Legislature(1999 - 2000)
04/12/1999 01:55 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE April 12, 1999 1:55 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. 79 "An Act relating to letters of credit under the Uniform Commercial Code; and providing for an effective date." - MOVED HB 79 OUT OF COMMITTEE HOUSE BILL NO. 151 "An Act relating to revocation and reinstatement of the driver's license of a person at least 14 but not yet 21 years of age." - HEARD AND HELD; ASSIGNED TO SUBCOMMITTEE SENATE COMMITTEE SUBSTITUTE FOR SENATE BILL NO. 99(FIN) "An Act to clarify the meaning of 'decennial census of the United States' in art. VI, Constitution of the State of Alaska, to prevent discrimination in the redistricting of the house of representatives and the senate, and to prohibit expenditures of public funds for population surveys or sampling for certain purposes relating to legislative redistricting without an appropriation." - MOVED HCS CSSB 99(JUD) OUT OF COMMITTEE HOUSE BILL NO. 43 "An Act relating to police training surcharges imposed for violations of municipal ordinances." - SCHEDULED BUT NOT HEARD * HOUSE JOINT RESOLUTION NO. 19 Proposing an amendment to the Constitution of the State of Alaska requiring legislative confirmation of the appointed members of the judicial council. - BILL HEARING CANCELED * HOUSE JOINT RESOLUTION NO. 30 Proposing amendments to the Constitution of the State of Alaska repealing provisions relating to the constitutional budget reserve fund and providing that the balance in the fund be deposited into the budget reserve fund established by statute. - SCHEDULED BUT NOT HEARD (* First public hearing) PREVIOUS ACTION BILL: HB 79 SHORT TITLE: UNIFORM COMMERCIAL CODE: LETTERS OF CREDIT SPONSOR(S): LABOR & COMMERCE BY REQUEST Jrn-Date Jrn-Page Action 2/03/99 132 (H) READ THE FIRST TIME - REFERRAL(S) 2/03/99 133 (H) LABOR AND COMMERCE, JUDICIARY 2/26/99 (H) L&C AT 3:15 PM CAPITOL 17 2/26/99 (H) HEARD AND HELD 2/26/99 (H) MINUTE(L&C) 3/03/99 (H) L&C AT 3:15 PM CAPITOL 17 3/03/99 (H) MOVED OUT OF COMMITTEE 3/03/99 (H) MINUTE(L&C) 3/05/99 360 (H) L&C RPT 5DP 3/05/99 360 (H) DP: ROKEBERG, HALCRO, HARRIS, CISSNA, 3/05/99 360 (H) MURKOWSKI 3/05/99 361 (H) ZERO FISCAL NOTE (DCED) 4/07/99 (H) JUD AT 1:00 PM CAPITOL 120 4/07/99 (H) SCHEDULED BUT NOT HEARD 4/12/99 (H) JUD AT 1:00 PM CAPITOL 120 BILL: HB 151 SHORT TITLE: REVOCATION OF MINOR DRIVER'S LICENSE SPONSOR(S): REPRESENTATIVES(S) KOTT, Austerman Jrn-Date Jrn-Page Action 3/22/99 531 (H) READ THE FIRST TIME - REFERRAL(S) 3/22/99 531 (H) JUD 3/24/99 562 (H) COSPONSOR(S): AUSTERMAN 3/29/99 (H) JUD AT 1:00 PM CAPITOL 120 3/29/99 (H) SCHEDULED BUT NOT HEARD 4/07/99 (H) JUD AT 1:00 PM CAPITOL 120 4/07/99 (H) TABLED 4/07/99 (H) MINUTE(JUD) 4/08/99 (H) JUD AT 1:00 PM CAPITOL 120 4/08/99 (H) HEARD AND HELD 4/09/99 (H) JUD AT 1:00 PM CAPITOL 120 4/09/99 (H) HEARD AND HELD 4/12/99 (H) JUD AT 1:00 PM CAPITOL 120 BILL: SB 99 SHORT TITLE: REDISTRICTING BOARD/CENSUS FIGURES SPONSOR(S): RULES Jrn-Date Jrn-Page Action 3/11/99 476 (S) READ THE FIRST TIME - REFERRAL(S) 3/11/99 476 (S) JUD 3/17/99 (S) JUD AT 1:30 PM BELTZ 211 3/17/99 (S) MOVED OUT OF COMMITTEE 3/17/99 (S) MINUTE(JUD) 3/18/99 599 (S) JUD RPT 3DP 1NR 3/18/99 599 (S) DP: TAYLOR, TORGERSON, DONLEY; NR: ELLIS 3/18/99 599 (S) FISCAL NOTE (LAW) 3/18/99 599 (S) ADDITIONAL REFERRAL TO FIN 3/22/99 (S) FIN AT 9:00 AM SENATE FINANCE 532 3/22/99 (S) MOVED COMMITTEE SUBSTITUTE (FIN) FROM COMMITTEE 3/22/99 (S) MINUTE(FIN) 3/22/99 631 (S) FIN RPT COMMITTEE SUBSTITUTE 6DP 1NR NEW TITLE 3/22/99 632 (S) DP: TORGERSON, PARNELL, PHILLIPS, GREEN, 3/22/99 632 (S) DONLEY, WILKEN; NR: ADAMS 3/22/99 632 (S) ZERO FISCAL NOTE (LAW/S.FIN) 3/23/99 (S) RLS AT 10:50 AM FAHRENKAMP 203 3/23/99 (S) MINUTE(RLS) 3/25/99 682 (S) RULES TO CALENDAR AND 1 OR 3/25/99 3/25/99 685 (S) READ THE SECOND TIME 3/25/99 685 (S) FIN COMMITTEE SUBSTITUTE ADOPTED UNAN CONSENT 3/25/99 685 (S) ADVANCED TO THIRD READING UNAN CONSENT 3/25/99 685 (S) READ THE THIRD TIME CSSB 99(FIN) 3/25/99 686 (S) PASSED Y14 N5 A1 3/25/99 687 (S) ELLIS NOTICE OF RECONSIDERATION 3/26/99 704 (S) RECONSIDERATION NOT TAKEN UP 3/26/99 704 (S) TRANSMITTED TO (H) 3/29/99 598 (H) READ THE FIRST TIME - REFERRAL(S) 3/29/99 598 (H) JUD 4/09/99 (H) JUD AT 1:00 PM