and
by sec. 41, ch. 12, SLA 2006," could be deleted. He suggested
that such technical language could be deleted throughout the
legislation.
MS. LUCKY informed the committee that such language is found in
Sections 8 and 24. She then explained that the language is part
of the Boating Safety Act, which will be repealed and is why
there are two duplicative sections. Therefore, the Session Laws
of Alaska (SLA) must be edited because when sunsets occur the
previous statute takes the place of the new statute. In further
explanation, Ms. Lucky pointed out that Sections 8 and 24 have
different effective dates because they're conditional upon the
eventual sunset of the Boating Safety Act. If the Boating
Safety Act never sunsets, Sections 8 and 24 will never come into
play.
1:35:15 PM
REPRESENTATIVE GRUENBERG, referring to Section 21 on page 5,
expressed his desire that the citation form should be required
to be done by regulation under the Administrative Procedure Act
(APA). However, the language on page 5, line 30, uses the
language "may" rather than "shall". Without such a change, the
commissioner could simply decide to adopt standards and not do
it through regulation. He explained that the aforementioned
change would clarify that the form of the regulations must go
through the regular notice and public comment procedure for
adoption of regulations under APA.
MR. BROWER noted his agreement with Representative Gruenberg,
but added that he had no doubt that the DPS commissioner would
adopt regulations, which would be pursuant to AS 44.62. Since
citations affect the general public it will have to be a
regulation.
CHAIR RAMRAS surmised this had to do with migrating to an
electronic citation form. He inquired as to Lieutenant Dial's
thoughts regarding whether the language on page 5, line 30,
should be "may" or "shall".
1:37:26 PM
RODNEY DIAL, Lieutenant/Deputy Commander, A Detachment, Division
of Alaska State Troopers, Department of Public Safety, related
that at this time the department would prefer "may". However,
he said that the department wouldn't oppose changing the
language to "shall" because he believes the department would
adopt regulations anyway.
REPRESENTATIVE GRUENBERG opined that it's extremely important to
provide the opportunity for public comment on the form of the
regulations.
LIEUTENANT DIAL responded that he didn't see any reason why the
department wouldn't accept that proposed change.
CHAIR RAMRAS interjected that he prefers "may".
1:38:25 PM
REPRESENTATIVE HERRON asked if there is any other provision,
beyond that in Section 22, that replaces the language "has
reasonable and probable cause to believe" with "reasonably
believes".
MR. BROWER said that he would have to research that issue
further, but noted that something similar is in Title 47 for
mental commitments.
REPRESENTATIVE HERRON expressed concern and opined that he's not
convinced that [the proposed language] is the appropriate
approach.
REPRESENTATIVE GATTO, returning to the language on page 5, line
30, asked if the DPS commissioner, as a matter of course,
regularly adopts regulations under AS 44.62. If not, is there
an alternative, he asked.
MR. BROWER informed the committee that any commissioner,
commission, or board that adopts regulations does so under Title
44. He then pointed out that Section 21(b) says "The
commissioner of public safety shall provide or prescribe
citation forms for use by peace officers and other persons who
are authorized by law to issue citations." Currently, the
things required to be included in a citation are in statute in
court rule and DPS currently has a uniform citation that it uses
and is used by some other police agencies in the state. Mr.
Brower said that at this point he didn't know whether the
commissioner of DPS has adopted regulations regarding citations,
but reiterated that any regulations are adopted under AS 44.62.
REPRESENTATIVE GATTO asked if using "shall" would be a hindrance
such that there may be regulations that ought to be established
outside of AS 44.62.
MR. BROWER pointed out that Section 48 amends AS 44.41.020 such
that DPS "shall establish by regulation standardized forms for
citations ..." while under Section 21 similar language uses the
term "may".
REPRESENTATIVE GRUENBERG related his understanding that Section
21 only relates to the forms of the citation. He asked if
that's correct.
MS. LUCKY answered that she interpreted it that way as well.
REPRESENTATIVE GRUENBERG surmised, then, that Section 21(c)
might be read in conflict with Section 48. Since it's the
intent to require regulations under Section 48, he opined that
the "may" language on page 5, line 30, should be changed to
"shall" so as to avoid any conflict.
MS. LUCKY stated that she supported such a change.
CHAIR RAMRAS, upon determining no one else wished to testify,
closed public testimony.
