Legislature(1995 - 1996)
03/20/1996 01:10 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE March 20, 1996 1:10 p.m. MEMBERS PRESENT Representative Brian Porter, Chairman Representative Joe Green, Vice Chairman Representative Con Bunde Representative Bettye Davis Representative Al Vezey Representative Cynthia Toohey Representative David Finkelstein MEMBERS ABSENT None COMMITTEE CALENDAR HOUSE BILL 339 "An Act relating to the termination of parental rights of incarcerated parents." - CSHB 339(JUD) MOVED FROM COMMITTEE HOUSE BILL 387 "An Act rearranging existing provisions of AS 47.10 into chapters separately addressing the topics of children in need of aid, delinquent minors and the institutions, facilities, and management, administration, and oversight of programs relating to minors, and conforming references and making other conforming changes due to that rearrangement; amending the manner of determining support obligations for children in need of aid and delinquent minors; amending the purpose of delinquency provisions; amending hearing procedures used in delinquency proceedings; amending provisions relating to enforcement of a restitution order entered against a minor; setting out the considerations to be given by a court in making its dispositional orders for minors adjudicated delinquent; authorizing municipalities to establish curfews for minors by ordinance; relating to enforcement of truancy under the compulsory school attendance law; and amending Rule 23(d), Alaska Delinquency Rules." - CSHB 387 (JUD) MOVED FROM COMMITTEE HOUSE JOINT RESOLUTION 51 "Proposing an amendment to the Constitution of the State of Alaska relating to limited entry for sport fish guides and allied professions." - HJR 51 MOVED FROM COMMITTEE HOUSE BILL 368 "An Act relating to election campaigns, election campaign financing, the oversight and regulation of election campaigns by the Alaska Public Offices Commission, the activities of lobbyists that relate to election campaigns, and the definitions of offenses of campaign misconduct; and providing for an effective date." - HEARD AND HELD HOUSE BILL 443 "An Act relating to the tax on transfers or consumption of motor fuel, and repealing the exemption from that tax for motor fuel which is at least 10 percent alcohol by volume; and providing for an effective date." - SCHEDULED BUT NOT HEARD PREVIOUS ACTION BILL: HB 339 SHORT TITLE: PRISON & TERMINATION OF PARENTAL RIGHTS SPONSOR(S): REPRESENTATIVE(S) ROKEBERG,Mulder,Robinson,B.Davis JRN-DATE JRN-PG ACTION 05/08/95 1976 (H) READ THE FIRST TIME - REFERRAL(S) 05/08/95 1976 (H) HES, STATE AFFAIRS, JUDICIARY 01/23/96 (H) HES AT 3:00 PM CAPITOL 106 01/23/96 (H) MINUTE(HES) 01/24/96 2528 (H) COSPONSOR(S): MULDER 01/30/96 2573 (H) COSPONSOR(S): ROBINSON 02/15/96 (H) HES AT 3:00 PM CAPITOL 106 02/15/96 (H) MINUTE(HES) 02/19/96 2800 (H) HES RPT CS(HES) NT 3DP 3NR 02/19/96 2801 (H) DP: ROKEBERG, TOOHEY, ROBINSON 02/19/96 2801 (H) NR: G.DAVIS, BUNDE, BRICE 02/19/96 2801 (H) ZERO FISCAL NOTE (DHSS) 02/22/96 (H) STA AT 8:00 AM CAPITOL 102 02/22/96 (H) MINUTE(STA) 02/23/96 2867 (H) STA RPT CS(HES) NT 3DP 1NR 02/23/96 2868 (H) DP: JAMES, PORTER, WILLIS 02/23/96 2868 (H) NR: IVAN 02/23/96 2868 (H) ZERO FISCAL NOTE (LAW) 02/23/96 2868 (H) ZERO FISCAL NOTE (DHSS) 2/19/96 03/06/96 (H) JUD AT 1:00 PM CAPITOL 120 03/06/96 (H) MINUTE(JUD) 03/20/96 (H) JUD AT 1:00 PM CAPITOL 120 BILL: HB 387 SHORT TITLE: JUVENILE CODE REVISION SPONSOR(S): REPRESENTATIVE(S) KELLY,THERRIAULT,Rokeberg,Kohring JRN-DATE JRN-PG ACTION 01/05/96 2367 (H) PREFILE RELEASED 01/08/96 2367 (H) READ THE FIRST TIME - REFERRAL(S) 01/08/96 2368 (H) HES, JUDICIARY, FINANCE 01/19/96 2483 (H) SPONSOR SUBSTITUTE INTRODUCED-REFERRALS 01/24/96 2528 (H) COSPONSOR(S): ROKEBERG 01/26/96 2548 (H) COSPONSOR(S): KOHRING 01/30/96 (H) HES AT 3:00 PM CAPITOL 106 01/30/96 (H) MINUTE(HES) 02/22/96 (H) HES AT 3:00 PM CAPITOL 106 02/22/96 (H) MINUTE(HES) 02/29/96 (H) HES AT 3:00 PM CAPITOL 106 02/29/96 (H) MINUTE(HES) 03/08/96 3021 (H) HES RPT CS(HES) NT 1DP 4NR 03/08/96 3022 (H) DP: ROKEBERG 03/08/96 3022 (H) NR: G.DAVIS, BUNDE, ROBINSON, BRICE 03/08/96 3022 (H) INDETERMINATE FISCAL NOTE (DPS) 03/08/96 3022 (H) 2 ZERO FISCAL NOTES (COR, DHSS) 03/08/96 3022 (H) REFERRED TO JUDICIARY 03/20/96 (H) JUD AT 1:00 PM CAPITOL 120 BILL: HJR 51 SHORT TITLE: SPORT FISHING GUIDE LIMITED ENTRY SPONSOR(S): REPRESENTATIVE(S) GREEN JRN-DATE JRN-PG ACTION 12/29/95 2358 (H) PREFILE RELEASED 01/08/96 2358 (H) READ THE FIRST TIME - REFERRAL(S) 01/08/96 2358 (H) STATE AFFAIRS, FSH, JUDICIARY 02/13/96 (H) STA AT 8:00 AM CAPITOL 102 02/13/96 (H) MINUTE(STA) 02/17/96 (H) STA AT 10:00 AM CAPITOL 102 02/17/96 (H) MINUTE(STA) 02/20/96 (H) STA AT 8:00 AM CAPITOL 102 02/20/96 (H) MINUTE(STA) 02/21/96 2822 (H) STA RPT 2DP 4NR 1AM 02/21/96 2822 (H) DP: GREEN, OGAN 02/21/96 2822 (H) NR: JAMES, IVAN, ROBINSON, WILLIS 02/21/96 2822 (H) AM: PORTER 02/21/96 2822 (H) FISCAL NOTE (GOV) 02/21/96 2822 (H) ZERO FISCAL NOTE (LAW) 02/28/96 (H) FSH AT 5:00 PM CAPITOL 124 02/28/96 (H) MINUTE(FSH) 02/29/96 2960 (H) FSH RPT CS(FSH) 3DP 2NR 02/29/96 2960 (H) DP: OGAN, G.DAVIS, AUSTERMAN 02/29/96 2960 (H) NR: ELTON, MOSES 02/29/96 2960 (H) FISCAL NOTE (GOV) 2/21/96 02/29/96 2960 (H) ZERO FISCAL NOTE (LAW) 2/21/96 03/20/96 (H) JUD AT 1:00 PM CAPITOL 120 BILL: HB 368 SHORT TITLE: ELECTION CAMPAIGN FINANCE REFORM SPONSOR(S): REPRESENTATIVE(S) JAMES JRN-DATE JRN-PG ACTION 12/29/95 2362 (H) PREFILE RELEASED 01/08/96 2362 (H) READ THE FIRST TIME - REFERRAL(S) 01/08/96 2362 (H) STA, JUDICIARY, FINANCE 01/25/96 (H) STA AT 8:00 AM CAPITOL 102 01/25/96 (H) MINUTE(STA) 01/30/96 (H) STA AT 8:00 AM CAPITOL 102 01/30/96 (H) MINUTE(STA) 02/01/96 (H) STA AT 8:00 AM CAPITOL 102 02/01/96 (H) MINUTE(STA) 02/29/96 (H) STA AT 8:00 AM CAPITOL 102 02/29/96 (H) MINUTE(STA) 03/05/96 (H) STA AT 8:00 AM CAPITOL 102 03/05/96 (H) MINUTE(STA) 03/09/96 (H) STA AT 10:00 AM CAPITOL 102 03/09/96 (H) MINUTE(STA) 03/12/96 3087 (H) STA RPT CS(STA) NT 2DP 3NR 03/12/96 3088 (H) DP: JAMES, PORTER 03/12/96 3088 (H) NR: GREEN, IVAN, ROBINSON 03/12/96 3088 (H) FISCAL NOTE (ADM) 03/20/96 (H) JUD AT 1:00 PM CAPITOL 120 BILL: HB 443 SHORT TITLE: INCREASE MOTOR FUEL TAX SPONSOR(S): RULES BY REQUEST OF LONG RANGE FINANCIAL PLAN CMSN JRN-DATE JRN-PG ACTION 01/22/96 2508 (H) READ THE FIRST TIME - REFERRAL(S) 01/22/96 2508 (H) STATE AFFAIRS, JUDICIARY, FINANCE 03/12/96 (H) STA AT 8:00 AM CAPITOL 102 03/12/96 (H) MINUTE(STA) 03/12/96 (H) MINUTE(STA) 03/14/96 (H) MINUTE(STA) 03/18/96 3175 (H) STA RPT CS(STA) 2DP 3NR 03/18/96 3175 (H) DP: JAMES, PORTER 03/18/96 3175 (H) NR: OGAN, ROBINSON, WILLIS 03/18/96 3176 (H) FISCAL NOTE (DOT) 03/18/96 3176 (H) REFERRED TO JUDICIARY 03/20/96 (H) JUD AT 1:00 PM CAPITOL 120 WITNESS REGISTER REPRESENTATIVE NORMAN ROKEBERG Alaska State Legislature State Capitol, Room 110 Juneau, Alaska 99801-1182 Telephone: (907) 465-4968 POSITION STATEMENT: Testified as sponsor