CAPITOL 120 4/09/99 (H) SCHEDULED BUT NOT HEARD 4/12/99 (H) JUD AT 1:00 PM CAPITOL 120 WITNESS REGISTER JANET SEITZ, Legislative Assistant to Representative Norm Rokeberg Alaska State Legislature Capitol Building, Room 24 Juneau, Alaska 99801 Telephone: (907) 465-4968 POSITION STATEMENT: Provided sponsor statement for HB 79. L.S. (JERRY) KURTZ, JR., Member National Conference of Commissioners on Uniform State Laws 1050 Beech Lane Anchorage, Alaska 99501 Telephone: (907) 258-6051 POSITION STATEMENT: Testified in support of HB 79. ARTHUR H. PETERSON, Uniform Law Commissioner for Alaska 350 North Franklin Street Juneau, Alaska 99801 Telephone: (907) 586-4000 POSITION STATEMENT: Testified in support of HB 79. PET CRANDALL, Representative Alaska Bankers Association 123 Seward Street Juneau, Alaska 99801 Telephone: (907) 586-3324 POSITION STATEMENT: Testified in support of HB 79. LINDA WRIGHT P.O. Box 105 Soldotna, Alaska 99669 Telephone: (907) 262-9694 POSITION STATEMENT: Testified on HB 151. MARTHA HODSON, Member Guardian for Family Rights P.O. Box 3687 Soldotna, Alaska 99669 Telephone: (907) 260-9156 POSITION STATEMENT: Testified on HB 151. LINDA JOHNSON, Legal Advisor Anchorage Youth Court P.O. Box 102735 Anchorage, Alaska 99510 Telephone: (907) 274-5986 POSITION STATEMENT: Testified on HB 151. ANNE D. CARPENETI, Assistant Attorney General Legal Services Section-Juneau Criminal Division Department of Law P.O. Box 110300 Juneau, Alaska 99811-0300 Telephone: (907) 465-3428 POSITION STATEMENT: Testified on HB 151. ROBERT BUTTCANE, Juvenile Probation Officer Youth Corrections Division of Family and Youth Services Department of Health and Social Services P.O. Box 110630 Juneau, Alaska 99811-0630 Telephone: (907) 465-2212 POSITION STATEMENT: Testified on HB 151. CORY WINCHELL, Administrative Assistant to Representative Pete Kott Alaska State Legislature Capitol Building, Room 118 Juneau, Alaska 99801 Telephone: (907) 465-3777 POSITION STATEMENT: Testified on HB 151. KEVIN HYDE P.O. Box 105 Soldotna, Alaska 99669 Telephone: (907) 262-4889 POSITION STATEMENT: Testified on HB 151. TOM MOFFATT, Legislative Assistant to Senator Tim Kelly Alaska State Legislature Capitol Building, Room 101 Juneau, Alaska 99801 Telephone: (907) 465-3822 POSITION STATEMENT: Sponsor of SB 99. KEVIN JARDELL, Legislative Assistant to Representative Joseph Green Alaska State Legislature Capitol Building, Room 214 Juneau, Alaska 99801 Telephone: (907) 465-4931 POSITION STATEMENT: Testified on SB 99. JAMES BALDWIN, Assistant Attorney General Governmental Affairs Section Civil Division Department of Law P.O. Box 110300 Juneau, Alaska 99811-0300 Telephone: (907) 465-3600 POSITION STATEMENT: Testified on SB 99. ACTION NARRATIVE TAPE 99-28, SIDE A Number 0001 CHAIRMAN PETE KOTT called the House Judiciary Standing Committee meeting to order at 1:55 p.m. Members present at the call to order were Representatives Kott, Green, James, Murkowski, Croft and Kerttula. Representative Rokeberg arrived at 2:40 p.m. HB 79 - UNIFORM COMMERCIAL CODE: LETTERS OF CREDIT CHAIRMAN KOTT announced the first order of business is HB 79, "An Act relating to letters of credit under the Uniform Commercial Code; and providing for an effective date." Number 0049 JANET SEITZ, Legislative Assistant to Representative Norm Rokeberg, Alaska State Legislature, stated that the House Labor and Commerce Standing Committee introduced HB 79 at the request of the uniform law commissioners for Alaska. Article 5 of the Uniform Commercial Code (UCC) needs to be revised to reflect changes in technology and business practices. The National Conference of Commissioners on Uniform State Laws in 1995 proposed the revisions. As of January, 39 other jurisdictions have adopted them. In order for Alaska to keep up with developments in commercial law and letters of credit, it needs to adopt this bill as well. She noted that Mr. Art Peterson, a uniform law commissioner for Alaska, is here to answer any technical questions. Number 0180 [THE RECORD REFLECTS THAT L.S. (JERRY) KURTZ' TESTIMONY IS INTERMITTENTLY AUDIBLE.] L.S. (JERRY) KURTZ, JR., Member, National Conference of Commissioners on Uniform State Laws, testified via teleconference from Anchorage. He is a retired attorney, and has represented both