Legislature(1999 - 2000)
03/17/1999 01:12 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE March 17, 1999 1:12 p.m. MEMBERS PRESENT Representative Pete Kott, Chairman Representative Joe Green Representative Norman Rokeberg Representative Jeannette James Representative Lisa Murkowski Representative Eric Croft Representative Beth Kerttula MEMBERS ABSENT All members present COMMITTEE CALENDAR HOUSE BILL NO. 57 "An Act relating to immunity for certain claims against the state, a municipality, or agents, officers, or employees of either, arising out of or in connection with the year 2000 date change; and providing for an effective date." - MOVED CSHB 57(JUD) OUT OF COMMITTEE HOUSE JOINT RESOLUTION NO. 3 Proposing an amendment to the Constitution of the State of Alaska relating to initiatives regarding natural resources belonging to the state. - HEARD AND HELD HOUSE JOINT RESOLUTION NO. 7 Proposing an amendment to the Constitution of the State of Alaska relating to initiative and referendum petitions. - HEARD AND HELD HOUSE JOINT RESOLUTION NO. 25 Proposing an amendment to the Constitution of the State of Alaska relating to a petition for an initiative or referendum regarding fish or wildlife. - HEARD AND HELD HOUSE BILL NO. 103 "An Act relating to civil actions by municipalities and certain public corporations and prohibiting certain civil actions by them against firearms or ammunition manufacturers and dealers." - SCHEDULED BUT NOT HEARD (* First public hearing) PREVIOUS ACTION BILL: HB 57 SHORT TITLE: STATE & MUNI IMMUNITY FOR Y2K SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR Jrn-Date Jrn-Page Action 1/22/99 64 (H) READ THE FIRST TIME - REFERRAL(S) 1/22/99 64 (H) CRA, JUDICIARY 1/22/99 64 (H) ZERO FISCAL NOTE (ADM) 1/22/99 64 (H) GOVERNOR'S TRANSMITTAL LETTER 2/04/99 (H) CRA AT 8:00 AM CAPITOL 124 2/04/99 (H) MOVED OUT OF COMMITTEE 2/04/99 (H) MINUTE(CRA) 2/05/99 142 (H) CRA RPT 5DP 1NR 2/05/99 142 (H) DP: DYSON, MORGAN, HARRIS, MURKOWSKI, 2/05/99 142 (H) HALCRO; NR: KOOKESH 2/05/99 142 (H) ZERO FISCAL NOTE (ADM) 1/22/99 2/05/99 142 (H) REFERRED TO JUDICIARY 3/15/99 (H) JUD AT 1:00 PM CAPITOL 120 3/15/99 (H) HEARD AND HELD 3/15/99 (H) MINUTE(JUD) 3/17/99 (H) JUD AT 1:00 PM CAPITOL 120 BILL: HJR 3 SHORT TITLE: CONST. AM: WILDLIFE INITIATIVES SPONSOR(S): REPRESENTATIVES(S) BUNDE Jrn-Date Jrn-Page Action 1/19/99 16 (H) PREFILE RELEASED 1/8/99 1/19/99 16 (H) READ THE FIRST TIME - REFERRAL(S) 1/19/99 16 (H) RESOURCES, JUDICIARY, FINANCE 1/27/99 (H) RES AT 1:00 PM CAPITOL 124 1/27/99 (H) HEARD AND HELD 1/27/99 (H) MINUTE(RES) 2/01/99 (H) RES AT 1:00 PM CAPITOL 124 2/01/99 (H) HEARD AND HELD 2/01/99 (H) MINUTE(RES) 2/05/99 (H) RES AT 1:00 PM CAPITOL 124 2/05/99 (H) MINUTE(RES) 3/03/99 (H) RES AT 1:00 PM CAPITOL 124 3/03/99 (H) MOVED OUT OF COMMITTEE 3/03/99 (H) MINUTE(RES) 3/05/99 357 (H) RES RPT 2DP 2NR 1AM 3/05/99 357 (H) DP: MORGAN, HARRIS; NR: KAPSNER, MASEK; 3/05/99 357 (H) AM: OGAN 3/05/99 357 (H) FISCAL NOTE (GOV) 3/05/99 358 (H) REFERRED TO JUD 3/17/99 (H) JUD AT 1:00 PM CAPITOL 120 BILL: HJR 7 SHORT TITLE: CONST AM: INITIATIVE/REFERENDUM PETITIONS SPONSOR(S): REPRESENTATIVES(S) WILLIAMS Jrn-Date Jrn-Page Action 1/19/99 17 (H) READ THE FIRST TIME - REFERRAL(S) 1/19/99 17 (H) STATE AFFAIRS, JUDICIARY, FINANCE 2/11/99 (H) STA AT 8:00 AM CAPITOL 102 2/11/99 (H) HEARD AND HELD 2/11/99 (H) MINUTE(STA) 2/18/99 (H) MINUTE(STA) 2/19/99 (H) STA AT 3:30 PM CAPITOL 102 2/19/99 (H) MINUTE(STA) 2/23/99 (H) STA AT 8:00 AM CAPITOL 102 2/23/99 (H) HEARD AND HELD 2/23/99 (H) MINUTE(STA) 2/25/99 (H) STA AT 8:00 AM CAPITOL 102 2/25/99 (H) MOVED OUT OF COMMITTEE 2/25/99 (H) MINUTE(STA) 2/26/99 318 (H) STA RPT COMMITTEE SUBSTITUTE(STA) 3DP 2DNP 1AM 2/26/99 318 (H) DP: JAMES, WHITAKER, HUDSON; 2/26/99 318 (H) DNP: SMALLEY, KERTTULA; AM: OGAN 2/26/99 318 (H) FISCAL NOTE (GOV) 2/26/99 318 (H) REFERRED TO JUD 3/05/99 377 (H) COSPONSOR(S): DAVIES 3/12/99 444 (H) COSPONSOR REMOVED: DAVIES 3/17/99 (H) JUD AT 1:00 PM CAPITOL 120 BILL: HJR 25 SHORT TITLE: CONST. AM: FISH & WILDLIFE INITIATIVES SPONSOR(S): REPRESENTATIVES(S) OGAN Jrn-Date Jrn-Page Action 3/08/99 389 (H) READ THE FIRST TIME - REFERRAL(S) 3/08/99 390 (H) RES, JUD, FINANCE 3/15/99 (H) RES AT 1:00 PM CAPITOL 124 3/15/99 (H) MOVED OUT OF COMMITTEE 3/15/99 (H) MINUTE(RES) 3/16/99 467 (H) RES RPT 5DP 3NR 3/16/99 467 (H) DP: OGAN, WHITAKER, HARRIS, BARNES, 3/16/99 467 (H) MASEK; NR: SANDERS, KAPSNER, MORGAN 3/16/99 467 (H) FISCAL NOTE (GOV) 3/16/99 467 (H) REFERRED TO JUD 3/17/99 (H) JUD AT 1:00 PM CAPITOL 120 BILL: HB 103 SHORT TITLE: LIABILITY RELATING TO FIREARMS SPONSOR(S): REPRESENTATIVES(S) DYSON, Austerman Jrn-Date Jrn-Page Action 2/19/99 260 (H) READ THE FIRST TIME - REFERRAL(S) 2/19/99 260 (H) CRA, JUDICIARY 2/24/99 308 (H) COSPONSOR(S): AUSTERMAN 3/09/99 (H) CRA AT 8:00 AM CAPITOL 124 3/16/99 (H) CRA AT 8:00 AM CAPITOL 124 3/16/99 (H) MOVED CSHB 103(CRA) OUT OF COMMITTEE 3/16/99 471 (H) CRA RPT COMMITTEE SUBSTITUTE(CRA) NT 5DP 2NR 3/16/99 471 (H) DP: DYSON, HALCRO, HARRIS, MORGAN, 3/16/99 471 (H) MURKOWSKI; NR: JOULE, KOOKESH 3/16/99 471 (H) ZERO FISCAL NOTE (CRA) 3/16/99 471 (H) REFERRED TO JUDICIARY 3/17/99 (H) JUD AT 1:00 PM CAPITOL 120 WITNESS REGISTER GAIL VOIGTLANDER, Assistant Attorney General Special Litigation Section Civil Division Department of Law 1031 West 4th Avenue, Suite 200 Anchorage, Alaska 99501-1994 Telephone: (907) 269-5100 POSITION STATEMENT: Testified on HB 57. MICHAEL GATTI, Attorney Matanuska-Susitna Borough; and Member, Alaska Municipal League 350 East Dahlia Palmer, Alaska 99645 Telephone: (907) 745-9679 POSITION STATEMENT: Testified on HB 57. CORY WINCHELL, Administrative Assistant to Representative Pete Kott Alaska State Legislature Capitol Building, Room 118 Juneau, Alaska 99801 Telephone: (907) 465-3777 POSITION STATEMENT: Provided a cross-analysis of HJR 3, HJR 7, and HJR 25. REPRESENTATIVE CON BUNDE Alaska State Legislature Capitol Building, Room 501 Juneau, Alaska 99801 Telephone: (907) 465-4843 POSITION STATEMENT: Sponsor of HJR 3. REPRESENTATIVE BILL WILLIAMS Alaska State Legislature Capitol Building, Room 502 Juneau, Alaska 99801 Telephone: (907) 465-3424 POSITION STATEMENT: Sponsor of HJR 7. REPRESENTATIVE SCOTT OGAN Alaska State Legislature Capitol Building, Room 128 Juneau, Alaska 99801 Telephone: (907) 465-3878 POSITION STATEMENT: Sponsor of HJR 25. DAVID G. KELLEYHOUSE, Representative Alaska Outdoor Council P.O. Box 81452 Fairbanks, ALASKA 99708 Telephone: (907) 455-7882 POSITION STATEMENT: Testified in support of CSHJR 25(JUD). LAURA SKAER, Executive Director North West Mining Association Address not provided Telephone: (509) 624-1158 POSITION STATEMENT: Testified in support of HJR 3. HOLLY CARROLL 1085 Coppet Street Fairbanks, Alaska 99709 Telephone: (907) 474-0213 POSITION STATEMENT: Testified in opposition to HJR 3, HJR 7, and HJR 25. JIM LEVINE Box 1075 Homer, Alaska 99603 Telephone: (907) 235-4190 POSITION STATEMENT: Testified in opposition to HJR 3, HJR 7, and HJR 25. BOB GREEN, President Alaska Frontier Trappers Association 951 Bunker Hill Wasilla, Alaska 99654 Telephone: (907) 376-2621 POSITION STATEMENT: Testified in support of HJR 25. DOUG YATES, Representative Alaskans For Common Ground P.O. Box 221 Ester, Alaska 99725 Telephone: (907) 479-8300 POSITION STATEMENT: Testified in opposition to HJR 3, HJR 7, and HJR 25. MIKE YOURKOWSKI 3059 Kachemak Drive Homer, Alaska 99603 Telephone: (907) 235-2628 POSITION STATEMENT: Testified in opposition to HJR 3, HJR 7, and HJR 25. MICHELE KECK (PH) Address not provided Telephone: (Not provided) POSITION STATEMENT: Testified on HJR 3, HJR 7, and HJR 25. DICK BISHOP 1555 Guss's Grind Fairbanks, Alaska 99709 Telephone: (907) 455-6151 POSITION STATEMENT: Testified in support of CSHJR 25(JUD). ROD ARNO, President Alaska Outdoor Council P.O. Box 2790 Palmer, Alaska 99645 Telephone: (907) 376-2913 POSITION STATEMENT: Testified in support of CSHJR 25(JUD). MICHELLE WILSON (PH) (Address not provided) Telephone: (Not provided) POSITION STATEMENT: Testified in opposition to HJR 3, HJR 7, and HJR 25. ERIC HOLLAND P.O. Box 73751 Fairbanks, Alaska 99707 POSITION STATEMENT: Testified in opposition to HJR 3; and concern with HJR 7 and HJR 25. KENNY BARBER Box 7330 Palmer, Alaska 99645 Telephone: (907) 745-4446 POSITION STATEMENT: Testified in favor of HJR 25. KATIE KURELLO (PH) Address not provided Telephone: (Not provided) POSITION STATEMENT: Testified in opposition to HJR 3, HJR 7, and HJR 25. BYRON HALEY, President Chitina Dipnetters Association 1002 Pioneer Road Fairbanks, Alaska 99701 Telephone: (907) 456-4426 POSITION STATEMENT: Testified in support of CSHJR 25(JUD). DICK BURLEY, Representative Interior Wildlife Association 1165 Coppet Street Fairbanks, Alaska 99709 Telephone: (907) 474-0188 POSITION STATEMENT: Testified in support of CSHJR 25(JUD). JOEL BENNETT, Co-sponsor Wolf Management Reform Coalition (Proposition 3) 15255 Point Louisa Road Juneau, Alaska 99801 Telephone: (907) 789-1718 POSITION STATEMENT: Testified on HJR 3, HJR 7, and HJR 25. GAIL FENUMIAI, Election Program Specialist Division of Elections Central Office Office of the Lieutenant Governor P.O. Box 110017 Juneau, Alaska 99811-0017 Telephone: (907) 465-4611 POSITION STATEMENT: Testified on the initiative process on behalf of division. ACTION NARRATIVE TAPE 99-13, SIDE A Number 0001 CHAIRMAN PETE KOTT called the House Judiciary Standing Committee meeting to order at 1:12 p.m. Members present at the call to order were Representatives Kott, Green, Rokeberg, James, Murkowski, and Kerttula. Representative Croft arrived at 1:15 p.m. HB 57 - STATE & MUNI IMMUNITY FOR Y2K CHAIRMAN KOTT announced the first order of business is HB 57, "An Act relating to immunity for certain claims against the state, a municipality, or agents, officers, or employees of either, arising out of or in connection with the year 2000 date change; and providing for an effective date." CHAIRMAN KOTT announced there are a series of amendments. Number 0273 REPRESENTATIVE ROKEBERG made a motion to adopt Amendment 2. It reads as follows: Page 3: Delete lines 11-16 Insert: (1) "electronic computing device" includes any computer hardware or software, a computer chip, an embedded chip, process control equipment, or other information system that is used to capture, store, manipulate, or process data; Page 3: Delete lines 20-23 Insert: (3) "year 2000 date change" includes processing date or time data