on HB 339 LIZ DODD, Esq. American Civil Liberties Union, Alaska Chapter 100 Parks Street Juneau, Alaska 99801 Telephone: (907) 463-2601 POSITION STATEMENT: Testified on HB 339 REPRESENTATIVE PETE KELLY Alaska State Legislature State Capitol, Room 513 Juneau, Alaska 99801-1182 Telephone: (907) 465-2327 POSITION STATEMENT: Testified as sponsor on HB 387 L. DIANE WORLEY, Director Division of Family & Youth Services Department of Health & Social Services P.O. Box 110630 Juneau, Alaska 99801 Telephone: (907) 465-3191 POSITION STATEMENT: Testified on HB 387 ANNE CARPENETI, Assistant Attorney General Department of Law P.O. Box 110300 Juneau, Alaska 99811-0300 Telephone: (907) 465-3191 POSITION STATEMENT: Testified on HB 387 REPRESENTATIVE JOSEPH GREEN Alaska State Legislature State Capitol, Room 24 Juneau, Alaska 99801-1182 Telephone: (907) 465-4931 POSITION STATEMENT: Testified on HJR 51 GARY HULL P.O. Box 1964 Soldotna, Alaska 99669 Telephone: (907) 262-5601 POSITION STATEMENT: Testified on HJR 51 JAMES FITZGERALD Kings Sportfish 34794 Poppywood Soldotna, Alaska 99669 Telephone: (907) 262-6368 POSITION STATEMENT: Testified on HJR 51 DAN PRUITT Meier's Lake P.O. Box 142 Gakona, Alaska 99586 Telephone: (907) 822-3968 POSITION STATEMENT: Testified on HJR 51 BILL LEONARD P.O. Box 336 Gakona, Alaska 99586 (907) 822-3664 Telephone: (907) 822-3664 POSITION STATEMENT: Testified on HJR 51 JOHN WITTEVEEN 4844 Rezanof Drive Kodiak, Alaska 99615 Telephone: (907) 486-6307 POSITION STATEMENT: Testified on HJR 51 L. ALAN LEMASTER P.O. Box 222 Gakona, Alaska 99588 Telephone: (907) 822-3664 POSITION STATEMENT: Testified on HJR 51 JOE HAGER P.O. Box 11 Soldotna, Alaska 99669 Telephone: (907) 262-1575 POSITION STATEMENT: Testified on HJR 51 ACTION NARRATIVE MEL ERICKSON, Vice President Kenai River Guides P.O. Box 1127 Soldotna, Alaska Telephone: (907) 262-2980 POSITION STATEMENT: Testified on HJR 51 DAVE JONES Address Unavailable Telephone: (907) 486-6360 POSITION STATEMENT: Testified on HJR 51 DONALD WESTLUND Box 7883 Ketchikan, Alaska 99901 Telephone: (907) 225-9319 POSITION STATEMENT: Testified on HJR 51 ANDREW SZCZESNY (Address unavailable) POSITION STATEMENT: Testified on HJR 51 JOE HAINES (Address unavailable) POSITION STATEMENT: Testified on HJR 51 RUEBEN HANKE (Address unavailable) Telephone: (907) 283-4618 POSITION STATEMENT: Testified on HJR 51 JEFF LOGAN, Legislative Assistant to Representative Green Alaska State Legislature State Capitol, Room 24 Juneau, Alaska 99801-1182 Telephone: (907) 465-4931 POSITION STATEMENT: Testified on HJR 51 JACK CHENOWETH, Attorney Legislative Legal Counsel Legislative Legal and Research Services 130 Seward Street, Suite 409 Juneau, Alaska 99801-2105 Telephone: (907) 465-2450 POSITION STATEMENT: Testified on HB 368 TAPE 96-38, SIDE A Number 000 CHAIRMAN BRIAN PORTER called the House Judiciary committee meeting to order at 1:10 p.m. Members present at the call to order were Representatives Green, Bunde, Toohey and Vezey. Representative Finkelstein arrived at 1:11 p.m. and Representative Davis arrived at 1:15 p.m. HB 339 - PRISON & TERMINATION OF PARENTAL RIGHTS CHAIRMAN PORTER noted that there were five bills before the committee for consideration as follows: HB 339, HB 387, HJR 51, HB 368 and HB 443, the latter of which would not be heard. He summarized concerns regarding HB 339 and the proposed changes to this legislation. There were two provisions in this legislation, the first sought to provide specifics which the state and the courts could consider for the termination of parental rights, the fact that the parent was incarcerated. The second provision dealt with changing the entire scope of determining whether or not parental rights should be terminated and the language which addressed this more specifically "willing and able," by adding the word able. This second section was completely deleted from the committee substitute. The legislation before the committee merely purports to do what the original intent was and that is to consider incarceration of a parent when assessing parental rights. Number 222 REPRESENTATIVE NORMAN ROKEBERG stated that this was a fair characterization of where the legislation stood and he complimented the Chairman for his concise description. He than asked for the committee's consideration and support of CSHB 339 version (R). Representative Rokeberg also added that the deleted portion as noted would be considered separately. Number 311 LIZ DODD, Esq., American Civil Liberties Union (ACLU), Alaska Chapter testified on CSHB 339 version (R). She referred to page 5 of the Public Defender's memorandum which proposed that three paragraphs from a prior version of the legislation be included in the present version (R) in order to narrow the scope of determining parental rights. The ACLU felt that the period of incarceration imposed should include a significant portion of the child's minority. The present bill is very broad on this note and allows for a lot of discretion. By putting this section in it would narrow this intent to minority children and accomplish the stated purpose. MS. DODD continued by stating that the section the ACLU would like put back in this legislation is the clause that the parent has to have failed to make adequate provisions for the care of the child during the period of incarceration. She felt as though the parent should have this right. Ms. Dodd noted that if this bill does get passed the ACLU would like an additional paragraph drafted by the Public Defender's Agency which would allow a judge some discretion to retain some residual parental rights to the parent when the termination takes place, such as visitation, for example. MS. DODD noted some general concerns about the bill. She wondered about the applicability of it in terms of a person incarcerated in Lemon Creek and their child is in the custody of a grandparent. If the grandmother dies, can parental rights be lost under this scenario in this ex post facto way. Once this legislation goes into effect will someone already incarcerated come under the jurisdiction of this legislation. MS. DODD also wondered if this legislation would have an impact on sentencing. It's such a severe act to have a child taken away, how would judges interact with this. Would they be less willing to impose a stricter sentence under these circumstances. Number 627 REPRESENTATIVE JOSEPH GREEN inquired as to whether or not Ms. Dodd was suggesting in section 3 of the Public Defender's memorandum about a child's minority if parental rights were terminated would this be applicable from the time the person is incarcerated and their child is ten years old, for example. Would the incarceration from the time the bill be passed mean that this termination would be in effect until this child becomes an adult, or would the ten years of the child's prior life before this bill was passed be included. He asked what