sides of letters of credit. Alaska has had the old version, or existing version, of UCC Article 5 for almost 40 years. It works well and there has been very little litigation under it. The new one simply embellishes it to catch up with technology and perhaps make a little bit of a better balance between debtors and creditors. Number 0347 ARTHUR H. PETERSON, Uniform Law Commissioner for Alaska, came before the committee to testify. He is also an attorney with the law offices of Dillon and Findley. He noted that Pete Crandall, a banker, is in the audience to answer any banking questions. The basic thrust of the bill is to recognize what is going on in the area of commercial law with letters of credit. The UCC Article 5 was drafted in the 1940's and 1950's, and the concepts were based on the thinking of that time. Clearly, a lot has been done in the intervening decades, such as the use of computers, E-mail, fax machines, etc. In addition, Alaska hasn't had a lot of litigation, but there has been conflicting court decisions amongst the various states. The bill would resolve those inconsistencies and facilitate the modern way of doing business. It is a major industry. As of 1989, it was a $200-billion business. He is sure that the figure is considerably higher today. Number 0562 CHAIRMAN KOTT said this particular issue has been before the legislature a few times, but this seems to be the most pervasive change. He asked Mr. Peterson whether this is something that has been agreed to nationally. MR. PETERSON replied yes. This bill is a product of the National Conference of Commissioners on Uniform State Laws, as was the original UCC. The conference continually works on various articles in order to update them. Thirty-nine states have already enacted this amendment to the UCC, so Alaska had better get with it. This was before the legislature last year. It passed the House, but got stopped in the Senate Judiciary Standing Committee for some unknown reason. Number 0674 REPRESENTATIVE GREEN referred to a list of states that have adopted the amendment, and asked Mr. Peterson whether Texas has adopted it yet. Texas is listed under "Introductions in 1999". MR. PETERSON replied he is not sure how fast they operate in Texas. They could very well have passed it by this time. REPRESENTATIVE GREEN said some of the states that haven't passed this amendment - Pennsylvania, New York, Louisiana and Texas - are pretty well-known for their financial institutions. He asked Mr. Peterson what is the hold up for them. Number 0719 MR. PETERSON replied New York, where guidance and leadership is looked at for commercial law matters, has a system where all revisions to uniform acts have to go through a section of the bar association which causes delays. He has not heard of any opposition, however. He can't comment on Louisiana, other than that they are under a civil law approach which is a little bit different than the common law approach. They have adopted most of the UCC; he just doesn't know where they stand on Article 5. He can't imagine that they wouldn't adopt it because a good bit of it deals with international trade. Number 0827 REPRESENTATIVE GREEN said he is wondering why Alaska should "get on board" quickly when one of the largest financial states will probably be the last to "get on board." Number 0860 MR. PETERSON pointed out that California, Illinois and all of the Northwestern states have already enacted the amendment. He would not worry because New York is not on the list; they will be there. Number 0924 REPRESENTATIVE GREEN said if Wyoming, Nebraska or Montana were not on the list that would be one thing. He just noticed that some of the states, that he expected to see, were not on the list. It's not a major issue; he was just wondering if there was a reason. Number 0940 CHAIRMAN KOTT said he would expect that New York, Texas or Florida, for example, would be interested in this issue since it is an important tool used in international trade. He asked Mr. Peterson what would be the consequence of not passing this measure this year. Number 0970 MR. PETERSON replied the state would fall behind in using letters of credit for Alaskans dealing in international trade. There would be no advantage to lag behind. He asked, Would