Legislature(1995 - 1996)

02/07/1996 01:40 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
               HOUSE JUDICIARY STANDING COMMITTEE                              
                        February 7, 1996                                       
                           1:40 P.M.                                           
                                                                               
                                                                               
 MEMBERS PRESENT                                                               
                                                                               
 Representative Joe Green, Vice Chairman                                       
 Representative Con Bunde                                                      
 Representative Al Vezey                                                       
 Representative Cynthia Toohey                                                 
 Representative David Finkelstein                                              
                                                                               
 MEMBERS ABSENT                                                                
                                                                               
 Representative Brian Porter, Chairman                                         
 Representative Bettye Davis                                                   
                                                                               
 COMMITTEE CALENDAR                                                            
                                                                               
 HOUSE BILL 446                                                                
 "An Act requiring home rule municipalities to bring actions for               
 certain injunctive relief relating to nuisances."                             
                                                                               
      - HB 446 PASSED OUT OF COMMITTEE                                         
                                                                               
 Consideration of Barbara Miklos to the Board of Governors of the              
 Alaska Bar and Vicki A. Otte to the Alaska Judicial Council.                  
                                                                               
 PREVIOUS ACTION                                                               
                                                                               
 BILL:  HB 446                                                               
 SHORT TITLE: NUISANCE INJUNCTIONS BY HOME RULE MUNI'S                         
 SPONSOR(S): REPRESENTATIVE(S) ROKEBERG                                        
                                                                               
 JRN-DATE     JRN-PG             ACTION                                        
 01/24/96      2523    (H)   READ THE FIRST TIME - REFERRAL(S)                 
 01/24/96      2524    (H)   JUDICIARY                                         
 02/07/96              (H)   JUD AT 01:00 PM CAPITOL 120                       
 02/09/96      2683    (H)   JUD RPT  3DP 1NR                                  
 02/09/96      2683    (H)   DP: GREEN, BUNDE, TOOHEY                          
 02/09/96      2683    (H)   NR: FINKELSTEIN                                   
 02/09/96      2683    (H)   ZERO FISCAL NOTE (LAW)                            
 02/09/96      2683    (H)   REFERRED TO RULES                                 
                                                                               
 WITNESS REGISTER                                                              
                                                                               
 MARY HUGHES, Municipal Attorney                                               
 Municipality of Anchorage                                                     
 632 West 6th Avenue                                                           
 Anchorage, Alaska  99519-6650                                                 
 Telephone:  (907) 343-4545                                                    
 POSITION STATEMENT:  Testified on HB 446                                      
                                                                               
 LESLIE SCHUMACHER, Assistant Municipal Attorney                               
 Municipality of Anchorage                                                     
 632 West 6th Avenue                                                           
 Anchorage, Alaska  99519-6650                                                 
 Telephone:  (907) 343-4545                                                    
 POSITION STATEMENT:  Testified on HB 446                                      
                                                                               
 ACTION NARRATIVE                                                              
                                                                               
 TAPE 96-16, SIDE A                                                            
                                                                               
 VICE CHAIRMAN JOE GREEN called the House Judiciary committee                  
 meeting to order at 1:40 P.M.  Members present at the call to order           
 were Representatives Bunde, Toohey and Vezey.  Representative                 
 Finkelstein arrived at 1:50 P.M.  Representative Davis and Chairman           
 Porter were absent.                                                           
                                                                               
 HB 446 - NUISANCE INJUNCTIONS BY HOME RULE MUNI'S                            
                                                                              
 REPRESENTATIVE NORMAN ROKEBERG came forward to address HB 446 as              
 sponsor.  He pointed out that on the face of it, this bill seemed             
 like a simple and harmless bill, but that it had significant                  
 meaning.  This legislation would allow municipalities to bring a              
 cause of action in equity to enjoin nuisances through an Alaska               
 Statute under the heading of "Abatement of Lewd Houses."  He stated           
 that this was an old statute which had been on the books for a                
 number of years.  Under this provision, the Attorney General of the           
 State of Alaska, as well as a private citizen, have standing to               
 enjoin lessees, agents or owners of a particular premise from                 
 particular activities, most specifically prostitution, gambling,              
 and the use of controlled substances.  Representative Rokeberg                
 stressed that the latter was a major issue.                                   
                                                                               
 REPRESENTATIVE ROKEBERG referenced a letter in the bill packet from           
 the Deputy Chief of Police of Anchorage, Duane S. Udland, as well             
 as, a Resolution from the Anchorage Chamber of Commerce, which was            
 a major piece of the mayor's fight against of crime in the City of            
 Anchorage.                                                                    
                                                                               
 Number 260                                                                    
                                                                               
 REPRESENTATIVE BUNDE asked that in it's basic terms this                      
 legislation would allow a municipality to close down a crack house.           
                                                                               