from, into and between calendar year 1999 and calendar year 2000, and leap year calculations; in this paragraph, "processing" includes calculating comparing, sequencing, displaying and storing. REPRESENTATIVE GREEN objected for discussion purposes. REPRESENTATIVE ROKEBERG made a motion to remove the first Page 3 paragraph relating to electronic computing devices. REPRESENTATIVE ROKEBERG stated the nature of the amendment is to clarify the definition of a "year 2000 date change". There is confusion among the public about what day it is - January 1, 2000 or January 1, 2001. REPRESENTATIVE GREEN asked Representative Rokeberg whether he really feels that there is a problem. REPRESENTATIVE ROKEBERG replied there is confusion. There is an 18-month period, according to conventional wisdom, starting July 1, 1999 through the entire next year when the millennium problems will arise. The amendment clarifies that the year 2000 date change is January 1, 2000, not January 1, 2001. Number 0548 REPRESENTATIVE GREEN removed his objection. There being no further objection, Amendment 2, as amended, was so adopted. CHAIRMAN KOTT asked Gail Voigtlander from the Department of Law whether she has any objection to Amendment 2, as amended. GAIL VOIGTLANDER, Assistant Attorney General, Special Litigation Section, Civil Division, Department of Law, testified via teleconference from Anchorage. She doesn't have the amendment in front of her, but it sounds like it is just a clarification of a reference to the twenty- and twenty-first centuries. She doesn't have any comment on that raising a legal issue. Number 0757 REPRESENTATIVE CROFT made a motion to adopt Amendment 3 (1-GH1005\A.2, Ford, 2/8/99). It reads as follows: Page 3, line 9, following "others.": Insert "The immunity described in this subsection does not apply unless the state shows by a preponderance of the evidence that the state used good faith efforts to avoid the failure that caused the damages claimed in the civil action." Page 4, line 23, following "municipality": Insert "; the immunity described in this paragraph does not apply unless the municipality shows by a preponderance of the evidence that the municipality used good faith efforts to avoid the failure that caused the damages claimed in the civil action" REPRESENTATIVE GREEN objected. REPRESENTATIVE CROFT explained Amendment 3 simply sets a minimum standard of due diligence before qualifying for immunity. It asks for good faith efforts to avoid the failure that caused the damages claimed in the civil action. Representative Rokeberg's business immunity bill includes a section that says efforts have to be made. The bill now says, "whether you have done zero, a little, a lot you are treated exactly the same." It doesn't comport with individual or organizational responsibilities that ought to be responsible for their actions or inactions. In principle, he is worried about an unqualified immunity, and practically the state has been able to meet the problems so far by using the Risk Management Fund because of the potential harm of lawsuits. He said, "I would submit that if this blanket, unqualified immunity were enacted a year ago, we could not have used that fund because there would be no risk to manage. We would not, even with the best of intentions, you will not get the same level of effort with no carrot or stick that you would with some partial one. It--it--is what encourages people to function people responsibly is some risk that they would be called to task if they don't. And, to pass a bill that says the states, municipalities, all sorts of local and state government units have no more responsibility to act responsibly, I feel practically will lead to the wrong result, and is just a horrible public policy message." Number 0973 REPRESENTATIVE GREEN concurs with the logic of Representative Croft, but is concerned with the phrase, "preponderance of the evidence". He is concerned that the state would open itself up to litigation if a good faith effort can't be shown overwhelmingly to a judge or jury. He suggested removing the phrase, "...preponderance of the evidence that the municipality...", and including the phrase "that it". The new subparagraph would read, "...does not apply unless the municipality showed that it used good faith efforts to avoid...". REPRESENTATIVE JAMES asked Representative Green whether he also has a problem with that same language in the first subparagraph of Amendment 3. REPRESENTATIVE GREEN replied it should be changed in both places. REPRESENTATIVE CROFT stated he has no objection to the friendly amendment to Amendment 3. CHAIRMAN KOTT asked whether there is any objection. There being no objection, it was so amended. Number 1153 CHAIRMAN KOTT stated, it still seems that by creating a preponderance of evidence standard that must be met before an immunity defense is evoked, the burden of proof is being shifted to the governmental body. He wondered whether it would suggest a number of filings whereby the state and municipalities would tend to settle out of court which would be expense for them. Number 1195 REPRESENTATIVE MURKOWSKI referred to United States Senate Bill 96, the year 2000 (Y2K) fix at the federal level, and other legislation from various states, and noted that everything shows there is at a minimum some due diligence and good faith effort that is required in order for immunity to be invoked. The federal bill says, "...an exercise of due diligence and reasonable care to prevent it...". The standard is not going to be difficult to achieve. She is concerned because right now there is just blanket immunity without a requirement to show some good faith. She thinks there is an obligation to include some demonstration of good faith. Number 1315 REPRESENTATIVE KERTTULA concurs with the comments made by Representative Murkowski. She asked, by taking preponderance of evidence out, what will the level of standard be. Number 1353 MS. VOIGTLANDER stated the court will still know what the standard is by interpreting the statute. If the statute doesn't give a standard then the court will have to graft onto what the standard should be. Practically, if a state or municipality has to make a showing of a good faith effort, it would end up in trial because the courts can't grant summary judgment if there are any genuine issues of material fact. And, in a trial, there really isn't any immunity because it is intended to cut off a claim so that the governmental entity doesn't have to incur defense costs. In AS 09.50.250, there are a number of areas where the state is immune, and it can file a motion to have a claim dismissed at the start, and in the worst case scenario go to a summary judgment thereby avoiding the cost of a trial. In addition, the federal bill mentioned by Representative Murkowski is not intended to be directed towards governmental entities, but as a standard for the general business community. Number 1540 REPRESENTATIVE JAMES stated is seems that including the amendment doesn't avoid a lawsuit when that is the intent of the bill. Number 1555 REPRESENTATIVE CROFT stated he is concerned because there isn't a standard of care. He said, "It is nice to have an immunity. It means you don't have to do any efforts. It means you don't have to worry about ever getting called to task for what you did. It'd be nice if this committee could immunize me for everything I ever did because I wouldn't have to worry so much about being sued. The worry though is what makes our innate goodness, but also our worry that we would get called to task for what we do wrong is what makes us perform correctly. And--and, it's--it's very worrisome to give anyone a blank check to act as however they want, but I think it's even more worrisome to give the state and municipalities, the government, the right to do whatever it wants." In response to Chairman Kott's concern, he suggested the following language: The immunity described in this subsection applies only if the affected party shows that the [state/municipality] did not use good faith efforts to avoid the failure that caused the damages claimed in the civil action. Number 1638 REPRESENTATIVE KERTTULA noted that would shift the burden back to the affected party while still having the same standards. It is a more reasonable way to allow immunity while at the same time showing some due diligence. Number 1655 REPRESENTATIVE JAMES agrees with putting the responsibility of evidence onto the party suing. But, this bill refers to the Y2K problem, a universal problem, that no one asked for and no one prepared to get into. It is so expansive that no matter what good faith efforts are made someone may still be harmed. It makes sense to give immunity on this issue because it is so unpredictable. Number 1707 REPRESENTATIVE GREEN said: "Thank you Mr. Chairman. While--while I'm sympathetic to the fact that we need to make sure that municipalities in the state act--exercise some degree, the fact that the court sounds like it's gonna shift into a mode that we don't want, we're talking about having to defend yourself with the preponderance of evidence. I think perhaps, we've misnumbered these, and I would think that Representative Croft's number four would be a little bit better latitude where it says that regard, in order--we have an immunity unless there is gross negligence, if we can ever define that term, which says that you actually really screwed up and therefore, there should be some liability as opposed to, if I can't defend I'm working my fanny off trying to do something but I can't show 51 percent, I'm dead meat. To me, that's too severe because I think everybody is made aware that there is at least potentially a Y2K problem. And, we have just allocated a lot of funds to try and correct that. Would the courts say that whatever ended up being $14 million is an effort to--to avoid or is that a preponderance of evidence or is that just so be it we've got a $23 billion trust fund so this really isn't preponderance of evidence?" Number 1796 REPRESENTATIVE KERTTULA stated, in response to Representative James' comment, the intention of the amendment is for a finding and showing of fact under circumstances where a municipality hasn't done anything thereby allowing the court to go forward. Number 1836 MS. VOIGTLANDER stated, practically, unless the bill says otherwise, the court can't make findings of fact if they are disputed. The party