they were talking about in regards to defining a child's life. Would this include from the time the child was born or from the time this bill goes into effect or for the time this person is incarcerated. MS. DODD said she assumed it would be the significant term of the child's life and their remaining minority. At least the language which she proposed would narrow this time period considerably. Number 785 DIRK NELSON, American Civil Liberties Union, testified by teleconference from Valdez regarding CSHB 339 version (R). Mr. Nelson echoed Ms. Dodd's concerns and said the Division of Youth and Family Services (DYFS) on the surface was a good concept, but individual social workers and attorney generals cannot be trusted with this type of authority and power. He cited the history as to why incarceration has not been considered before when terminating parental rights, the concept of double jeopardy for one. MR. NELSON summarized by stating that he didn't think this bill was constitutional and he doesn't believe that the relationship between a child and parent should be brought to an end by a third party because of an incarceration. Number 973 REPRESENTATIVE CYNTHIA TOOHEY made a motion to adopt CSHB 339 version (R) as the committee's working draft. There being no objection the motion so passed. REPRESENTATIVE CON BUNDE noted the suggestion that language should be added to specify more clearly the terms of a child's minority when considering the termination of parental rights. REPRESENTATIVE ROKEBERG offered that the definition by law of a child is a minor and a minor is a child. REPRESENTATIVE BUNDE stated that it should be taken into account how much longer a child is going to be a minor, how large a portion of a child's minority the incarceration would include. Number 1080 CHAIRMAN PORTER spoke to the notion of including language to reflect this concept. He was concerned about this concept because it would require that there be a substantial sentence applied before a termination would be considered. It would eliminate the ability of the court to consider frequent short sentences which cause these same types of problems in a child's life. Especially due to alcohol, people cycle in and out of jail houses for years. These types of cycles can cause considerable problems. Chairman Porter also addressed one of the other issues raised by Ms. Dodd about a judge not wanting to institute a sufficient sentence based on a minority child's future, he thought that one way around this would be to not include this type of provision so that no matter what the sentence is, termination of parental rights should be considered. REPRESENTATIVE ROKEBERG stated that he agreed with this perspective and added that trying to establish some sort of mathematical equation or another standard would take away any discretion a judge could have. Number 1170 REPRESENTATIVE DAVID FINKELSTEIN offered an amendment number 1 to CSHB 339 version (R) which read as follows: "(A) If parental rights are terminated under this section due to incarceration, the court shall also make a specific finding concerning what residual parental rights are in the best interests of the child and should be retained by the parent whose rights are terminated." He stated that this amendment would require that a specific finding be included on any residual parental rights. It doesn't say what those would be and all options would remain available. REPRESENTATIVE ROKEBERG stated that he opposed the amendment because this was precisely why he introduced the bill. Number 1300 CHAIRMAN PORTER requested a roll call vote. Representatives Finkelstein and Davis voted yes. Representatives Green, Bunde, Toohey, Vezey and Porter voted no. The amendment number 1 failed. Number 1285 REPRESENTATIVE AL VEZEY commended Representative Rokeberg for working on this legislation. It was a difficult issue and he was presently torn on this bill and was not certain how he would vote if it was brought to the floor. REPRESENTATIVE TOOHEY stated she too commended this legislation. Some of her colleges felt as though this bill benefited older children, but she felt as though it's stated purpose was for infants. She felt this legislation was important for a child in need. Representative Toohey then made a motion to move CSHB 339 version (R) from the House Judiciary Committee with individual recommendations and a zero fiscal note. There being no objection it was so moved. HB 387 - JUVENILE CODE REVISION Number 1400 REPRESENTATIVE PETE KELLY came forward to testify as sponsor to HB 387. He stated that this legislation probably seemed more complicated than it really was just due to it's length. HB 387 does not address issues of confidentiality or serious felony crimes. It does not increase penalties for entry level crimes and it no longer addresses entry level criminal activity as it did in it's original form. REPRESENTATIVE KELLY stated that what this legislation does do is it splits the juvenile code into two parts effectively and into a residual third part. One side of the code deals with how the state will handle delinquent children, how it will deal with children in need of aid and then those portions of statute which apply to both for the department's purposes. The child in need of aid statutes are currently found in AS 47.10.00 which exists much the same as it has in the past. This legislation creates a new chapter 12 which will deal with delinquent children and chapter 14 would be the portion of the statute which deals with both. REPRESENTATIVE KELLY noted that in the past one of the difficulties in addressing juvenile crime is the "child in need of aid" and juvenile delinquents were mixed in statute. It was difficult for the courts and the department to adequately carry out their goals of helping children and dealing with juvenile crime. To split the code, Representative Kelly essentially listed AS 47.10, the "child in need of aid" section and then removed all the portions which dealt with delinquency, placed it in AS 47.12 and then rewrote the delinquent section with some policy changes. There are few policy changes in this bill. REPRESENTATIVE KELLY stated that the original, cumbersome language regarding truancy was stripped from the existing code and the new language essentially provides for the local school district to deal with truancy. This legislation also has a section dealing with curfew. It does not establish a statewide curfew, but puts the ability to establish a curfew in title 29. REPRESENTATIVE KELLY offered that as part of the policy changes he referred to with splitting the code, he thought it was appropriate that new language be drafted to define what a delinquent was. This gives the department policy direction on how they will deal with delinquent crime. He referenced page 23 and 34 as encompassing these noted sections. Representative Kelly quoted text regarding the purpose