1:44:30 PM
CHAIR RAMRAS made a motion to adopt Amendment 1, which read
[original punctuation provided]:
Page 2, lines 14, following "section.":
DELETE "The citation is considered a summons for a
failure to obey a citation under AS 12.25.230, and the
court may issue a bench warrant."
Page 2 line 29, through page 3, line 2: DELETE ALL
MATERIAL AND INSERT:
"* Sec. 6. AS 04.21.065(j) is repealed and reenacted
to read:
(j) A person cited under this section is guilty of
failure to obey a citation under AS 12.25.230 if the
person fails to pay the bail amount established under
(g) of this section or to appear in court as
required."
Page 10, following line 13
INSERT a new bill section to read:
"* Sec. 32. AS 16.05.165 (a) is amended to read:
(a) When a peace officer stops or contacts a person
concerning a violation of this title except AS 16.51
and AS 16.52 or of a regulation adopted under this
title except AS 16.51 and AS 16.52 that is a
misdemeanor, the peace officer may, in the officer's
discretion, issue a citation to the person as provided
in AS 12.25.175 - 12.25.230 [AS 12.25.180] .
RENUMBER following sections accordingly
Page 10, line 26 following "required."
DELETE "The citation is considered a summons for
failure to obey a citation under AS 12.25.230, and the
court may issue a bench warrant."
REPRESENTATIVE HOLMES objected for the purpose of discussion.
MS. LUCKY explained that Amendment 1 is basically clean up.
Amendment 1 inserts citations that were omitted and omits the
language "The citation is considered a summons for a failure to
obey a citation under AS 12.25.230, and the court may issue a
bench warrant." He requested that Mr. Brower speak to the
aforementioned language being deleted by Amendment 1.
1:45:30 PM
MR. BROWER explained that numerous existing statutes indicate
that an individual who was cited into court to either pay a fine
or attend court and did neither, the citation would be
considered a summons for a misdemeanor. However, he opined that
the language was meaningless. If the original citation was for
a violation, it couldn't revert to a misdemeanor. It's clear
that failure to obey a citation is a violation of AS 12.25.230,
he stated.
MS. LUCKY, in response to Representative Gruenberg, clarified
that the document [entitled "Amendments to HB 386 (26-LS1525\A)]
merely describes Amendment 1.
REPRESENTATIVE HOLMES withdrew her objection.
There being no further objection, Amendment 1 was adopted.
1:47:00 PM
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 2, as
follows:
Page 5, line 30;
Delete "may"
Insert "shall"
REPRESENTATIVE DAHLSTROM objected for discussion.
CHAIR RAMRAS then announced that without objection Amendment 2
was adopted.
1:47:30 PM
REPRESENTATIVE DAHLSTROM moved to report HB 386, as amended, out
of committee with individual recommendations and the
accompanying fiscal notes.
REPRESENTATIVE HERRON objected, and reiterated concern that the
change on page 6, lines 10-11, could be utilized elsewhere. He
then removed his objection.
There being no further objection, CSHB 386(JUD) was reported
from the House Judiciary Standing Committee.
The committee took an at-ease from 1:48 p.m. to 1:50 p.m.
HB 287 - UNIFORM ACT: PROPERTY INTEREST DISCLAIMER
1:50:25 PM
CHAIR RAMRAS announced that the next order of business would be
HOUSE BILL NO. 287, "An Act relating to the adoption of the
Uniform Disclaimer of Property Interests Act, and to the
disclaimer of property rights under the Uniform Probate Code."
CHAIR RAMRAS moved to adopt the proposed committee substitute
(CS) for HB 287, Version 26-LS1300\E, Bannister, 3/17/10, as the
working document. There being no objection, Version E was
before the committee.
1:50:54 PM
REPRESENTATIVE GRUENBERG, speaking as a joint prime sponsor,
explained that HB 287 addresses one discrete issue of estate
planning in which a person who is given an estate asset in a
will or trust may wish to skip (indisc.) so it's not taxed
twice. The aforementioned would save a lot of money in estate
taxes. Currently, there is one section of the Uniform Probate
Code that addresses the aforementioned, but it has become more
complicated and sophisticated since its adoption in the early
1970s. Therefore, the commissioners on uniform state laws have
updated it and enacted an entire act on this matter. This
legislation, HB 287, adopts that uniform act, after being
"Alaskanized" by trust attorneys [in the state]. He reminded
the committee that when former Representative Gabrielle LeDoux
introduced legislation addressing this matter a few years ago,
he was concerned because it didn't address back child support.