National Bank of Alaska or First National Bank of Anchorage fall apart? He replied, no. Providing for this would benefit and facilitate commerce. As far as he can tell, there would be no disadvantage to any particular identifiable group by enacting this. In addition, a hold up in Texas or Florida could be that their bar associations want to tinker with a certain aspect. He doesn't have that information, however. Number 1079 REPRESENTATIVE CROFT asked Mr. Kurtz, Jr. whether he heard him say that there would be a shift between creditor and debtor. [THE RECORD REFLECTS THAT L.S. (JERRY) KURTZ' TESTIMONY IS INTERMITTENTLY AUDIBLE.] MR. KURTZ, JR. replied Representative Croft heard him correctly. He referred to Section 10(b) of the bill which specifically spells out a reasonable time to respond to a presentation of a letter of credit. One problem that has persisted for many years is that the occasional irresponsible financial institution would sit on a letter rather than acting on it thereby putting a business person in a very difficult situation. Nothing in the bill really changes the balance, except that it makes it easier for the banks and borrowers to utilize what Mr. Peterson was talking to. He referred to page 3, line 7, of the bill - "document" - and noted when the law was put into effect throughout the country in the 1960's, everybody envisioned a tightly sealed letter of credit going from one destination to another, but now with the expansion of faxes and E-mail this provision brings letters of credit into the same age as what the financial institutions have been in for years now when handling checks, for example. Number 1276 PET CRANDALL, Representative, Alaska Bankers Association, came before the committee to testify. He also works for the National Bank of Alaska. They both support HB 79. The UCC for letters of credit spells out the responsibilities of the parties between commerce transactions. The disadvantage in not passing updating legislation is dealing with a state that has thereby opening up gaps for attorneys to refute a transaction of some type. The state has existed with the current UCC, and there haven't been that many disputes, but the players need to be on the same common playing field. He declared that the states that haven't passed a revision yet will join the effort as time goes on. He pointed our that even though New York has not, huge states like California and Delaware have. The more states on board, the playing field becomes much more compatible and protects the rights of both buyers and sellers. Number 1391 REPRESENTATIVE MURKOWSKI asked Mr. Kurtz, Jr. whether he is aware of the hold up in New York and whether it is a fact, as Mr. Peterson indicated, that they have to go through their bar association in order to pass uniform type of legislation. Number 1420 [THE RECORD REFLECTS THAT L.S. (JERRY) KURTZ' TESTIMONY IS INTERMITTENTLY AUDIBLE.] MR. KURTZ, JR. replied he doesn't know any more than Mr. Peterson. He has frequently seen New York lag behind other states in respect to the commercial code. He pointed out that Texas and Louisiana are the only two states west of the Mississippi River that have not updated their commercial codes, except for Alaska. Number 1451 REPRESENTATIVE CROFT referred to the current AS 45.05.104 and noted that letters of credit need to be signed, but a telegram will suffice, if a signature cannot be gotten. The new AS 45.05.104 allows the parties to have an agreement or use standard industry practices. If it was strictly construed to a signature, there must be ways other than the actual delivery of a document to do this, otherwise it wouldn't have worked very well. Allowing for agreements or standard industry practices is one example of what is trying to be fixed. Number 1505 REPRESENTATIVE MURKOWSKI noted, when the bill was heard in the House Labor and Commerce Standing Committee, the testimony indicated that there is a need to stay on top of things, and that there is not a reason to delay moving it through this year. She said, "We need to get on board." Number 1536 REPRESENTATIVE MURKOWSKI made a motion to move HB 79 from the committee with individual recommendations and the attached fiscal note(s). There being no objection, HB 79 was so moved from the