 REPRESENTATIVE ROKEBERG said that this was correct.                           
                                                                               
 REPRESENTATIVE VEZEY asked if any home rule municipalities had                
 attempted to obtain an injunction against a particular property               
 owner, as engaging in acts considered a nuisance and was then                 
 denied this right.  He stated that this was one of those areas                
 where he was unsure whether the legislature needed to give                    
 authority to a sovereign entity when that right had never been                
 taken away in the first place.                                                
                                                                               
 Number 336                                                                    
                                                                               
 REPRESENTATIVE ROKEBERG said he couldn't answer this question, but            
 deferred to the legal experts on teleconference in Anchorage.                 
 Representative Rokeberg stressed that where the Attorney General of           
 Alaska had been requested to take action regarding nuisances and              
 because they have indicated they don't have the resources, or                 
 perhaps not even the will to do so, he felt that this was good                
 reason for the requested statutory revision.                                  
                                                                               
 Number 400                                                                    
                                                                               
 MARY HUGHES, Municipal Attorney, Municipality of Anchorage,                   
 testified by teleconference from Anchorage.  She responded to the             
 question by Representative Vezey regarding whether the municipality           
 had ever sought injunctive relief.  The municipal law department              
 believed that under the statute as it now exists, the municipality            
 may not seek injunctive relief.  This was not a stick in the bundle           
 of sticks which they might use to prevent crime in the Municipality           
 of Anchorage.                                                                 
                                                                               
 MS. HUGHES stated that this was one of the areas in which the                 
 department proposed a resolution short of the enactment of the                
 proposed legislation before the committee now.  Last year the                 
 department talked to the Attorney General asking that they be given           
 special (indisc.) and the result was the appointment in effect, of            
 an almost, Assistant Attorney General to enforce these injunctive             
 acts.  Unfortunately, this entire process had taken longer than               
 expected.                                                                     
                                                                               
 MS. HUGHES stated that some of the requirements of this special               
 appointment were ones that she could not agree to.  For instance,             
 in order that this specially appointed person to enforce an act               
 vis-a-vis the state of Alaska, they would be required to report to            
 one of the Assistant Attorney General's in Anchorage.  This type of           
 reporting system was not suitable from Ms. Hugh's perspective and             
 it was probably inappropriate for an Assistant Municipal Attorney             
 to do so.                                                                     
                                                                               
 MS. HUGHES stressed that the municipality would like the power to             
 act on nuisance claims independent of the state of Alaska.  The               
 municipality had exhausted this other alternative.  Ms. Hughes                
 pointed out that they have situations in which this law could be              
 used right now.  She noted that, especially in Anchorage, the                 
 landlords are not very cooperative.  Equipped with this particular            
 provision, along with the municipal law office's willingness to               
 pursue these cases, Ms. Hughes thought they could make a dent in              
 those areas of crime where this type of civil abatement may be the            
 only way in which to get a landlord's attention.                              
                                                                               
 MS. HUGHES noted that the municipality tried to resolve this                  
 problem in other ways and when she mentioned this proposed                    
 legislation to the Attorney General, he understood.                           
                                                                               
 Number 670                                                                    
                                                                               
 REPRESENTATIVE VEZEY asked Ms. Hughes if she had ever gone to court           
 and been denied authority over these types of nuisance cases or if            
 the municipal assembly had ever tried to adopt these provisions on            
 their own.                                                                    
                                                                               
 MS. HUGHES said that the department doesn't interpret the law as              
 having the ability to do this.  In other words, the law                       
 specifically states that the "Attorney General shall or a private             
 citizen may..."  She noted that the Attorney General's office does            
 not meet the description as being a private citizen.  The                     
 municipality has not utilized this particular law because they feel           
 as though they cannot do so.                                                  
                                                                               
 REPRESENTATIVE VEZEY again asked if there had been any effort to              
 establish authority in the municipality to do this.  As a home rule           
 municipality, he was unclear as to whether or not the state had               
 actually taken this power away from them.  He asked if they had               
 tried to establish their authority under ordinance or bylaw which             
 would permit this.                                                            
                                                                               
 Number 770                                                                    
                                                                               
 MS. HUGHES pointed out, as in many cases, the department always               
 tries to anticipate defense council's arguments and because this              
 particular law is on the books, the defense could argue that the              
 legislature has only allowed the Attorney General of the State of             
 Alaska or a private citizen to pursue this remedy.  This was not              
 within the remedies available to the municipality.  Therefore, the            
 municipality could find themselves in court arguing against the               
 argument that they don't have this authority.  Ms. Hughes added in            
 theory that there was a possibility they may have the power to                
 this, but she was more comfortable pursuing the proposed the                  
 legislation as a remedy.                                                      
                                                                               