The legislation before the committee today includes a provision
by which one can't escape paying back child support. He related
that after recent discussions, one of the Alaska provisions was
removed from the legislation and one of the uniform provisions
was reinserted. He said he hadn't heard of any objection to it.
CHAIR RAMRAS, upon determining no one wished to testify, closed
public testimony.
1:54:53 PM
REPRESENTATIVE DAHLSTROM moved to report the proposed committee
substitute (CS) for HB 287, Version 26-LS1300\E, Bannister,
3/17/10, out of committee with individual recommendations and
the accompanying fiscal notes. There being no objection, CSHB
287(JUD) was reported from the House Judiciary Standing
Committee.
The committee took an at-ease from 1:55 p.m. to 1:57 p.m.
HB 409 - CAMPAIGN EXPENDITURES
1:57:20 PM
CHAIR RAMRAS announced that the final order of business would be
HOUSE BILL NO. 409, "An Act relating to state election
campaigns, the duties of the Alaska Public Offices Commission,
the reporting and disclosure of expenditures and independent
expenditures, the filing of reports, and the identification of
certain communications in state election campaigns; and
providing for an effective date." [Before the committee was
CSHB 409(STA).]
REPRESENTATIVE LYNN, speaking as the chair of the House State
Affairs Standing Committee, sponsor of HB 409, explained that
CSHB 409(STA) is intended to address the U.S. Supreme Court
decision on Citizens United. The legislation isn't about the
decision itself, but rather about letting constituents
throughout the state know who contributes and makes expenditures
in corporations and unions. He explained that the Citizens
United decision basically established corporations and unions as
persons and thus they can contribute and make individual
expenditures as would individual candidates so long as that
independent decision isn't coordinated with a candidate or an
entity putting together an initiative. Representative Lynn
expressed concern about foreign nationals who are part of the
decision-making process in terms of [the candidates] and/or
initiatives they will support or oppose. Language in HB 409
addresses some of those concerns. Representative Lynn pointed
out that with elections around the corner time is of the essence
with this legislation.
2:00:22 PM
MIKE SICA, Staff, Representative Bob Lynn, Alaska State
Legislature, speaking as staff to the House State Affairs
Standing Committee, sponsor, informed the committee that Alaska
is one of twenty-four states developing disclosure and
disclaimer laws regarding independent expenses by corporations,
labor unions, and limited liability companies (LLCs). He
explained that in many of the sections of HB 409, the
legislation specifies a definition of "person" that includes
"corporations, companies, partnership, firm, associations,
organizations, business trust society, natural person, union".
He pointed out that Section 4, the disclosure section, and
Section 11, the disclaimer section, are the [major focus] of HB
409. Mr. Sica then turned to the aforementioned U.S. Supreme
Court ruling in which it specifies that the federal government
can still prohibit foreign nationals from being involved in
federal and state election campaigns through independent
expenditures. The legislation before the committee addresses
that matter in HB 409 by condensing the federal law while
basically accomplishing what the ruling requires. He related
his belief that any federal preemption problems with the federal
government are addressed by placing in state code the language
of the federal law.
MR. SICA then highlighted various changes made in the prior
committee. On page 5, Section 10 originally included the
ability to make anonymous expenditures in certain restricted
circumstances. However, the aforementioned was deleted in CSHB
409(STA). He pointed out that the language on page 6, Section
11(a)(2)(D) requires that corporations, unions, and LLCs that
utilize an audio and video component of their campaign or
independent expenditure advertisement clearly identify the name
and city and state of residence of the top three contributors.
He noted that requirements surrounding communications continues
in Section 12, on page 7, of CSHB 409(STA).
CHAIR RAMRAS inquired as to whether the term ["easily
discernable"] is in existing law. He also inquired as to its
definition, noting that the "paid for" portion of an
advertisement can be done very quickly.
MR. SICA stated that the term is being added.
REPRESENTATIVE LYNN offered his understanding that the term
means a person of normal hearing can understand what's being
said.
CHAIR RAMRAS questioned how quickly someone can speak and remain
[easily discernable].
REPRESENTATIVE GATTO questioned whether [easily discernable]
refers to an unaltered voice speed.