would make a motion for a summary judgment, and if there are material issues of fact, the court couldn't rule resulting in a battle of the experts of due diligence standards. It isn't much different than arguing reasonable efforts in a negligence case. Practically, as long as there are genuine issues of material fact, there is the possibility of going to trial. The more sophisticated the issue, the more complex the litigation. Number 1918 MICHAEL GATTI, Attorney, Matanuska-Susitna Borough; Member, Alaska Municipal League (AML), testified via teleconference from Mat-Su. In general, the AML supports the bill, but the amendments are problematic. A good-faith effort requirement actually guts the immunity. There is already a preference on the part of the Alaska Supreme Court not to grant summary judgment. It has said that negligent cases are usually fact-intensive, therefore, a summary judgment will unlikely be granted. In addition, a trial is very expensive, impacts the public entity being litigated, and distracts the officials that should be serving the public. In addition, it is not unusual for the legislature to grant blanket immunity for certain governmental activities. There is a laundry list of immunities in statute. It is a good idea because public officials engaging in activities are presumed to be acting (indisc.) and there should be protection without fear of litigation. Typically, the burden to show that a public official did not act (indisc.) is on the person charging the wrongdoing, and the good faith and preponderance of evidence language shifts that burden to the municipalities. Furthermore, in reference to Representative Croft's statement, he has legislative immunity. He cited State v. Dankworth and Kerttula v. Abude (ph) as examples of legislative immunity cases. In addition, while the Matanuska-Susistna Borough has been diligently involved in Y2K issues, other communities that don't have the professional resources or money could be unduly penalized devastating their treasuries. In addition, Ms. Voigtlander is correct about the summary judgment issue, It could open the floodgates for litigation. The big law firms in the Lower 48 are gearing up for Y2K litigation. In addition, AS 09.65.070 talks about immunity for 911 emergency services. He wondered whether there would be a conflict between the immunity granted in the bill with a preponderance of evidence and good faith and the immunity to the 911 system. In summary, municipalities act in good faith. Their conduct is to do the best job for their public. They need the help of the legislature so that they don't suffer with lawsuits taking their time away from important public business. Number 2286 REPRESENTATIVE KERTTULA asked Mr. Gatti whether he heard the amendment by Representative Croft shifting the burden back to the affected party. MR. GATTI replied yes. He urged the committee members not to adopt any of the amendments. Number 2326 REPRESENTATIVE KERTTULA asked Mr. Gatti whether he agrees that simply showing good faith is not a very high standard to require municipalities to live up to. MR. GATTI replied municipalities already engage in good-faith conduct. Either way the burden is shifted, the question is passing muster on a summary judgment, and that likelihood is remote. Number 2373 REPRESENTATIVE CROFT made a motion to amend Amendment 3 to read as follows: Page 3, line 9, following "others.": The immunity described in this subsection applies only if the affected party shows that the [state] did not use good fail efforts to avoid the failure that caused the damages claimed in the civil action. Page 4, line 23, following "municipality": The immunity described in this subsection applies only if the affected party shows that the [municipality] did not use good fail efforts to avoid the failure that caused the damages claimed in the civil action. CHAIRMAN KOTT ruled the motion out of order. REPRESENTATIVE CROFT withdrew Amendment 3 and submitted the new text as Amendment 4. Number 2423 REPRESENTATIVE CROFT made a motion to adopt Amendment 4. It reads as follows: Page 3, line 9, following "others.": The immunity described in this subsection applies only if the affected party shows that the [state] did not use good fail efforts to avoid the failure that caused the damages claimed in the civil action. Page 4, line 23, following "municipality": The immunity described in this subsection applies only if the affected party shows that the [municipality] did not use good fail efforts to avoid the failure that caused the damages claimed in the civil action. REPRESENTATIVES JAMES AND GREEN objected. Number 2456 REPRESENTATIVE GREEN suggested including the phrase, "by clear and convincing evidence", after the word "shows" thereby increasing the hurdle for litigation. TAPE 99-13, SIDE B Number 0001 REPRESENTATIVE GREEN continued. There could be rash of small claims court types of litigation. But, having to show clear and convincing evidence might deter some litigation. Number 0024 CHAIRMAN KOTT appreciates raising the threshold because 80 out of the 200 critical functions of government are in compliance with Y2K. Number 0042 REPRESENTATIVE JAMES stated there is nothing wrong with giving immunity for the Y2K problem. Anything else done will not avoid lawsuits or costs. Number 0060 REPRESENTATIVE CROFT stated it changes the standard and puts a significant burden on the affected party. It isn't his first choice, but if it helps put a standard of care so that the state is not absolving in blanket those that have done nothing, he can accept it as a friendly amendment. CHAIRMAN KOTT asked whether there is objection to the friendly amendment. There being none, Amendment 4, as amended, was so adopted. REPRESENTATIVE MURKOWSKI suggested hearing from Ms. Voigtlander regarding Amendment 4, as amended. Number 0104 MS. VOIGTLANDER stated it is a higher standard of proof under civil standards of proof. "Preponderance of evidence" is characterized as 51 percent. "Clear and convincing" is a much higher standard, and is imposed for a finding of punitive damage against an individual. Number 0142 REPRESENTATIVE MURKOWSKI asked Ms. Voigtlander whether it makes the amendment any more acceptable to her. MS. VOIGTLANDER replied it is a policy issue rather than a legal issue. Clear and convincing evidence is easier to work with, but the court may say there are genuine issues of material fact precluding a summary judgment. And, under case law in Alaska on summary judgment, any issue of material fact has to go to trial. Number 0194 REPRESENTATIVE KERTTULA asked Ms. Voigtlander whether it is true that there is a better chance of passing a summary judgment motion if the standard is raised to clear and convincing. MS. VOIGTLANDER replied, as opposed to a lower threshold, yes. CHAIRMAN KOTT noted that the objection is still maintained. A roll call vote was taken. Representatives Green, Murkowski, Croft and Kerttula voted in favor of the motion. Representatives James and Kott voted against the motion. The motion passed by a vote of 4-2. Number 0283 REPRESENTATIVE CROFT made a motion to adopt Amendment 5 (1-GH1005\A.4, Ford, 2/8/99). It reads as follows: Page 2, line 29: Delete "consequences" Insert "damage to property as a result" Page 3, line 1, following "for": Insert "property damage" Page 3, line 3, following "action": Insert "for property damage" Page 3, line 5: Delete "damages" Insert "damage to property" Page 4, line 19, following "is": Insert "an action for property damage that is" Page 5, line 9, following "for": Delete "damages" Insert "damage to property" CHAIRMAN KOTT objected for discussion purposes. REPRESENTATIVE CROFT explained Amendment 5 limits immunity to property damages. In other words, if an inaction, negligence or action causes personal injury, there would still be the ordinary negligent standard, and this immunity would apply in property damages. CHAIRMAN KOTT stated he doesn't see the rationale for not affording blanket immunity and is not clear on what would be reasonable. He said, "How many times would a hospital have to go to a chip maker to determine whether or not it was 'reasonable' in its approach to resolving the Y2K?" CHAIRMAN KOTT asked Ms. Voigtlander to comment on Amendment 5. Number 0369 MS. VOIGTLANDER stated personal injuries can be bodily claims and emotional claims. Many of the states that have grappled with this Y2K issue have also grappled with the difference between bodily and personal injuries. CHAIRMAN KOTT maintained his objection. A roll call vote was taken. Representatives Green, James, Murkowski and Kott voted against the motion. Representatives Croft and Kerttula voted in favor of the motion. The motion failed by a vote of 4-2. Number 0453 REPRESENTATIVE GREEN made a conceptual amendment to include the phrase, "this stuff that we have done in no way diminishes a state or municipality's immunity under any other legal doctrine or provision of law". He doesn't want this kind of statement to be utilized and extracted for some other kind of litigation. Number 0481 REPRESENTATIVE CROFT said he doesn't have an objection, but he isn't sure that it is necessary. CHAIRMAN KOTT asked whether there is objection. There being no objection, it was so adopted. He noted a bill drafter will have to work on the language. Number 0511 REPRESENTATIVE JAMES made a motion to move HB 57, as amended, from the committee with individual recommendations and the attached fiscal note(s). There being no objection CSHB 57(JUD), was so moved from the House Judiciary Standing Committee. CHAIRMAN KOTT called for a brief at-ease at 2:13 p.m., and called the meeting back to order at 2:16 p.m. HJR 3 - CONST. AM: WILDLIFE INITIATIVES HJR 7 - CONST. AM: INITIATIVE/REFERENDUM PETITIONS HJR 25 - CONST. AM: FISH & WILDLIFE INITIATIVES CHAIRMAN KOTT announced the next order of business is HJR 3, Proposing an amendment to the Constitution of the State of Alaska relating to initiatives regarding natural resources belonging to the state; HJR 7, Proposing an amendment to the Constitution of the State of Alaska relating to initiative and referendum petitions; and HJR 25, Proposing an amendment to the Constitution of the State of Alaska relating to a petition for an initiative or referendum regarding fish or wildlife. CHAIRMAN KOTT called on Cory Winchell, staff to Representative Pete Kott, to present a cross-analysis of the three