of the chapter as follows: "The protection of the public and reformation of the offender. To provide for the most common offenses committed by minors, resolution should require some form of sanction, that the sanction should be certain, swift and may take the form of a reasonable claim on the time and talent of the minor who has committed the offense; To provide that counseling provided to the minor should include the minors's family or guardian, that the minor's family or guardian has the right to offer suggestions and to make recommendations for the correction of the minor's behavior and that the minor's family or guardian maybe asked to participate in the supervision of the minor's treatment." He stated that this may sound very obvious, but it is simply not in code right now how they will deal with juvenile delinquents. REPRESENTATIVE KELLY stated that current law makes very brief mention of how the courts will deal in sentencing juvenile delinquents, "it shall consider the best interests of the child and the public." This was probably appropriate language when juvenile delinquents and children in need of aid were lumped together, but having made this split it was necessary to provide language which better gives the courts direction. On page 34, line 4, he quoted this language as written in the present form of HB 387. Representative Kelly stated that this legislation was a great working tool and for the established Youth Conference. He felt as though it gave a tool to all the juvenile legislation which has been formulated in the present legislative body and a tool to accommodate these other provisions. Number 1815 L. DIANE WORLEY, Director, Division of Family & Youth Services, Department of Health & Social Services testified that the department does support this bill. For the record, she stated that they'd like to extend their appreciation to Representative Kelly and Bruce Campbell for all their hard work. The department felt as though this legislation would assist them as they move forward in the potential rewrite of the juvenile code. Number 1973 ANNE CARPENETI, Assistant Attorney General, Department of Law, testified that she just received the new committee substitute yesterday and was only able to get half-way through it. She stated that this legislation represented a lot of work. The idea of splitting Title 47 into two parts is a good idea, although it's very hard to do. Ms. Carpeneti noted that there are sections which still need to be fixed and gave the committee examples of these problems. It was determined that the majority of these were technical in nature. She offered that the more substantive changes suggested were supported by the Department of Law. CHAIRMAN PORTER asked Ms. Carpeneti if these existing concerns could be put in an amendment which could be brought to the floor, especially if they were technical in nature. He suggested she review the legislation further and if she came up with substantive problems she could work it out with the sponsor. It was decided that she would review the remaining sections of this legislation and work to make any additional changes to be presented on the floor. TAPE 96-38, SIDE B Number 087 REPRESENTATIVE BUNDE made a motion to move CSHB 387 version (W) from the House Judiciary Committee with individual recommendations and attached fiscal notes as not amended. There being no objection it was so moved. HJR 51 - SPORT FISHING GUIDE LIMITED ENTRY Number 130 REPRESENTATIVE GREEN presented the House Joint Resolution 51 which provides for a clarification regarding the mixed signals from the court that says the state is not restricted from limiting the entry of a fishery. The language as is now enumerated in state statute covers sport fish guiding, as well as, commercial guiding. It has been rendered that commercial guides can be limited and there is some legal opinion which says that this applies to sport fishing as well. Others say that this won't stand muster and that some clarification must be outlined. This resolution adds the description that sport fish guiding as a profession is one that the state is not restricted from limiting on a limited entry basis. Number 202 GARY HULL testified by teleconference from Kenai. He stated that he was in favor of HJR 51 and noted a real need for limited entry on the amount of guides, especially in certain areas such as the Kenai. He noted that there are probably areas which don't need regulation at this time. Mr. Hull urged this resolution be placed on the ballot. Number 246 JAMES FITZGERALD testified by teleconference from Kenai. He stated that he wasn't a guide, but his wife was. They both agree that something should be done with the guide situation, especially on the Kenai in July. The only thing they do ask is that if a number of guides is set, to do so by attrition, rather than on an arbitrary basis. This way it would be fair to the people who are guiding now. Number 285 DAN PRUITT, testified from Meier's Lake by teleconference. (Testimony inaudible.) Number 340 BILL LEONARD testified by teleconference from Gakona. He asked who and how will it be determined the amount of guides on which river. REPRESENTATIVE GREEN noted that this would be instituted by the Department of Fish & Game. Based on the resource and the number of guides available this would be done on a basis (inaudible - coughing) commercial fishing too. Number 365 REPRESENTATIVE VEZEY said that it was his interpretation that before this program could implemented there would have to be a statute passed and the department would probably have to implement regulations. CHAIRMAN PORTER stated that what would happen after the constitution was amended is a statute would have to be written that would either merely give Fish & Game the authority to write regulations to determine how, where and when, or the statute could try to get into some policy making in this area depending on the will of the legislature at that time. JOHN WITTEVEEN testified by teleconference from Kodiak. He stated that he owned a lodge on Kodiak and with this business he runs a charter boat operation. The allocation problem continues to persist with the Kenai River and it's related areas, as well as, places in Southeast Alaska for charter boat operators and fishing guides. He said he would hate to see a limitation on the number of guiding operations, whether charter or river fishing implemented all over the entire state for a problem which perhaps exists in isolated areas. If indeed the concern is resource management, he felt as though Fish & Game has the option now if the resource is threatened to either close seasons or limit catches in order to conserve this resource. MR. WITTEVEEN noted that he employs a sixteen year old helper who presently has a sport fishing guide license. He is very good at what he does and Mr. Witteveen imagines that this helper will want to get into this