2:08:16 PM
REPRESENTATIVE GRUENBERG concurred with Representative Gatto
that [the term should refer to an unaltered voice speed] such
that it should be heard and understood. Representative
Gruenberg noted that this term was added by an amendment he
proposed. He then pointed out that on page 7, line 16,
following "The" the term "three" should be inserted as that was
part of the amendment adopted in the House State Affairs
Standing Committee.
MR. SICA directed the committee's attention to the language on
page 7, lines 8-9, which refers to Section 11(a)(2)(D) on page
6. The language in Section 11(a)(2)(D) on page 6, lines 20-21,
specify that it's the "three largest contributors".
REPRESENTATIVE GRUENBERG acknowledged that point.
CHAIR RAMRAS asked if in a television commercial, the top three
contributors have to be communicated via audio and video or just
in print on the screen.
MR. SICA offered his understanding that in a television
commercial the top three contributors would have to be
communicated via audio and [print on the screen]. This
requirement would allow a hearing impaired individual to see the
list and a visually impaired individual to hear the list.
CHAIR RAMRAS questioned why there's suddenly a requirement to
relate the information via audio, when that hasn't been the
practice in the past. He expressed concern that it's a "knee
jerk reaction" to the U.S. Supreme Court ruling. He said that
he doesn't like "knee jerk legislation."
MR. SICA opined that it is drawn from the U.S. Supreme Court
decision, which he further opined seems to provide people as
much information as possible to make the best decisions
possible.
2:11:26 PM
REPRESENTATIVE LYNN reminded the committee that this legislation
addresses the elective process, not selling items. He said he
doesn't believe trying to protect [and inform] voters is a "knee
jerk reaction"; it's important to know who is making
expenditures for or against a candidate or an issue.
CHAIR RAMRAS pointed out that candidates in the last election
cycle who had a television advertisement didn't have to say who
paid for the advertisement, while those with radio
advertisements were required to say who had paid for the
advertisement. He asked if Representative Lynn believes voters
haven't been aware who paid for advertisements in the past.
REPRESENTATIVE LYNN indicated that he was amenable to an
amendment to change that proposed requirement.
REPRESENTATIVE DAHLSTROM asked if Representative Lynn would want
an individual running for office to disclose the top three
donors in even a 30 second advertisement.
REPRESENTATIVE GRUENBERG said that he brought forth the
amendment that inserted the provisions requiring the top three
contributors be listed in order to aid two classes of people:
the visually impaired and individuals who merely listen to the
television without watching it. In further response to
Representative Dahlstrom, Representative Gruenberg said that he
hadn't thought of addressing it prior. He noted that the timing
for listing the three names has amounted to eight seconds.
Representative Gruenberg then highlighted that under federal
law, advertisements for drugs must auditorily state all the
potential side effects, which takes much longer than eight
seconds. The aforementioned is required because people feel
it's important, which he said he believes is also the case for
elections.
MR. SICA interjected that the language "easily discernable" is
already in the code. He then directed the committee's attention
to page 8, lines 25-26, which is from where the language "easily
discernable" came.
REPRESENTATIVE DAHLSTROM expressed concern with the lack of a
legal definition for "easily discernable" and the possibility
that it could lead to litigation. Although Representative
Dahlstrom related that she's supportive of full disclosure, she
pointed out that Alaska consists of various levels of education,
various cultures, and various languages.
2:16:46 PM
DON ETHERIDGE, Lobbyist, Alaska AFL-CIO, related that the Alaska
AFL-CIO is supportive of full disclosure. However, he expressed
concern that a forthcoming amendment is cumbersome for
organizations to fulfill the [requirement]. He informed the
committee that some of the [AFL-CIO] organizations have over
8,000 members scattered throughout the state, [all of] which
would have to be notified prior to collecting or making
expenditures. Currently, under law any of the membership of the
[AFL-CIO] can opt out of any political action contributions or
funds from their union dues being spent for political action,
which was the result of the Beck decision.
REPRESENTATIVE GATTO asked if Mr. Etheridge is referring to a
political action committee (PAC).
MR. ETHERIDGE confirmed that PACs are what [the AFL-CIO] uses
for political actions.
REPRESENTATIVE GATTO pointed out that the U.S. Supreme Court
decision says that dues, not just PAC contributions, can be
contributed. He further pointed out that those who contribute
to PACs know that the funds are being [contributed to a
political campaign or issue], while those who pay dues don't
know whether dues funds are being used to contribute to a
political campaign or issue. Therefore, it's important, he
opined, to notify the dues payor.