 Number 875                                                                    
                                                                               
 LESLIE SCHUMACHER, Assistant Municipal Attorney, Municipality of              
 Anchorage, testified by teleconference.  She pointed out that one             
 of the important aspects of this legislation was that, it not only            
 allows the municipality to go after a tenant who might be selling             
 drugs, for example, but also allows them to go after a landlord who           
 rents to such a tenant.  Ms. Schumacher also added, that if they              
 were required to enact a similar ordinance in the municipal code,             
 they probably could not specify anything related to landlord/                 
 tenant laws, since these are already enumerated in state statute.             
                                                                               
 MS. SCHUMACHER said that if a nuisance was found under this                   
 legislation, the court would automatically terminate the lease                
 between the landlord and tenant.  The building would also be closed           
 for a year.  The landlord would have to prove that he had been                
 trying to resolve this problem without success before the                     
 municipality became involved.  He would pay all attorney's fees in            
 the action and post a bond to ensure the nuisance would not happen            
 again if he was found in contempt of court.                                   
                                                                               
 Number 977                                                                    
                                                                               
 VICE CHAIRMAN GREEN asked about a particular situation where the              
 landlord is an absentee landlord, say for example, if he does not             
 live in the same municipality or area where the abuse is taking               
 place.                                                                        
                                                                               
 MS. SCHUMACHER pointed out that under this situation the landlord             
 would still be subject to the provisions just discussed.  The                 
 question relies on where the property is located.                             
                                                                               
 REPRESENTATIVE VEZEY noted that as a landlord he was in a similar             
 situation with a tenant who was trafficking drugs.  He wondered               
 about reasonable steps that would be allowed for an absentee                  
 landlord to rectify a problem such as this one.                               
                                                                               
 Number 1124                                                                   
                                                                               
 MS. HUGHES said that she had been in the identical situation.  This           
 present legislation was drafted to anticipate a situation where,              
 for example, drug trafficking had been taking place for an extended           
 period of time such as 6 months to a year.  She stressed that                 
 typically it would be a situation where a landlord would have                 
 knowledge of the nuisance for a very extended period of time.                 
                                                                               
 MS. HUGHES stated that these types of cases would be referred to              
 the Attorney General's office for prosecution, but because of                 
 budget cuts and limited man power, this in the past, had not been             
 successful.                                                                   
                                                                               
 Number 1326                                                                   
                                                                               
 REPRESENTATIVE CON BUNDE asked what would trigger the use of this             
 provision other than prosecutorial discretion.                                
                                                                               
 MS. HUGHES stated that it wouldn't be initiated from a                        
 prosecutorial side since this would be a civil action, but the                
 Anchorage Attorney's office would decide if this was an appropriate           
 action under the circumstances.  The municipality would have to               
 then prove these circumstances in a court of law.                             
                                                                               
 Number 1424                                                                   
                                                                               
 REPRESENTATIVE ROKEBERG requested Ms. Hughes to clarify, in terms             
 of a remedy and the procedure, whether or not it would be possible            
 to require a forfeiture of sale of the property.                              
                                                                               
 MS. SCHUMACHER stated that this provision wouldn't provide for a              
 sale or a forfeiture, but the landlord would be required to remove            
 any furniture or fixtures which were used to perpetuate the                   
 nuisance.  If the property owner did not respond at all, they would           
 be held in contempt of court and they would be required to pay up             
 to $1000 fine and could be imprisoned from a minimum of three                 
 months to six months.  If they didn't pay the $1000 fine, it would            
 become a lien on the property.  The property could eventually be              
 forfeited to the municipality in this way, if the fine wasn't paid.           
                                                                               
 Number 1555                                                                   
                                                                               
 REPRESENTATIVE BUNDE made a motion to move HB 446 from the                    
 Judiciary Committee with the attached zero fiscal note with                   
 individual recommendations.  Hearing no objection it was so moved.            
 Number 1570                                                                   
                                                                               
 VICE CHAIRMAN GREEN brought before the committee the reappointments           
 of Vicki A. Otte to the Alaska Judicial Council and Barbara Miklos            
 to the Board of Governors of the Alaska Bar.                                  
                                                                               
 Number 1630                                                                   
                                                                               
 REPRESENTATIVE BUNDE made a motion to pass the name of Vicki A.               
 Otte for consideration to the Alaska Judicial Council for purposes            
 of confirmation.  Hearing no objection this consideration was so              
 moved.                                                                        
                                                                               
 Number 1660                                                                   
                                                                               
 REPRESENTATIVE CYNTHIA TOOHEY made a motion to pass the name of               
 Barbara Miklos for consideration to the Board of Governors of the             
 Alaska Bar for purposes of confirmation.  Hearing no objection this           
 consideration was so moved.                                                   
                                                                               
 ADJOURNMENT                                                                   
                                                                               
 REPRESENTATIVE GREEN adjourned the House Judiciary meeting at 2:10            
 P.M.                                                                          
                                                                               

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