field on a more permanent basis, yet the classic limited entry system in place for salmon such as for commercial would limit his ability to participate. He noted that the sport fishing business is not a lucrative profession. He felt that certain areas in Alaska, Kodiak particularly where the other commercial fisheries are on a decline or limited on a certain basis, people are looking for other opportunities, such as eco- touring or guiding kayaks or bear viewing, etc. He didn't see how sport fish guiding could be singled out on a blanket, statewide basis just because of problems in some areas of the state. Number 570 REPRESENTATIVE TOOHEY stated that she was around when limited entry was instituted to the crabbing industry statewide in the 60's. She felt then and now that this was a very "un-American" attitude to limit something that is free for everybody. She felt as though this was private enterprise that they were stepping on. She used the analogy of a dress shop and limiting one in a town where there are already too many dress shops. She stated that this was the whole purpose of free enterprize. Somebody is going to loose their shirt because there are too many guides on a river. This is the way it's suppose to work. She said she could just see what will happen. If the constitution is changed and this fishery becomes worth millions of dollars. She stated that we have screwed up the fishing industry so badly in this state now. This is not the government's job, to limit businesses. Number 636 REPRESENTATIVE GREEN spoke to one portion of Representative Toohey's comments. He noted that this legislation was not about limiting free enterprize. This was to protect the fisheries resource. If this legislation passes, Fish & Game would then, based on the ability to maintain the resource, implement the same type of program as for commercial fishing. CHAIRMAN PORTER stated that he saw a difference between the regulation of commercial fishing and this legislation. "What an analogy would be, would be, some guide to go show a commercial fisherman where to fish because he has the ability to go fish because he's either got a permit or will be fishing within the limits of the area. Same thing with a sports fisherman. They have to get a license and they have to abide by the regulations of how many they take, and all that kind of stuff. This is a new 'cat,' this is a guide for that. So I don't see this as a resource protection. Maybe I'm missing something." REPRESENTATIVE GREEN made a point that if guides are any good they are going to know how to extract the resource far better than the average fisherman. As these proliferate the resource is adversely affected. This is why the committee has heard from problem areas. There are certain fisheries where this regulation is definitely needed. Number 762 L. ALAN LEMASTER testified by teleconference from Gakona. By limiting the number of guides on a river, the amount of people fishing with these guides will be limited. However, the people who are not fishing with guides are not limited in any way. On an average day on the Gakona River there are many times where there are more people fishing without guides than ones with guides. These guideless fisherman do catch as many fish as those with. He didn't think that limiting the number of guides will limit the pressure on the fish, but will change the way people fish. MR. LEMASTER said he had a problem with the next step of the process if this legislation were to pass. In order to implement this policy a statute would spell out the regulations or this right would be given to the Department of Fish & Game. Mr. Lemaster is in the lodge business and as a result he deals directly on several levels with the Department of Environmental Conservation. A few years ago this department was given the jurisdiction over user fees. During those hearings he only heard of maybe two witnesses in support of user fees. Virtually everyone testified against this concept, but because it was a regulatory issue, now they have user fees coming out of their ears. MR. LEMASTER said he supports the concept of regulating guides because eventually this profession will have to be limited if anyone is going to make any money. However, if it is determined by the people of the state that they want limited entry he strongly suggested that the rules for this program should be spelled out very specifically by the legislature. "I can't fire anybody who works for Fish & Game, but I can sure help fire the guys that work for the legislature if they pass rules that are detrimental to my business." The regulatory agencies go 'nuts' when given regulations to implement. Number 991 JOE HAGER testified by teleconference from Kenai. He stated that he'd been a guide on the Kenai River since 1978. At that time there were 38 guides on the river. The parks took over the system in 1985. At that time they registered 183 guides. As of last year there were 314 guides that registered to fish on the Kenai River. He felt as though other guides around the state will eventually see the influx to their businesses as well. Mr. Hager felt as though they were going to have to cap this off because it's getting too congested on the river and it's not a good business. Number 1066 MEL ERICKSON, Vice-President, Kenai River Guides Association and Member, Deep Creek Fishing Charter Boat Association testified by teleconference from Kenai. He stated that he had guided in both these areas for about eight years. Mr. Erickson stated his support for HJR 51. This regulatory system for sport fish doesn't necessarily have to take place in the whole state, but maybe in just those areas which need the program presently. He said he had just returned from the Board of Fish meetings in Anchorage. The board just put more restrictions on guides in the Deep Creek area because of the increase in angler catches there. The escapement there is being affected. MR. ERICKSON stated that the Fish Board had asked guides during public testimony about ways to limit the amount of people who fish the Kenai since they have no authority to limit guides. He felt that if some limitations were not made soon that the Parks Department would do so maybe through a lottery or competitive bid, which would be much worse than some sort of limited entry proposed by HJR 51. He felt as though it would be a good idea to propose an amendment to this resolution which would state that limitation could not be implemented without a specific plan approved by the legislature. Mr. Erickson also suggested an amendment that would call for a moratorium that would cap at the 1995 level of guides since it will a few years before this program can be implemented. Number 1276 DAVE JONES testified by teleconference from Kodiak. He stated that he owned a lodge on Kodiak Island. He said that he was not necessarily opposed to HJR 51, but he had a lot of concerns