MR. ETHERIDGE noted his agreement that the member who pays dues
has a right to know, but the language regarding "contributions"
is of concern because it would apply to PACs.
REPRESENTATIVE GATTO opined that the legislation isn't
addressing PACs. However, he emphasized that currently there is
no law regarding knowledge of how the dues are spent.
MR. ETHERIDGE stated that the Alaska AFL-CIO doesn't have a
problem with the legislation, but is concerned with a potential
amendment that would extend this disclosure to any membership
contributions, dues, or fees and the PACs are contributions.
2:22:01 PM
ALPHEUS BULLARD, Attorney, Legislative Legal Services Division,
Legislative Affairs Agency, offered to provide clarification
regarding the disclaimer provisions of CSHB 409(STA), proposed
AS 15.13.090(c)-(f). He explained that the language on page 7,
lines 12-13, which says "be read in a manner that is easily
heard", modifies audio communication. The language "placed in
the communication" refers to print or video. The aforementioned
language is utilized on page 8, lines 20-21. Mr. Bullard
clarified that although colloquially people "discern" things
with their ears, "to discern" is a visual function. Therefore,
audio communications must be read in a manner that's easily
heard. With regard to the discussion of effect on candidate
elections, he directed the committee to page 6, lines 11-12,
which specifies that the disclaimer applies only to a person
other than a candidate, individual, or political party.
2:23:44 PM
HOLLY HILL, Executive Director, Alaska Public Offices Commission
(APOC), pointed out that current regulation, 2 AAC 50.306, sets
out "clearly identified" as follows:
(2) in all audio, audio-visual, automated telephone,
or electronic communications, the information must be
(A) visual and of sufficient size and duration to be
read by the viewer;
(B) spoken and audible at the same volume as the
communication; or
(C) both visual and spoken, as set out in (A) and (B)
of this paragraph.
2:24:46 PM
JOHN PTACIN, Assistant Attorney General, Labor and State Affairs
Section, Department of Law, began by reminding the committee
that any disclaimer and disclosure law that burdens free speech
is subject to strict scrutiny. He opined that proposed laws
must be narrowly tailored to serve compelling government
interest. Turning to CSHB 409(STA), Mr. Ptacin said that
Section 4 seeks more disclosure from corporations, companies,
and labor unions. Section 4 twice mentions a suspect
classification: "nationality". The legislation requires
officers, directors, and contributors to report their
nationality on APOC forms within 24 hours of making the
expenditure. He pointed out that the Citizens United case
didn't address whether there's a compelling government interest
to keep foreign influence out of political speech and candidate
elections. Therefore, he wasn't sure whether there's a
compelling government interest. Still, such classification is
subject to strict scrutiny because it may or may not burden free
speech and it's also a suspect classification.
MR. PTACIN explained that under federal law foreign nationals
aren't allowed to participate in the decision-making process for
such an expenditure. However, the addition of proposed AS
15.13.068 in CSHB 409(STA) further disallows foreign nationals
to make such an expenditure in a candidate election. Therefore,
the question becomes whether it's significant enough for a
corporation or labor union to specify, in APOC filings, that
they have foreign nationals acting as leaders in their
organizations despite the fact that the law already specifies
that they have nothing to do with the expenditure process. He
opined that the courts would have to address whether there's a
compelling government interest or real harm. Mr. Ptacin
informed the committee that with regard to proposed AS
15.13.068, he didn't see any conflict between the federal and
the proposed law. Although there may be some argument for field
preemption because there is substantial federal regulation in
this area, he didn't believe that federal preemption should be
an issue for Section 8.
MR. PTACIN then turned attention to Section 10 of CSHB 409(STA),
which requires that the MacIntyre v. Ohio Elections Commission
decision be placed back in the legislation. Under the U.S.
Constitution some expenditures should remain anonymous. He
identified those anonymous expenditures as leaf letting. He
moved on to Section 12, which includes a provision regarding
precertification speech that isn't defamatory. The
aforementioned provision may be too onerous of a burden to place
on an officer of a corporation or labor union. He mentioned
that Section 12 includes a requirement that foreign government
ownership be disclosed in advertisements if the foreign
government owns 10 percent of the advertisement. Again, the
court may be called upon to vet whether there's a compelling
government interest or not, particularly given that foreign
nationals can't be part of the expenditures process.