House Judiciary Standing Committee. HB 151 - REVOCATION OF MINOR DRIVER'S LICENSE CHAIRMAN KOTT announced the next order of business is HB 151, "An Act relating to revocation and reinstatement of the driver's license of a person at least 14 but not yet 21 years of age." Number 1570 CHAIRMAN KOTT indicated there is a committee substitute for HB 151, 1-LS049\S, Ford, 4/12/99. It basically gives the youth court some authority to hear cases involving possession of alcoholic beverages in violation of AS 04.16.050. It provides the department the opportunity to use the youth courts. It was recently brought to his attention to also include consumption. Number 1608 REPRESENTATIVE MURKOWSKI noted that the title changed, and asked Chairman Kott whether there have been changes to any sections regarding possession. CHAIRMAN KOTT replied no. The title changed to make it tighter. Number 1636 REPRESENTATIVE GREEN made a motion to adopt the committee substitute for HB 151 (1-LS0492\S, Ford, 4/12/99). There being no objection, it was so moved. Number 1658 [THE RECORD REFLECTS THAT LINDA WRIGHT'S TESTIMONY IS INTERMITTENTLY AUDIBLE.] LINDA WRIGHT testified via teleconference from Kenai. She still wonders whether the young people are getting their due process rights. When HB 21 and HB 299 were heard, it was assured that the hearing would allow for due process rights. She doesn't feel that is the case, however. Young adults and minors are being forced to provide the only evidence that can be used against them. In fact, the language in AS 28.15.184(g) indicates that hearings shall be "limited" to the issues of whether the person possessed or used a controlled substance. She asked, "And, if a person should miss the seven-day deadline, can we assume they don't need or warrant their due process rights?" She replied, "No, we can't." She hopes that the legislators will confer to the people who have and continue to be injured by this unfair law, and together come up with something that is both fair and constitutional. Number 1758 [THE RECORD REFLECTS THAT MARTHA HODSON'S TESTIMONY IS INTERMITTENTLY AUDIBLE.] MARTHA HODSON, Member, Guardian for Family Rights, testified via teleconference from Kenai. She referred to her daughters of which one didn't get her driver's license until she was 21. Her son will be close to 30 years old before getting his driver's license. She has a problem with that. She doesn't agree with them drinking, but they have graduated from high school and can vote for "you all." Her son was charged with the possession of a can chewing tobacco at 19 years of age. She admitted that she bought it for him and she admitted that to the judge. She reiterated she doesn't like them drinking and driving. Something needs to be done to restore the right of teenagers to talk to an attorney. Something needs to be done about the law to control them before the age of 21, but the DMV [Division of Motor Vehicles] should not have that much power after the age of 21. The courts should have that power. Number 1914 CHAIRMAN KOTT pointed out that the committee substitute would eliminate the term "consecutive" and insert the term "concurrent." He is not sure how anybody could be picked up with the "Use It, Lose It" law with a can of chewing tobacco, unless it has been laced with "some good stuff." Number 1935 LINDA JOHNSON, Legal Advisor, Anchorage Youth Court, testified via teleconference from Anchorage. She thanked the committee for considering alcohol consumption and possession cases as good for the youth courts. The wording, however, includes it under the Department of Health and Social Services when it does not handle violations, which is what a consumption of the possession of alcohol is. It gives the department a viewpoint. According to the McLaughlin Youth Center, they do not have the resources to take on the alcohol cases. She encouraged the committee members to consider amending that section to include language of jurisdiction for referrals. In addition, curfew and tobacco cases are also violations, and she encouraged the committee members to include them as well. Number 2040 CHAIRMAN KOTT announced he is in receipt of a document from Ms. Johnson indicating those suggestions. Number 2049 REPRESENTATIVE MURKOWSKI asked Ms. Johnson