resolutions. Number 0604 CORY WINCHELL, Administrative Assistant to Representative Pete Kott, Alaska State Legislature, noted he is an attorney in the state of Washington and technically he is not a counsel in this jurisdiction. Nevertheless, HJR 3 pertains to only natural resources and requires a two-thirds voter approval to be enacted. HJR 7 pertains to all initiative issues and requires that 10 percent of the votes cast in the previous election must come from 30 house districts. HJR 25 pertains only to fish and wildlife resources and requires that 10 percent of the votes cast in the previous election come from 40 house districts. For HJR 7 and HJR 25 there is no change to passing an initiative; they still require 50 percent plus 1. Number 0699 CHAIRMAN KOTT asked Mr. Winchell whether HJR 3 deals with an initiative once it is on the ballot while HJR 7 and HJR 25 deal with how it gets to the ballot. MR. WINCHELL replied correct. HJR 3 looks for voter approval. Number 0742 REPRESENTATIVE GREEN stated 10 percent of those who voted in the preceding general election in each house district is about 500 to 600 signatures per district. That is not insurmountable. CHAIRMAN KOTT stated at the last election there were 227,156 total ballots cast. Not all of the those were for house members, but 10 percent of those who voted in the preceding general election would be needed to get on the ballot. Two of the resolutions require that number, but it has to be spread around the districts. MR. WINCHELL reiterated that HJR 3 doesn't make any change to the 10 percent requirement, but once an initiative is on the ballot, it requires two-thirds of the votes cast to be adopted. CHAIRMAN KOTT indicated HJR 7 and HJR 25 still require 50 percent plus 1 of the votes cast to be adopted. Number 0819 REPRESENTATIVE JAMES referred to HJR 7 and asked whether one signature in each of the districts in enough or does there have to be a certain amount in each district. MR. WINCHELL replied there has to be at least 10 percent of the ballots cast in 30 districts while still meeting the initial 10 percent threshold. CHAIRMAN KOTT called on Representative Con Bunde, sponsor of HJR 3, to come before the committee. Number 0857 REPRESENTATIVE CON BUNDE, Alaska State Legislature, stated HJR 3 would raise the bar at the end of the initiative process. Alaska is a resource dependent state with past oil paying for 85 percent of the cost of government. He strongly believes that resources should be managed by trained professionals and ideally politics should be kept out. In other states where the legislature has set fish and game limits and seasons, it gets politicized. He said, "We have hired some well-compensated experts who have studied resource management and we really are foolish not to defer to their judgement." Legislators get to hear their judgement via the legislative process; but, unfortunately, the general public is not often privy to their judgement through the initiative process. He has chosen to limit his resolution to natural resources because they are so critical to the state. He doesn't intend to preclude or limit the public process in any way. In fact, he thinks the resolution elevates the public's ability to be involved in the initiative process. Others might argue that other areas are important, such as civil rights, but that's not his role to discuss at this point. He has confidence in the voters and wants to keep their access open, but the influence of the media on behavior is considerable. He cited the Superbowl as an example where commercials were sold for millions of dollars because the people who purchase the exposures understand the incredible impact on public perception and the media. The vast majority of Alaskans have access to televisions, Internet, radios and are susceptible to influence by the media. He is also very aware of the rural-urban split, another reason for introducing the resolution. One-half of the population lives in Anchorage and conceivably an initiative could be passed with virtually the support of one city, therefore, raising the bar to two-thirds requires a broader participation statewide. According to other states that have raised the requirements of participation in the initiative process, the courts, including the U.S. Supreme Court, have said that it is not constitutional. He thinks and according to testimony from Tam Cook from Legislative Legal Counsel, HJR 3 meets the requirements of the Alaska Supreme Court. He has no guess as to what the U.S. Supreme Court would say, however. The resolution simply elevates the need to educate voters. Past folks who have worked on initiatives have admitted to exaggeration, distortion and deception to encourage voters to sign. He said, "I think by requiring a higher level of acceptance in the public, a higher level of pass, that we can't--we're less likely to have folks who will go to a momentary majority to... Without stepping on anyone's toes, I would point at the last gubernatorial election as to how some folks could under influence a great deal of money perhaps come to a momentary conclusion that they later regretted or changes their opinion on." The resolution will require more factual information and fewer of these feel-good, quick distortion kinds of arguments. He noted that some states have been negatively affected by "ballot box biology." He asked the committee members to consider whether 50 percent plus 1 of the voters makes a very definitive decision about commercial fishing, hunting, specific means or methods of hunting, oil issues, timber, mining, etc. Is that truly a reflection of the will of the people when 49.9 percent of the people might be opposed to it? Is this indeed an opportunity to disenfranchise a large portion of the voters? Now, most issues do not pass with that close of a margin, but it is a possibility. He stressed that he is not trying to exclude the public in the initiative process, but by raising the bar he encourages public participation. He said, "Certainly, if I support an issue and I need to know I get--need to get two-thirds of the voters to support this issue, I agree to work even harder and more diligent. And, of course if I oppose the issue, I may work very hard because I realize I do have an opportunity of stopping it. So I think it cuts both ways." In reference to those who don't want the current system changed, an initiative would have to be approved by the present system. If those who oppose it have a high level of confidence in the current system, then they have no reason to fear this resolution. The public will ultimately decide. In conclusion, he thinks the bar should be raised for something as important as the allocation of natural resources. Number 1400 REPRESENTATIVE GREEN asked Representative Bunde what percentage of initiatives pass with a two-thirds vote versus a simple majority. REPRESENTATIVE BUNDE replied he doesn't know of any natural resource initiative that has passed with a two-thirds vote. That might have been because only 50 percent was needed, however. Number 1436 REPRESENTATIVE MURKOWSKI asked Representative Bunde whether there is a definition of what applies to natural resources. REPRESENTATIVE BUNDE replied at the state constitutional convention "natural resources" was discussed as those resources found in their natural state. It might be something that the courts end up deciding. For the record, his definition of natural resources is those resources that are found in a natural state: land, water, animals and fish. Number 1516 REPRESENTATIVE CROFT referred to a list of initiatives and asked Representative Bunde which of the initiatives would he classify as natural resources. REPRESENTATIVE BUNDE cited the Disposal of State Lands, and Personal Consumption of Fish and Game initiatives as examples. He noted that this will not affect the subsistence proposal. REPRESENTATIVE CROFT asked Representative Bunde whether the Claiming State Ownership of Federal Land initiative would be classified as natural resources. REPRESENTATIVE BUNDE replied it sounds a little ambiguous. He further cited Relating to Same Day Airborne Hunting of Certain Animals, Relating to Trapping Wolves with Snares, and Repeal of Limited Entry as examples of natural resource initiatives. In spite of the importance of natural resources to Alaska, there have been a minimal number of natural resource initiatives addressing management and allocation. Number 1648 REPRESENTATIVE CROFT noted the only initiatives that would have been affected since statehood are Relating to Same Day Airborne Hunting of Certain Animals and Disposal of State Lands. REPRESENTATIVE BUNDE stated it still would not have guaranteed failure or passage of either one of those initiatives because the ground rules would have been different. Number 1711 REPRESENTATIVE KERTTULA asked Representative Bunde whether this should be part of a constitutional convention. REPRESENTATIVE BUNDE replied, according to a four-prong test from the Alaska Supreme Court, this meets the criteria for an initiative. CHAIRMAN KOTT called on Representative Bill Williams, sponsor of HJR 7, to come before the committee. Number 1767 REPRESENTATIVE BILL WILLIAMS, Alaska State Legislature, explained he introduced HJR 7 to ensure that there is statewide support before putting an initiative before the voters, particularly because population dispersements allow sponsors to get the required signatures from one region or community. He is concerned that the whole of Alaska will suffer with a limited perspective of an initiative on a ballot. House Joint Resolution 7 ensures that people from Saxman to Barrow are able to have input. He noted in 1998 there were only 48 signatures from Ketchikan for the Relating to Trapping Wolves With Snares initiative, 28 for the Relating to Requiring a Term Limits Pledge for Candidates initiative, 34 for the Relating to Allowing Medical Use of Marijuana initiative, 24 for the Relating to Requiring Government to Use English initiative, and 31 for the Relating to Prohibiting Billboards initiative. Number 1930 CHAIRMAN KOTT stated requiring 10 percent to come from various districts would give greater representation. Given that there are initiatives that should pass and those that shouldn't pass, he asked Representative Williams what would be the public reaction on an initiative for legislative term limits, for example. REPRESENTATIVE WILLIAMS