about it and noted that it might be appropriate in hot spots around the state. Mr. Jones said that this measure was not necessary in his area. In regards to how this legislation will be implemented he had a lot of reservations about this juncture. Number 1347 DONALD WESTLUND testified by teleconference from Ketchikan. He stated that he had one question. He asked if the concept of limited entry would follow the limited entry language as it is written right now for commercial fishing. CHAIRMAN PORTER stated that this language was written now and they would not be able to guess what a new legislature would want to create as policy. MR. WESTLUND said that if this legislation passes it will create management problems. The only way that they can implement this limited entry is to admit that their policies towards the sport catch is problematic from a resource management perspective. Number 1570 ANDREW SZCZESNY testified by teleconference from Kenai. He stated that he's been a guide on the Kenai River for 12 years. Every time there is a concern about overcrowding, the guides seem to take the blame for this. He noted that if there isn't a cap placed on the number of guides now the resource won't be able to recover. At this time he has a special use permit on the upper Kenai River which is regulated by the federal government. He is one of 20 people who have this permit up there. The problem with this system is the influx who use this section of the river which is getting out of control, but if asked what the problem is, the government says there are too many guides on the river. The lower 48 has had problems with a number of rivers there and they've had to implement restrictions. It's time Alaska recognizes a need for these restrictions on the Kenai. Number 1682 JOE HAINES, President, Kenai River Guide Association testified by teleconference from Kenai. He made a plea to the other guides listening around the state that this effort would be a tool used by local advisory people or the guide associations in an immediate area, although it has to be implemented on a statewide basis. He used the example of the commercial fishery limited entry and it not being applied to those areas which don't need it. Secondly, he stated that he'd just come back from the Board of Fish meeting and said it was unbelievable the general consensus that this program should be established, but nobody could understand why it wasn't happening. In response to Representative Toohey's comments, he felt they were extremely short sighted. He fully supports HJR 51. Number 1847 CHAIRMAN PORTER asked Mr. Haines if he thought that limited entry for a sport fishing guide was the same as for a commercial fisherman. MR. HAINES answered that limited entry was a stepping stone. He noted that guided anglers catch 70 percent of the salmon on the Kenai, although they only make up a quarter of the boats which are guide boats. He felt as though there would be a time that a non- resident would be limited to certain days they can fish. He said that he didn't mind taking the first step as a guide association to set some of these limits. Number 1970 CHAIRMAN PORTER asked if the Department of Fish & Game limit the catch of sport fishing, whether it's guided or not. MR. HAINES pointed out that sport fishing is not limited due to allocation, but that a minimum escapement is required. The guides get blamed for all the regulations generated because people need a guide to figure them all out. Fish & Game has the latitude, but information can't be gathered until fish reports come back the following year. There are many streams where salmon counts aren't done. He noted the increase in the number of guides just in the past year and not only are the resource suffering, but the quality of experience is lacking. Number 2099 REPRESENTATIVE GREEN added that the Fish & Game does limit the amount of escapement, but sometimes they miss as noted by closures of all the fish types in an area. Limiting commercial fishing doesn't solve the entire problem. TAPE 96-39, SIDE A MR. HAINES responded to a question posed by Representative Toohey, a question which is not reflected in the minutes because of a tape change. He stated that the Kenai River was the first river to go to a two fish bag limit. This spread out to the other streams in the Kenai system. Mr. Haines said that it was his opinion that this policy should be instituted throughout Cook Inlet. He noted that five kings was pretty liberal, instead of transferring this fishing effort and waiting till there are resource problems. He cited some of the rivers in the lower 48 and the limits instituted there. Mr. Haines stated that in order to preserve resources Alaska will have to limit the existing popular fishing areas. Number 222 RUEBEN HANKE testified by teleconference from Kenai. He said he was in favor of this resolution. He said it was hard to follow through on end river restrictions when the number of sport fisherman are too great. The guides are all trying to make a living and when a stream closes because of escapement problems, this is hard one everyone. He said it's also hard to tell clients on a "trip of their lifetime" that they have to release their fish under a catch and release policy. Mr. Hanke felt as though this resolution would create more continuity to the field. Number 360 MR. LEMASTER from Gakona said he had a few more things to add. He stated that rules which apply to one area don't always apply to another. He questioned the basic purpose of this bill, was it is to limit the number of guides for the benefit of the guides or is it to limit the catch on the river so it won't be placed in jeopardy. If it is the latter, he felt as though some credence should be given to the fact that guides take a limited amount of fish out of the river. He noted the numbers quoted for the guide take on the Kenai at 70 percent and stated that there are other areas where this may be reversed. Mr. Lemaster added that basically they just need to limit the amount of people on a river. Number 520 REPRESENTATIVE BUNDE spoke to the issue of limited entry and how the value of permits for commercial fishing has skyrocketed. He said he was in favor of limited entry for sport fishing as long as the state held title to these permits and they would be given back to the state once a guide finishes with a permit so that a dynasty won't be created. He also spoke to a grandfathering program to allow present guides into the system. Number 719 CHAIRMAN PORTER commented that they have established this as a three step process, first this issue would go on the ballot to see if the people want to amend the constitution by subsequent regulation. For the record, he had concerns about this manner of limitation. He had concerns on a much broader scope about state permits and licenses becoming a valuable commodity. At some point this should be stopped. Number 