whether community work service in terms of a penalty or fine would be handled by the youth courts. MS. JOHNSON replied the Anchorage board of directors do not want to take on alcohol cases, but the other youth courts around the state want to. She thinks as soon as the statute is fixed and is in compliance with the courts then the Anchorage board of directors will change its mind. A standard penalty would be a certain amount of community work service between 5 to 15 hours, a mandatory essay of 500 to 3,000 words, and an alcohol class. The Anchorage Youth Court currently uses a youth intervention program from the Volunteers of America organization. Other types of classes would be anger management or any other specific class depending on what happened during the arrest. Number 2124 REPRESENTATIVE MURKOWSKI asked Ms. Johnson whether the Anchorage board of directors doesn't want to take on alcohol cases simply because of the jurisdiction issue, or is there something else contributing to the reluctance. MS. JOHNSON replied it is mostly the problem with the new court opinion that just came down. The board doesn't want the Anchorage Youth Court itself to simply be a monitoring agency. The board wants it to have a real effect. The board is afraid that there would be very little incentive for someone to follow through with a youth court penalty the way it is written now. The board doesn't know how to change that at the time, however. Number 2172 REPRESENTATIVE MURKOWSKI said, in recognition of the increase in the number of revocations of those under 21 years of age for possession or consumption, she asked Ms. Johnson what this would do to the youth court's workload. In other words, is it prepared to take on an increase like this? MS. JOHNSON replied it has considered the possible workload. According to a district attorney in Anchorage, he receives no more than 300 cases per year. Currently, the Anchorage Youth Court takes between 450 to 550 cases per year, but they are at the misdemeanor and felony levels. The Anchorage Youth Court would have to restructure its system. There is a limited amount of student members to draw from to make up a court. It would probably be structured more like traffic court and a little less like superior court. Number 2220 CHAIRMAN KOTT asked Ms. Johnson whether the penalties would be on a case-by-case basis. MS. JOHNSON replied the court is run on a case-by-case basis. It would depend on the mitigators or aggravators. The judges would have to be questioned, but the referring authority would be able to make recommendations on each case. Number 2265 CHAIRMAN KOTT asked Ms. Johnson what the costs are associated with an alcohol rehabilitation program. MS. JOHNSON replied the one that the Anchorage Youth Court currently uses is $125. It satisfies DMV's requirement, so a person can "kill two birds with one stone." Number 2280 CHAIRMAN KOTT asked Ms. Johnson how often the Anchorage Youth Court meets. MS. JOHNSON replied, currently, it has cases two to three days per week. Number 2287 CHAIRMAN KOTT asked Ms. Johnson whether it's awkward for a person to appear in youth court who is 21 plus years of age. MS. JOHNSON replied, currently, the Anchorage Youth Court does not take anybody who is 18 years old or older. She doesn't think even with alcohol cases youth courts would want to take 18-, 19-, or 20-year-olds. CHAIRMAN KOTT asked Ms. Johnson whether that would require a specification in statute. MS. JOHNSON replied yes. Number 2340 ANNE D. CARPENETI, Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law, came before the committee to testify. The Department of Health and Social Services would not be the referring agency to the youth courts. It would probably have to be the local police departments. There would have to be a requirement to develop some sort of standards of referral, if the wording is "may" rather than "shall". In addition, unless consumption is added, the minor consumption law would probably have to be revised for subsections to be charged under, so that a police officer could cite a person with a particular violation of possession rather than consumption. It would be easier than having some sort of fact-finding after the fact as to whether or not a person was cited for having