replied he doesn't know how to answer that question. He noted that the initiative article was put in the constitution when there wasn't any telecommunications like today - faxes, telephones, etc. - and most of the population was in Southeast. This resolution wouldn't make it more difficult; he is just trying to get a broad statewide perspective. Number 2120 CHAIRMAN KOTT noted it would be more difficult in the sense that someone from New York couldn't stand outside the Anchorage International Airport to collect signatures. It would require going to the various districts. Number 2142 REPRESENTATIVE BUNDE commented that he doesn't see any competition between the three approaches or whether one would preclude the other. He also doesn't see a problem with all three going through the process so that the public has a choice. Number 2199 CHAIRMAN KOTT asked Representative Williams whether the 10 percent required from the individual house districts would come from the total votes cast or the total votes cast for the house member in a particular district. REPRESENTATIVE WILLIAMS replied it would come from the house district. There would have to be a total of 10 percent of the votes cast throughout the state and 10 percent from each house district. For example, in Ketchikan about 6,300 votes were cast, therefore, 630 signatures would be needed. CHAIRMAN KOTT asked Representative Williams whether the 6,300 figure was votes cast for the house member or total votes cast. REPRESENTATIVE WILLIAMS replied total votes cast. CHAIRMAN KOTT noted there is a difference between the total votes cast for the state versus the total votes cast for the house members. In 1998, 227,156 votes were cast statewide, and 199,000 votes were cast for house members. REPRESENTATIVE WILLIAMS suggested asking the Division of Elections. Number 2353 REPRESENTATIVE MURKOWSKI asked Representative Williams how long is allowed to gather signatures for an initiative petition. REPRESENTATIVE WILLIAMS replied probably one to two years. It took two years to get the Relating to Requiring a Term Limits Pledge for Candidates initiative on the ballot. He suggested asking the Division of Elections for specifics. REPRESENTATIVE MURKOWSKI likes the idea of getting support from all areas of the sate, but she is concerned that a tight window might cause it to be difficult, especially because many of the initiatives are grassroots efforts. REPRESENTATIVE WILLIAMS noted there were signatures from every district for the Relating to Trapping Wolves With Snares initiative. He doesn't think a time limit would hurt. Number 2482 REPRESENTATIVE CROFT referred to the 1998 initiatives... TAPE 99-14, SIDE A Number 0001 REPRESENTATIVE CROFT continued. None of the 1998 initiatives would have been approved under Representative Williams' resolution. CHAIRMAN KOTT noted that is correct. REPRESENTATIVE CROFT asked Representative Williams whether any of the initiatives since statehood would have been approved. REPRESENTATIVE WILLIAMS suggested asking the Division of Elections. CHAIRMAN KOTT stated he doubts seriously that one would have been approved. Number 0130 REPRESENTATIVE KERTTULA asked Representative Williams whether there is any state that allows an electronic filing. She is concerned about the 11 house districts that can't be reached except by plane. REPRESENTATIVE WILLIAMS replied he doesn't know and hasn't looked into it. CHAIRMAN KOTT noted that most of those districts have telephones and somebody could phone out there and organize a signature collector. It should be looked at since this is the electronic age. Number 0188 REPRESENTATIVE WILLIAMS noted that many people go to malls, basketball games, airports, or any other place that people gather to collect signatures. It is so much easier to go to those places then to go to Saxman, for example. CHAIRMAN KOTT called on Representative Scott Ogan, sponsor of HJR 25, to come before the committee. CHAIRMAN KOTT announced there is a proposed committee substitute for HJR 25 and called for a motion to adopt it. Number 0302 REPRESENTATIVE GREEN made a motion to adopt proposed committee substitute for HJR 25 (1-LS0575\D, Utermohle, 3/17/99). There being no objection, it was so adopted. Number 0339 REPRESENTATIVE SCOTT OGAN, Alaska State Legislature, stated the proposed committee substitute is the result of testimony from David Kelleyhouse of the Alaska Outdoor Council (AOC). The approach of simply relying on the authority of Article VIII, section 2 of the state constitution made a lot of sense to him. It's clear that the legislature has the authority to manage the natural resources. He has always felt that management of fish and wildlife issues from the ballot box is bad public policy. The proposed committee substitute would place a restriction on putting fish and wildlife initiatives on the ballot thereby eliminating contentious fights and outside interests. For example, the Alaska Outdoor Council raised a quarter of a million dollars last year to fight the Relating to Trapping Wolves With Snares initiative. He noted that HJR 25 has the support of the AOC, several Native organizations, rural residents and users of the resources. He believes it would mitigate a legal challenge because of the authority granted to the legislature in Article VIII, section 2 of the state constitution. It is not a revision of the constitution; it is an honest approach. According to the minutes of the constitutional convention, it appears that there was a lot of discussion on making sure that the initiative process was available to the people because of the rural folks who had a hard time getting to the capital. But, it can be argued that Alaska is different now. While the capital is not as accessible, it's certainly far more accessible than when the constitution was first crafted, there is electronic media and teleconferencing now enabling the people to testify. Number 0695 REPRESENTATIVE CROFT asked Representative Ogan what is the common goal of all three joint resolutions. REPRESENTATIVE OGAN replied the common goal is to simply raise the standard of what initiatives get to a ballot. House Joint Resolution 25 takes a different course by simply recognizing the authority of the legislature given to it by the constitution. Number 0732 REPRESENTATIVE CROFT asked Representative Ogan whether he reads Article VIII, section 2 of the state constitution as saying it's the legislature's job and not others. REPRESENTATIVE OGAN replied it says, "The legislature shall provide for the utilization, development, and conservation of all natural resources belonging to the State,...". REPRESENTATIVE CROFT noted it could be read as a description of how it is done for the maximum benefit of the people. He reads it as a limitation on how it can be used, that it must be used for the maximum benefit of the people. Representative Ogan reads it as a delegation of the sole authority in the natural resource area. REPRESENTATIVE OGAN believes it is a delegation of authority and with that authority the legislature "does it" for the maximum benefit of the people. He would argue managing fish and wildlife by the ballot box doesn't always take into consideration the maximum benefit of all the people. REPRESENTATIVE CROFT asked Representative Ogan whether letting the people "do it" violates Article VIII, section 2 of the state constitution. REPRESENTATIVE OGAN replied yes. Number 0838 REPRESENTATIVE GREEN asked Representative Ogan whether requiring all 40 house districts to have 10 percent would stifle any future petitions. He wondered whether that would allow one or two districts the prerogative to veto the will of the majority of the state. REPRESENTATIVE OGAN replied it is not an issue now that the proposed committee substitute has been adopted. CHAIRMAN KOTT noted the proposed committee substitute would not change any of the processes involved. It would require the same 10 percent to get an initiative to the ballot and the same 50 percent plus 1 to approve it. Number 0916 REPRESENTATIVE KERTTULA asked Representative Ogan whether after the amendment there wouldn't be an initiative process concerning resource issues and those would be left to the legislature. REPRESENTATIVE OGAN replied it would eliminate the possibility of a fish and wildlife initiative of ever being put on a ballot. REPRESENTATIVE KERTTULA asked Representative Ogan whether he has had the chance to ask Legislative Legal Counsel's opinion since this is such a broad, sweeping change to the constitution. REPRESENTATIVE OGAN replied Article XI, section 7 of the state constitution already restricts certain items to be defined by an initiative. The resolution simply adds a category to that. Number 1015 REPRESENTATIVE KERTTULA said she would like to see what Legislative Legal Counsel thinks about it. Taking the right to vote off the table completely seems like a broad enough change to require going back to a constitutional convention. She would defer to Legislative Legal Counsel's opinion, however. CHAIRMAN KOTT opened the meeting up to the teleconference network. Number 1111 DAVID G. KELLEYHOUSE, Representative, Alaska Outdoor Council (AOC), testified in Juneau in support of CSHJR 25(JUD). He commended Representatives Bunde, Williams and Ogan for their resolutions. He was involved with the Coalition For the Alaskan Way of Life during the last election. Alaska is turning into an urban state, and it's possible for outside groups such as Friends of the Animals Foundation to target through electronic media and piecemeal this state's way of life disadvantaging rural people, hunters and fishers. The AOC believes that Article VIII of the state constitution is unique and the legislature has done a fine job managing the natural resources over the last four decades. It has been very responsible in managing and delegating resources to the Board of Fisheries and Board of Game. The AOC prefers a more straightforward approach in recognizing fish and game as public trust resources that are best managed by the current process - the legislature, boards and Department of Fish and Game. He referred to a communication from the Friends of Animals Foundation indicating that since they lost at the last election they will keep coming back until they get what they want. It is just a matter of time before the Alaskan way of life comes to an end. The AOC can't generate the amount of resistance that it did