788 REPRESENTATIVE FINKELSTEIN felt as though the system of limited entry is the only thing they are left with as an alternative in the face of limited resources. He used the example of Denali National Park and the fact that he's come to accept this as part of this experience, that it is under a limited entry program. It's the nature of high interest areas and Alaska needs this tool. Number 850 REPRESENTATIVE GREEN stated that the fiscal note consisted of $2,200 as a one time shot for getting this limited entry issue on the ballot. The amount associated with this issue as a constitutional amendment should be done as a matter of course rather than as a special appropriation. He recommended adopting a zero fiscal note. Number 941 JEFF LOGAN, Legislative Assistant to Representative Green responded to a question posed by Representative Toohey to define what a "closely allied profession" was in regards to this legislation. He stated that this term was included in the legislation to cover skippers who were not guides who run a boat, people who bait hooks for clients, deck hands and others who assist in the guiding profession who are not guides. Number 1050 REPRESENTATIVE GREEN made a motion to zero out the attached fiscal note provided by the Division of Elections as to the cost of the constitutional amendment. There was an objection. A roll call vote was taken. Representative Green voted yes. Representatives Bunde, Toohey, Vezey, Finkelstein and Porter voted no. The proposed motion failed. Number 1118 REPRESENTATIVE BUNDE made a motion to move HJR 51 from the House Judiciary Committee with individual recommendations and attached fiscal note. Representative Toohey objected. A roll call vote was taken. Representatives Bunde, Vezey, Finkelstein, Green and Porter voted yes. Representative Toohey voted no. The motion passed. HB 368 - ELECTION CAMPAIGN FINANCE REFORM Number 1158 CHAIRMAN PORTER introduced Jack Chenoweth to make a presentation regarding HB 368. Mr. Chenoweth came forward. Number 1165 JACK CHENOWETH, Attorney, Legislative Legal Counsel, Legislative Legal and Research Services, presented an overview on how HB 368 was drafted in it's present form. Representative James had asked at the outset that they prepare a bill based upon the initiative that was then in circulation and which was subsequently certified for the November general election ballot. This they did. The drafting differed from the initiative, but basically covered the same points. In a hearing before House State Affairs, the principal sponsor of the initiative, Mr. Mike Frank from Anchorage, indicated on the record that he thought that the bill as originally introduced was in fact virtually the same as the initiative. From this point there was a work committee formed composed of Representative James, Finkelstein and Senator Tim Kelly who met on a few occasions. Using materials provided in significant part by Representative Finkelstein, these consisted of about 30 changes to the original bill as introduced. MR. CHENOWETH stated that this work committee made about 30 changes to the original bill and this was the bulk of the differences between the original bill as introduced, the initiative, and the bill as being reported from the State Affairs Committee. The following sets out the changes undertaken by the committee as noted. MR. CHENOWETH said that the initiative included an indexing requirement which said that at periodic intervals the dollar figure set in the initiative would be adjusted to reflect changes in the cost of living. This was taken out of the bill and no longer appears here. The legal services division read the initiative to require a registration before making contributions. In point of fact, the committee opted to eliminate any requirement of registration before individuals could make contributions. The bill reflects this portion of the initiative. MR. CHENOWETH noted that the initiative proposed to reduce cash contributions from $100 in current law to $25. The committee and hence, the State Affairs version took this back to current law restoring the reference to $100. The initiative came down rather prohibitively on the acceptance of payment to and acceptance of honoraria by people who are candidates after they have become candidates. The work committee took this back more in the direction of current law, allowing some compensation for the giving of personal services and payment, as well as, receipt of honoraria by persons who are candidates. MR. CHENOWETH offered that the initiative set an 11 month period preceding a general election as the period of time in which candidates could go out and fund raise. The work committee substituted for the principle races, statewide and legislative, fixed dates for statewide elections. For the governor and lieutenant governor, the initial dates these folks may begin to raise funds is January 1 of the general election year of which they are to be elected or re-elected. For legislators it is June 1 of the general election year in which the legislative seat is contested, for all others, which is the state's special elections and municipal elections, the five month window period was left in place. The result of this was to change the window period, but it leaves in place the concept as set out in the original initiative, which is that money raised is in the election year only. Money cannot be raised in off years. MR. CHENOWETH stated that the initiative allowed family members to make loans to candidates. The work committee disallowed this and the language authorizing loans by family members came out of the bill. A technical amendment was made which eliminated a provision in current law which required that when contributions in excess of $250 be disclosed that a copy of the report filed with the Alaska Public Offices Commission (APOC) must also be sent to the candidate receiving the contribution. The work committee conformed the definition of prohibitive contributions as a drafting matter. The committee was interested in the authorized uses of surplus uses of campaign funds. He recalled an initiative which allowed for five or six ways these funds could be used. The work committee adds to this disposition in three ways: money can be returned to contributors on a pro rata basis; some of the surplus money can be carried forward to be set aside for a subsequent legislative race or campaign; and a certain amount may be put in a legislative office account and to be used as a supplement to a current legislative office allowance. MR. CHENOWETH noted that the penalty provisions were modified. The initiative used a sliding scale of civil penalty which drew from criminal law concepts of criminal culpability and noted notions of aggravating and mitigating factors. The work committee abandoned this approach, went back to something which approximates the current civil penalty arrangement, does allow