a beer in his hand or on his person. She suggested requiring the chief administrative officer of the Alaska Police Standards Council to develop standards for what cases should go to the youth courts. She cited age as an example. TAPE 99-28, SIDE B Number 0001 ROBERT BUTTCANE, Juvenile Probation Officer, Youth Corrections, Division of Family and Youth Services, Department of Health and Social Services, came before the committee to testify. The department does not have the authority over alcohol violation cases. The wording needs to be changed so that the youth courts can get these cases from the referring entities. Number 0023 CHAIRMAN KOTT said the committee recognizes its error. Number 0029 REPRESENTATIVE MURKOWSKI asked Mr. Buttcane whether the Department of Health and Social Services is involved with the alcohol course that the youth courts send people to. MR. BUTTCANE replied the course referenced by Ms. Johnson is approved by the Division of Alcoholism and Drug Abuse, and is recognized by the Division of Motor Vehicles. In that sense the department is connected to that program. Number 0062 REPRESENTATIVE MURKOWSKI asked Mr. Buttcane whether that program is geared towards adults or underage drinkers. MR. BUTTCANE replied that program is an alcohol information program. There isn't a formal screening process like in the adult system. There are provisions for a juvenile alcohol safety action program, but it has not been funded. Number 0116 CORY WINCHELL, Administrative Assistant to Representative Pete Kott, Alaska State Legislature, came before the committee to testify. He stated that the language under the committee substitute is not within the purview of the department. That can be changed. It was the intent to empower youth courts to hear minor-in-possession cases. It was the original intent for the "Use It, Lose It" law to come into compliance with its catch-name. It was also the original intent to address some of the convoluted fact-patterns surrounding possession by running it concurrently rather than consecutively, so that kids had a chance to ameliorate their behavior. MR. WINCHELL further stated that there are two court cases involving the "Use It, Lose It" law: Jada Quinn and Nina Storm v. State and Rexford v. State. The Storm case was a two-two split. It is not binding, only persuasive, and there were some good arguments from the superior court. The two young adults involved - Jada Quinn and Nina Storm - were in a campground outside of Anchorage. They disclosed to the police that they had taken some sips of beer and empty beer cans were lying around. They were 20 years old and were given a breath alcohol test. They blew .003 and .006, respectively. They were not around a vehicle, so the court worked through whether the revocation was punitive in nature or remedial. The court got into an analysis of the nexus between the time of drinking and its relation to a vehicle. In Rexford v. State, a young man's driver's license was revoked before bringing about the criminal charge. His attorney argued double jeopardy. In other words, the taking of a driver's license is punitive in nature, so the criminal action is double jeopardy. The court held that an administrative license revocation is not punishment for double jeopardy purposes. However, the court upheld that for due process there might be a punishment involved. Number 0293 REPRESENTATIVE ROKEBERG asked whether the committee substitute speaks to the issues raised by the two court cases. MR. WINCHELL replied no, but in side-meetings these kinds of questions have been raised. Number 0315 REPRESENTATIVE ROKEBERG said there is a split in the courts now and for a change the legislature could give the courts guidance. Number 0328 REPRESENTATIVE GREEN stated, when the original bill was passed, former-Representative Cynthia Toohey indicated that it was an attempt to go beyond the mere facts associated with a vehicle, but to punish teenagers for drinking before their time. That seemed like a good idea, but it hasn't been all that effective in cutting out consumption. It has been more damaging toward the need of people. If that is the case, the concept needs to be reviewed. Maybe, there is another avenue to pursue. Number 0374 REPRESENTATIVE JAMES said she