last year every other year. It just about bled it dry. The Friends of the Animals Foundation will prevail. They have multi-millions of dollars to work with and they have already said that they are aiming at Alaska. He reiterated the AOC would urge for a straightforward approach. If the legislature were to put this amendment on the ballot, it could run one more campaign with Native and other outdoor organizations. He urged the committee members to pass CSHJR 25(JUD). The other resolutions wouldn't harm the AOC in anyway; it just believes that HJR 25 is very honest. Number 1342 LAURA SKAER, Executive Director, North West Mining Association, testified via teleconference from Washington in support of HJR 3. The association is a 104 year old trade association representing the hard rock mining industry throughout the Western United States with about 200 members in Alaska, as well as members throughout the U.S. and Canada. It is the largest mining association in the U.S. The association supports HJR 3 based on the experience of two initiatives in Montana in 1996. One was denominated as a clear water initiative, but the language didn't amend any of the state's clean water laws. It amended the state's metal mining Act that would have imposed standards to ban any future metal mining operations. If it had passed all municipal water systems would have failed the new standard, except one. It took a tremendous effort from the mining industry to educate the people to turn the support around. Another initiative purported to protect individuals from corporate money unfairly tilting the ballot box. Interestingly, 60 percent of the money to support it came from outside the state of Montana even though it was championed as an individual rights initiative. It passed by a 52 to 48 percent margin. As a result, the same group that pushed the water quality initiative came back and narrowed the focus to ban the use of cyanide chemicals in open pit gold and silver mines. The members promoting the initiative were quoted several time as saying that cyanide really isn't the issue, but it gets the voters' attention. The real purpose was to stop large scale metal mining. And, because of the ban on corporate participation, the mining industry was essentially muzzled. That ban was reversed in court and the mining industry was able to close the gap on public opinion in a short time. As a result, an industry that has been a simple part of Montana's heritage and development has been banned by a 52 to 48 percent of the vote in a tainted election. The organization supporting the initiative has announced that it intends to take its experience to other Western mining states. The counties now in Montana are realizing that their source of revenue will be depleted and eventually devastated. More importantly, while the signatures were being pushed, the mining industry begin to realize it didn't want to invest in the state, especially since it only takes 50.1 percent of the voters to ban it in the future. It needs more security for its investments. In conclusion, she announced that she has visited Alaska and several of its mining industries and believes that HJR 3 is an excellent way to ensure Alaska's natural resources are managed by Alaskans, not outside influences and groups. Number 1820 REPRESENTATIVE KERTTULA asked Ms. Skaer how many times she has been in Alaska and for a total of how many days. MS. SKAER replied 3 times for a total of 11 days. REPRESENTATIVE KERTTULA asked Ms. Skaer whether she has ever been to Juneau. MS. SKAER replied no. REPRESENTATIVE KERTTULA stated she doesn't know the human death toll from cyanide, but in Juneau there have been fish killed. She asked Ms. Skaer to clarify that there have been deaths from other species. MS. SKAER replied she is aware that there have been some cyanide spills that have resulted in damage to aquatic resources. Number 1892 HOLLY CARROLL testified via teleconference from Fairbanks in opposition to HJR 3, HJR 7 and HJR 25. This process is going to lock out a lot of Alaskans from their only check on the legislature. As Representative Ogan said, the legislature does have the power over the resources. It also has two additional checks: to amendment any ballot initiative and to repeal within two years any ballot initiative. That's plenty of power. In addition, ballot initiatives are already very expensive and driving up the cost won't help the rural populations. As a result, initiative groups will have to enlist the help of outside organizations to be able to afford an effort when outside organizations don't vote on the final ballot. In reference to media campaigns that have mislead the public, it is true for both sides of an issue. The resolutions won't clarify that. They will only take the public out of the process. In conclusion, she reiterated all three of the bills damage the process and lock Alaskans out of the initiative process when it is the only check on the legislature. Number 2055 JIM LEVINE testified via teleconference from Homer in opposition to HJR 3, HJR 7 and HJR 25. He took time off work today in order to testify because he feels very strongly about the initiative process that the Founding Fathers provided in the Alaska Constitution. The resolutions will effectively eliminate the initiative process for the voice of the average Alaskan. In the 40 years since statehood less than 30 initiatives have been placed on the ballot and less than 20 have actually passed into law. The process is already difficult enough and to make it more difficult would allow groups from outside to get an initiative on the ballot effectively shutting out both rural and urban citizens. He personally believes in the value of the state government process, but fewer and fewer citizens agree. More and more people feel disenfranchised believing that government doesn't represent their ideals, and that it is a waste of time to even try. Making the initiative process an impossible goal would disenfranchise even more citizens. He doesn't agree with all the initiatives that have been circulated or voted on, but he does believe in the right of citizens to petition their government. He said, "If you believe in government by the people for the people, these bills are stopping the heart of 'by the people'. Please don't allow any of these bill to go forward." Number 2149 CHAIRMAN KOTT added that the three propositions require the existing system for any of them to be adopted. Number 2170 BOB GREEN, President, Alaska Frontiers Trapper Association, testified via teleconference from Mat-Su in support of HJR 25. The association is concerned that large, urban areas influence legislation restricting game management when the majority of the areas aren't able to respond. The law would benefit the state as a whole. Number 2234 DOUG YATES, Representative, Alaskans For Common Ground, testified via teleconference from Fairbanks in opposition to HJR 3, HJR 7 and HJR 25. They show a lack of trust of Alaska's citizens. He asked, why would the Republican leadership work to make it more difficult for citizens to petition its government? Why would Republicans make it more difficult for citizens to participate in public decisions? There are already mechanisms within the law that allow the legislature to deal with legitimate problems with initiative or referendum created legislation. It appears that the Republican leadership fears its citizens, and wishes to remove the mechanism that promote inclusive political action. A free and open government should not need to create more obstacles for a responsive government. These resolutions are an affront to all Alaskans. Number 2298 REPRESENTATIVE BUNDE noted that none of the resolutions are coming from the Majority leadership. Number 2327 MIKE YOURKOWSKI testified via teleconference from Homer in opposition to HJR 3, HJR 7 and HJR 25. It is easy for legislators to put a constitutional amendment on the ballot, but virtually impossible for the citizens of Alaska. The resolutions are coming from a limited perspective and the cure is worse than the disease. As a city councilman, he loves getting input from his constituents and pays close attention to them. The resolutions will make the low voter turnout worse because they will disenfranchise a large portion of the population. In regards to HJR 25, the existing restrictions are to maintain the separation of powers between the branches of government, not to restrict the issues. Restricting issues opens the doors up to special interests and deprives the citizens of their power. CHAIRMAN KOTT noted the theory behind HJR 3 is to bring out additional voters who would have otherwise stayed home. Number 2437 MICHELE KECK (PH) testified via teleconference from Anchorage on HJR 3, HJR 7 and HJR 25. She has been very involved in the signature gathering phase of the initiative process. She has coordinated both paid and volunteer signatures. Changing the rules for initiatives is tinkering with an important part of the public process. Ballot access should not be limited by making the signature requirements harder. It's the same as putting more restrictions on who can run for office. An issue is really fought during the campaign phase, not the signature phase, and making it harder effects everybody in the state. It will take it right out of the hands of Alaskan citizens and make it accessible to outside interests. TAPE 99-14, SIDE B Number 0001 MS. KECK (PH) continued. In addition, a popular place to get signatures was in post offices, but due to a national ruling that is not possible now. She is concerned about several of the districts because even the private sector that owns the malls and stores are preventing people from petitioning there as well. In addition, going door-to-door to get signatures like candidates would require going to about 60,000 to 70,000 doors in order to get 10 percent. That is not realistic. The best way to defeat an initiative is in the campaign, not by eliminating signatures. There is already a safety valve in place because the legislature can change an initiative after two years. In conclusion, regardless of the issue she likes to err on the side of keeping the current public system in place which gives everyone an equal opportunity to put something on the ballot. Number 0069 CHAIRMAN KOTT reiterated that only one of the resolutions really change the way signatures are collected. It is more difficult