MR. PTACIN highlighted that the legislation proposes that the
expenditure be reported within 24 hours of an expenditure being
made, incurred, or authorized. Given that standard, the 24-hour
rule would require close accounting from third-party vendors.
The reporting accuracy may or may not suffer under the 24-hour
standard. He pointed out that the 10-day standard allows
entities making these types of expenditures time to obtain a
fair and accurate report before filing with APOC. Furthermore,
the 24-hour filing proposed by CSHB 409(STA) would result in a
lot of single filings that could've been avoided with the 10-day
rule that allows multiple independent expenditures on one form.
Mr. Ptacin questioned whether the 24-hour rule is the most
appropriate approach to obtain the most clear and accurate
filings to the public. In closing, Mr. Ptacin offered his
belief that wherever [HB 409] can provide clarity, the better
enforceability of these laws will result.
2:31:11 PM
BARBARA HUFF TUCKNESS, Director, Governmental & Legislative
Affairs, Teamsters Local 959, related support for CSHB 409(STA).
If requirements are made of a corporation, she expected those
same requirements to be placed on labor organizations. However,
labor organizations are a bit different in that it has members
versus stockholders. Ms. Huff Tuckness opined that CSHB
409(STA) creates a level playing field for all.
CHAIR RAMRAS, upon determining no one else wished to testify,
closed public testimony on HB 409, and relayed that CSHB
409(STA) would be set aside.
2:33:16 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 2:33 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| 01 HB386 Sponsor Statement.pdf |
HJUD 3/17/2010 1:00:00 PM |
HB 386 |
| 02 HB386 Bill v. A.pdf |
HJUD 3/17/2010 1:00:00 PM |
HB 386 |
| 03 HB386 Overview.pdf |
HJUD 3/17/2010 1:00:00 PM |
HB 386 |
| 04 HB386-LAW-CRIM-03-12-10.pdf |
HJUD 3/17/2010 1:00:00 PM |
HB 386 |
| 05 HB386 Amendments 2010 03 15.pdf |
HJUD 3/17/2010 1:00:00 PM |
HB 386 |
| 01 HB409(STA) Sponsor Statement v. S.pdf |
HJUD 3/17/2010 1:00:00 PM |
HB 409 |
| 02 HB409 HSTA CS v. S.pdf |
HJUD 3/17/2010 1:00:00 PM |
HB 409 |
| 03 HB409(STA) v. S Sectional Analysis.pdf |
HJUD 3/17/2010 1:00:00 PM |
HB 409 |
| 04 HB409 Legal Memo for CS 409(STA).pdf |
HJUD 3/17/2010 1:00:00 PM |
HB 409 |
| 05 HB409 AG Legal Analysis.pdf |
HJUD 3/17/2010 1:00:00 PM |
HB 409 |
| 06 HB409-1-1-031210-ADM-Y.pdf |
HJUD 3/17/2010 1:00:00 PM |
HB 409 |
| 07 HB409 NCSL states respond to Supreme Court ruling.pdf |
HJUD 3/17/2010 1:00:00 PM |
HB 409 |
| 08 HB409 news stories and opinions.pdf |
HJUD 3/17/2010 1:00:00 PM |
HB 409 |
| 09 HB0409-1-1-031210-ADM-Y.pdf |
HJUD 3/17/2010 1:00:00 PM |
HB 409 |
| 10 HB409 AARP ltr of support.pdf |
HJUD 3/17/2010 1:00:00 PM |
HB 409 |
| 11 HB409 Explaination of changes.pdf |
HJUD 3/17/2010 1:00:00 PM |
HB 409 |
| 12 HB409 HJUD Amendment S.4.pdf |
HJUD 3/17/2010 1:00:00 PM |
HB 409 |
| 13 HB409 HJUD Amendment S.5.pdf |
HJUD 3/17/2010 1:00:00 PM |
HB 409 |
| 14 HB409 HJUD Amendment S.7.pdf |
HJUD 3/17/2010 1:00:00 PM |
HB 409 |
| 15 HB409 HJUD Conceptual Amendment.pdf |
HJUD 3/17/2010 1:00:00 PM |
HB 409 |
| 16 HB409 HJUD Amendment S.2.pdf |
HJUD 3/17/2010 1:00:00 PM |
HB 409 |