aggravation in limited situations, but generally the approach taken in the State Affairs version comes closer to what is more familiar with in current law. MR. CHENOWETH said the initiative drew a definition of political party out of AS 15.60.00, the election code, and brought it forward into the campaign financing provisions. The question arose from a minor party about whether they would be treated as a political party for purposes of receiving the higher amounts that political parties could receive as contributions and expenditures. He was asked to go back and reform the definition so that the definition of political party so that this minor political party would clearly qualify as a party and not be restricted to the status of a group. He noted that in this definition of political party if they ever got three percent of the vote in a gubernatorial election across any one of the last five gubernatorial elections, they would continue to quality as a political party for purposes of this act. MR. CHENOWETH added that the criminal penalties in the initiative have been stepped up so that matters which were intentional violations could be treated and prosecuted as C felonies. The committee was of the opinion that these penalties should be stepped down by one step. The most serious penalties in the State Affairs version are A misdemeanors for intentional violations, B misdemeanors for knowing violations, and violations for that category of offense which is punishable by the payment of a fine for reckless or criminally negligent violations. MR. CHENOWETH stated that current laws says that expenditures in excess of $250 made at the close of a campaign have to be reported within a nine or ten day window period. No one reports expenditures, they report the contributions. This bill makes the change to delete the reference to expenditures, but contributions would have to be reported. The statement by contributor requirement was revised to limit it to individuals. The "paid for by" requirement was modified in two places based upon a U.S. supreme court decision about a year ago which carved out an exception for the "paid for by" requirement for independent campaign related expenditures that had to do with propositions or questions. Small amounts which cumulatively did not exceed $250 a year were exempted from the "paid for by" requirement in the State Affairs Committee version. The initiative drew the term "publicly funded entity" in without supplying a definition. He was asked to provide one and he did so. MR. CHENOWETH outlined that the State Affairs version picked up on a request that the definition of a control group has to have in it's name, the name of the individual candidate for or against whom this control group is working, now says that the group has to have 50 percent or more of it's expenditures directed towards this end. They made an amendment in the State Affairs version that drops this down to thirty three and a third percent. He was told that the Public Office of Commission would like to see this taken back to current law. As this legislation came from State Affairs, this change is in there. MR. CHENOWETH said that they have tried to work through and include in the State Affairs version a definition or statement of the relationship between a political party and subordinate units, groups such as district parties and group which come in and ask to be affiliated with the main political parties. They had a discussion on two occasions in the work committee and brought this type of statement into the bill. MR. CHENOWETH noted that as mentioned earlier, the disclaimer provision has been amended to reflect the decision of the U.S. Supreme Court in the MacIntyre decision. The effective date from the initiative has changed so that the entire bill would become effective January 1, 1997. There is in the bill, but not in the original initiative a provision which bars the use of charitable gaming proceeds to support political activities under Section 2 of this bill. The original initiative barred use of money from out- of-state sources. This bill allows it within strict limits so that there can be limited acceptance of money from non-residence in statewide, state Senate, and state House races. The maximum amount that a political party may contribute to a candidate is increased over the amount set in the initiative. The amount that a group can contribute to a candidate which was a $1000 dollars in current form was reduced in the initiative and was taken back to $1000 dollars in the State Affairs version. Groups are not permitted in the initiative to give to other groups. The State Affairs version lifts this prohibition to allow groups to make these contributions to other groups to a maximum of a $1000. After some discussion, the bill incorporated a provision that limits the governor and lieutenant governor from raising election campaign funds during the legislative session. They have in place something which says that they may raise money while the session in progress. MR. CHENOWETH noted that they overhauled the litigation provision. The initiative allowed that the taxpayer who wanted to challenge a candidate could go to one of two forums, the Alaska Public Offices Commission or to court. They revised this to eliminate the automatic chance of going to court unless the APOC is first addressed in the form of a complaint and given 60 days to work through the situation and to come to some preliminary step. If they don't get this far within the 60 days, only then can someone go to court. The object of this was to prevent last minute filings in court which gain a lot of publicity, but would still not cut off the right of access if the APOC drags it's feet. MR. CHENOWETH offered that current laws states that if someone says at the outset that they are going to run and not raise or expend more than $1000 they don't have to worry about disclosure. The committee has recommended that this amount be raised to $2500. A severability provision which appeared in the initiative, but which they took out in the initial drafting because the general severability clause that attaches presumably to all bills under Title 1, Senator Kelly asked that it be put back in this bill as it appears. In addition, in the current draft a clause was enumerated that says that this bill and the initiative cannot both take effect. The idea being, that if the lieutenant governor says that the bill and initiative are substantially the same, the initiative does not go on the ballot and hence this bill becomes law. If the lieutenant governor says that this bill and the initiative are not substantially the same, the initiative alone goes before the voters. This does not become law. The idea is that if one is dropped one on top of the other, there will be quite a mess to sort out for 1997. Number 2000 CO-CHAIRMAN GREEN adjourned the meeting at 3:02 p.m.