after giving to take it back after two years. Number 0089 DICK BISHOP testified via teleconference from Fairbanks in support of CSHJR 25(JUD). He appreciates the legislature's attention to the initiative process. It is a process that has great public appeal, but subject to great abuse. He prefers the committee substitute to HJR 25. It really addresses the problem by removing spurious initiatives that are hoisted upon the people. At a recent annual meeting of the Alaska Outdoor Council, the plurality of the members voted in favor of similar language that Representative Ogan submitted. It gets to the issue. A current fad with fish and game management is an end-run on the public, legislative and board processes with an initiative. He said, "If you have an (indisc.) to appeal and have enough money to buy enough 30 second sound bites, you have a darn good chance of winning because there is no law requiring truth in advertising and whoever can buy the most 30 second sound bites on an initiative campaign or on a political campaign, I suppose for that matter, has a very good chance of winning." It was obvious in the last couple of elections, the initiatives relating to game management were not very straightforward. There was a great deal of misleading and inflammatory imagery that exploited the well-meaning, but mostly uninformed general public. There is no way the initiative process is effective in managing a common resource property - fish and wildlife. The framers of the state constitution took great pains to provide the basis for sound management and since then the legislatures have worked over the years to build on that foundation. He strongly urged the legislature to pass CSHJR 25(JUD) to prevent spending thousands of dollars and hours fending off initiatives that are anti-hunting, -management, -trapping, and -fishing every two years. Number 0252 ROD ARNO, President, Alaska Outdoor Council, testified via teleconference from Mat-Su in support of CSHJR 25(JUD). Fish and game management is both an art and science. There is a public and board process, and the Department of Fish and Game gets its authority from the Administrative Procedure Act. The public process would not be hampered one bit with the passage of HJR 25. The two recent wildlife initiatives are the types of activities that special interest groups are able to argue artfully before the public without having the science behind the argument. Number 0371 MICHELLE WILSON (PH) testified via teleconference from Anchorage in opposition to HJR 3, HJR 7 and HJR 25. They are inherently unconstitutional. They are an attack on the public initiative process and bad public policy. If the initiative requirements are changed then the requirements for constitutional amendments should also be changed. For example, the same-sex marriage amendment that just passed should also have gotten 10 percent of the voters in all 30 districts. Why should the public process be limited when the legislative ballot process for ballot measures would remain the same? The discussion should be on how to manage campaign financing once an initiative reaches a ballot, not reform of the initiative process. She disagrees with the idea of electronic media because the one-on-one contact with the public is the best part of the process. Number 0492 CHAIRMAN KOTT noted that the resolutions are proactive, not retroactive. They would not affect the results of initiatives that have already passed. Number 0510 ERIC HOLLAND testified via teleconference from Fairbanks in opposition to HJR 3. His daughter likes to change the rules in the middle of a game, especially when it isn't going well for her. Similarly, last session some of the legislators wanted to change the constitutional rules for reapportionment because they feared Tony Knowles would get reelected. Now, Representative Bunde and others want to make it necessary for the two-thirds Majority to adopt an initiative regarding natural resources. Are they afraid of the majority of Alaskans? Are they trying to lock up control of the economy? There are valid reasons for the development of Alaska's natural resources and there are valid reasons for their conservations. He believes that some of the recent initiatives have been extreme, but stacking the deck against the right for the people to decide for themselves is a violation of the principles of a democratic government. Don't the legislators trust Alaskans to vote for an Alaskan way of life? he asked. Fight fair and square - 50/50. In 1996, the people banned same day airborne wolf control and now SB 74 repeals it two years and one week later. There is already the power to redress an initiative through the public process. In reference to Representative Bunde's comments on trained professionals, the Division of Forestry will not listen to trained fish and game personnel and insists on logging in sensitive salmon spawning areas. In addition, the argument for blasting Anchorage is not very valid. Are we going to make the election of the governor with a two-thirds majority to avoid Anchorage governors? Distortion occurs everywhere so there needs to be a level playing field. Money is generally on the side of pro-development and the biggest money to blanket the airways is through commercials. In addition, it is funny that the woman from Washington who testified earlier blasted outside influence. In reference to Representative Ogan's comment about the legislature's right to manage public resources, the maximum benefit of the people is debatable. Number 0690 KENNY BARBER testified via teleconference from Mat-Su in support of HJR 25. The system works the way it is set right now. As a member of an advisory committee, he spends a lot of time listening to the public and going to the Board of Game meetings. Everybody has the same opportunity to speak and the same amount of time. Number 0747 KATIE KURELLO (PH) testified via teleconference from Anchorage in opposition to HJR 3, HJR 7 and HJR 25. Having worked on the billboard initiative, she feels like she is speaking for the hundreds of Alaskans that she talked to during the campaign who constantly thanked her for giving them the opportunity to vote on the issue. The signature process is working to give people the right to vote. It is not about the actual issue or campaign. It is already very difficult to get an initiative on the ballot, and the billboard initiative clearly demonstrates the need for this process because of the disparity between the vote of the people and the legislation passed by the legislature. Number 0814 BYRON HALEY, President, Chitina Dipnetters Association, testified via teleconference from Fairbanks in support of CSHJR 25(JUD). He is against wildlife management by ballot initiatives. The management of the state's fish and wildlife should be done by the boards and Department of Fish and Game with legislative oversight. The public has input with the boards to change regulations. Number 0864 DICK BURLEY, Representative, Interior Wildlife Association, testified via teleconference from Fairbanks in support of CSHJR 25(JUD). Having served on the Board of Game and having been involved with local advisory committees, he believes that there is an adequate process in place for people to implement changes to fish and game regulations. The people also have the ability to petition the board, if they want to make changes. It is frustrating being a board member when people through an initiative process work on motions and votes using false information and distortions. Number 0960 JOEL BENNETT, Co-sponsor, Wolf Management Reform Coalition (Proposition 3), testified in Juneau on HJR 3, HJR 7 and HJR 25. In response to Representative Bunde's comments, he is having a hard time understanding how raising the bar to a two-thirds majority will produce a higher degree of fact-finding in the initiative process. The degree of fact-finding has to do with the nature of the campaign and the work that goes into it. The coalition realized an effective campaign would have to be waged in various geographical regions of the state in order to have the support of the people in those regions. He has sympathy for Representative Williams' concerns, but 10 percent is an unreasonable number of signatures to have to gather in rural areas. The coalition would have had to have gotten 1,000 signatures in District 39 to ensure 400 signature, the 10 percent required in HJR 7. Those efforts in the Yukon-Kuskokwim Delta area would have been sp expensive, time and cost prohibitive that it would have been a great burden. A higher percentage may be a reasonable course to follow, but it should be discussed by a large number of people like a constitutional convention for many minds to look at the pros and cons. Representative Ogan, he believes, is trying to accomplish something that he didn't agree with. He called it sour grapes. He doesn't like Proposition 3, he doesn't like that statute, and he clearly wants to engineer something that would prohibit fish and game matters to be taken up by initiative again. It is foul and the people will see through it. A subject matter can't be singled out. There has to be a level playing field. It seems like the worst case of discrimination. The state supreme court was clear when it said that the legislature does not have the sole authority because of the initiative article in the constitution. That article enumerates what's prohibited, and by implication anything that is not on the list is permitted. In response to the distortion issue, both sides wage campaigns using media to the most effective way possible. It also happens in campaigns for elected officials and legislators. There is simply no way to control that, except to trust the people to sift through and take what is valid and accurate and discard what is not. The ultimate test is in the voting booth when a voter is presented with the clear language of an initiative, as well as the impartial wording from the attorney general in the Official Election Pamphlet. The public is sophisticated enough to understand what is and what isn't distortion. Number 1300 CHAIRMAN KOTT asked Mr. Bennett whether there is a percentage that would be acceptable. MR. BENNETT replied, based on his experience in District 39, even 1 percent or 2 percent is quite a chore. It means that one cannot stand on the street in Anchorage and hope that enough people walk by from District 39, but actually travel out to the district. Certainly, anything above 5 percent is a true burden on the public. Number 1397 REPRESENTATIVE GREEN stated he can understand how it would be difficult to get a representative sample from 30 house districts, but there is no requirement for the signature gathers who cluster around the metropolitan areas to be citizens. They get anywhere from $1 to $5 a signature. As a result, there are a significant number of initiatives that get to the ballot, but fail because the people either don't really know what they're signing or they aren't representative of the state's attitude. He understands trying to reduce the time and money spent on these types of efforts, and asked Mr. Bennett whether he has any suggestions. MR. BENNETT replied the issue of paid signature gathering is a legitimate one. In the case of Proposition 3, there were a percentage of both, and he didn't feel that it was weighted towards the paid signature portion so that it was unfair. Attention could be paid to that issue, however. Sometimes that period of time is short and during the most severe time of the year that without assistance and volunteers, regular Alaskans just simply can't get the number of signatures required. It is a difficult question. It is one that is appropriate for a larger forum. Number 1552 REPRESENTATIVE GREEN stated part of the reason for these types of resolutions is to make it more difficult to get signatures, especially for controversial petitions. A hurdle might do away with some and increase the percentage of those that pass. There seems to be an awful lot of petitions that just don't make it. MR. BENNETT reiterated 10 percent is way too high based on his experience. In addition, there isn't much guidance from the constitutional convention for establishing 10 percent, perhaps it should go to a larger forum. It is a serious matter; it affects basic rights. Number 1674 REPRESENTATIVE JAMES referred to his comment of needing 400 signatures to get 10 percent in District 39, and asked Mr. Bennett whether a ration of 10 to 1 is used for getting signatures or would that just be the case for outlying areas. MR. BENNETT replied, if 400 signatures are needed, it would be foolish to submit less than 700. REPRESENTATIVE JAMES asked Mr. Bennett what number of signatures is achievable with 5 percent or 3 percent or 4 percent. There are approximately 25 urban districts and 15 rural districts and the resolution calls for 30 of the 40 districts. MR. BENNETT replied, considering the efforts of Proposition 3, there wouldn't have been a problem getting a lower percentage of signatures in 30 districts. Proposition 3 prided itself on the widespread support it got in both rural and urban areas. REPRESENTATIVE JAMES noted she understands that widespread support because there was already a rule against it. MR. BENNETT said, "What--what was against the law was shooting from a plane. The Airborne Hunting Act has prohibited that since the 70's. Some of the people have testified today suggest that we distorted the campaign and tried to lead people to think that was legal and that's all we were prohibiting and that's pretty outrageous to us because most people knew that you couldn't shot from a plane for a long time in Alaska. So--I mean what we prohibited was exactly what we said we would prohibit which is the use of airplanes the same day, unless it was a biological emergency." MR. BENNETT further stated that 2 percent of the 30 districts wouldn't be an unreasonable burden, but 5 percent to 10 percent is elevating the process way beyond what it is now in terms of the amount of money and people it takes. The initiative process is hard, and for that reason he believes that there won't be an array of fish and wildlife initiatives in the future. There might be one or two more subjects that come up, but by and large the Alaskan public does not want to affect the nuts and bolts of game management by initiatives. They are more than happy to let the board take that onerous, time-consuming and difficult job. But, there are a few sensitive subjects that reach the larger public. Number 1980 CHAIRMAN KOTT asked Mr. Bennett whether he knows when the signatures have to be turned in. MR. BENNETT replied for Proposition 3 they were gathered in July/August and had to be turned in that fall. It was a short amount of time given weather conditions in some parts of Alaska. Number 2079 REPRESENTATIVE KERTTULA stated there is a year to collect signatures from the date the booklets are circulated. CHAIRMAN KOTT called on Gail Fenumiai from the Division of Elections. Number 2140 GAIL FENUMIAI, Election Program Specialist, Division of Elections, Central Office, Office of the Lieutenant Governor, stated the statute allows for a one-year signature gathering period from the date the petition booklets are available to the initiative committee. The majority of initiative committees gear up in the fall of an odd numbered year which means a petition has to be filed prior to the convening of the legislative session in an even numbered year for it to appear on the general election ballot. The majority of the initiatives that appeared on the 1996 ballot had the majority of their work done in the fall of 1995. CHAIRMAN KOTT stated it has to be turned in during the even year to get on the ballot. MS. FENUMIAI said correct. In order to appear on the general election ballot an initiative committee would need to file a petition prior to the legislative session convening in January. Number 2240 CHAIRMAN KOTT noted a group could apply in October as long as it can collect the signatures in time to file it before the legislature convened. MS. FENUMIAI replied that is possible, but the application has to be reviewed by the attorney general's office and the division has to verify at least 100 qualified signatures. Once that has happened, booklets are prepared and given to the committee. If that committee waited until October, it is not likely that it would be able to get the signatures by the convening of the legislative session. In addition, last year Senator Sharp sponsored a bill eliminating the supplementary petition period that a lot of the groups have relied on in past years. In other words, once an initiative petition has been filed, there isn't an extra 30 days to gather signatures if short. Number 2331 REPRESENTATIVE GREEN asked Ms. Fenumiai asked whether a group could continue to collect signatures as long as it got them in before the convening of the legislative session in even numbered years. MS. FENUMIAI replied they could continue if they have submitted their petition prior to the one year deadline. If, on its face when a petition is filed, there are not enough signatures, a group has time to get more signatures, if it's within its one-year time frame. If, on its face when a petition is filed, it looks like there are sufficient signatures, but the division later verifies that there aren't, a group doesn't get an extra period of time. Number 2399 REPRESENTATIVE KERTTULA asked Ms. Fenumiai whether she knows how many initiatives have tried but didn't get the number of signatures required. MS. FENUMIAI replied she doesn't have that information with her, but she can make it available to the committee. Number 2485 REPRESENTATIVE CROFT asked Ms. Fenumiai whether the resolutions affect referendums as well. TAPE 99-15, SIDE A Number 0001 MS. FENUMIAI stated she's not sure. Referendums and recalls generally have the same process, but are covered under a different section in Title 15. REPRESENTATIVE CROFT asked Ms. Fenumiai whether there has been a referendum recently. MS. FENUMIAI replied no. There have been some filed in years past. She can provide that historical data to the committee as well. Number 0091 CHAIRMAN KOTT closed the meeting to public testimony and called on Mr. Winchell to discuss the Pullen v. Ulmer case. Number 0109 MR. WINCHELL stated in Pullen v. Ulmer an organization known as F.I.S.H. (Fairness in Salmon Harvest) tried to file an initiative to allocate 5 percent of the total projected statewide salmon harvest to the sport fishery. When it got to the ballot, the United Fisherman of Alaska asked that it be adjoined. The court grappled with the idea of allocation and whether or not it can be done by referendum. The court referred to Article XI, section 7 of the state constitution which says, "The initiative shall not be used to dedicate revenues, make or repeal appropriations,..."; and, Thomas v. Rosen (1977) where the Alaska Supreme Court endorsed a definition of appropriation as, "...setting aside from public revenue of certain sums of money for specific objects in such a manner that the executive officer of the government are authorized to use that money and no more for that object and no other...". Thomas v. Bailey extended that definition to land. The court found that the F.I.S.H. initiative constituted an appropriation because it was allocating 5 percent of a natural resource. He noted a lot of the initiates that the committee has been discussing might fall into this purview. Number 0307 CHAIRMAN KOTT noted that the case came to his attention late this morning. He thought it would be interesting to the committee members to at least hear what was uncovered on the surface. Number 0332 REPRESENTATIVE CROFT stated the case is very relevant. As he reads it, an allocation of fish and wildlife is an appropriation thereby barred from the initiative process. The debate really focuses HJR 25 to things that concern fish and wildlife, but are not allocation issues. The F.I.S.H. initiative was sold as a management deal, but if it says this much to this group in order to use... Number 0405 MR. WINCHELL interjected and stated the F.I.S.H. group tried to raise the argument that it was a legal fiction, a misnomer, that it really wasn't an asset. The court said otherwise and invoked a lot of articles from the state constitution to justify it as well as other case law. Number 0482 CHAIRMAN KOTT indicated that all three resolutions will be held over for further research in light of the case law brought up towards the end of the meeting. It is relevant to all three resolutions. The percentage issue also needs to be looked at in terms of how it restricts the public from participating in the process. ADJOURNMENT Number 0482 CHAIRMAN KOTT adjourned the House Judiciary Standing Committee meeting at 4:30 p.m.