saw a different level of complaint between a minor drinking and driving and a minor drinking. They are two different issues, and she wasn't willing to have the same deterrent/penalty for them both. Number 0403 MR. WINCHELL stated, in response to a comment made by Representative Rokeberg last week regarding the criminality of children by coming down so draconian, the bill does not seek to address any consumption issues. It says, if a person uses alcohol underage, it is against the law and a strong policy against that is needed - the loss of one's driver's license. CHAIRMAN KOTT noted the committee substitute does not address that; it only gives the youth courts the opportunity to hear cases involving possession. REPRESENTATIVE ROKEBERG asked Chairman Kott whether a person can still lose a driver's license for possession without driving. CHAIRMAN KOTT replied yes. That is one of the main issues that this committee needs to address. Number 0445 REPRESENTATIVE ROKEBERG referred to an example whereby a 19-year-old lost his driver's license because he was in an area where liquor was being served and his job because he didn't have a license. He is living on his own and has a learning disability. It was a series of stupid events that the law caused which should not have happened in the first place. Number 0482 CHAIRMAN KOTT asked Mr. Winchell, if a nexus is tied between the use of alcohol and driving followed by a revocation, what effect would that have on cases that have been thrown out by the courts, but the revocation still stood. Number 0522 MR. WINCHELL replied these are two different standards. The administrative revocation, when a police officer has probable cause to suspect consumption or possession, it is the same criminal law. A license will be revoked within seven days and a person has the right to appeal it. Pragmatically speaking, kids don't want their parents to find out and are letting the appeals slide. According to the DMV, the standard goes up for those who appeal. However, having done several probable cause hearings, the officer's reasons are stated and deferred to which establishes a higher standard. The criminal standard is higher, but this is a noncriminal violation under the current law. If a nexus is tied to a vehicle, a driver's license would not be lost, unless there is probable cause to suspect that somehow a person's drinking activity was tied to a vehicle. If a person is out camping and consuming or possessing alcohol and no vehicle is around, it would be difficult to establish probable cause. Arguably, a nexus could be tied to surrounding or leaning up against a running car, for example. Number 0607 CHAIRMAN KOTT asked Mr. Winchell whether the cases that have been tossed out by the courts would be minimal. MR. WINCHELL replied a higher burden could still not be met in a criminal case of possessing or consuming. However, by a probable cause standard, and even a clear and convincing standard at the appeals level, drinking has to be established around a car. He said, "Kids aren't walking down the street after taking a sip of beer and a police nabbing them and saying, 'Hey, I smell alcohol on your breath.' And, then writing in their report the standard three sentences, you know: bloodshot eyes, slurred speech, and slightly gazed. So, they've got their probable cause." It would be a little bit more difficult to charge and take their driver's licenses away. Number 0647 REPRESENTATIVE MURKOWSKI asked Mr. Winchell how a minor, who is consuming, is tied to a car who says he has a designated driver. Is he tied to the car because it is registered to his parents? MR. WINCHELL replied he doesn't know, but if he was a prosecutor he would argue there is a nexus to the vehicle because it is about to drive somebody somewhere. REPRESENTATIVE MURKOWSKI said she can see this becoming a slippery slope. Number 0705 REPRESENTATIVE JAMES said it is absolutely wrong for children underage to be drinking. It is important that they understand the seriousness of drinking and driving. The problem is, teenagers have a real good understanding of what's fair and not fair. They know about penalties, but if somebody else does something and doesn't get penalized, they can see the unfairness. And, it doesn't take much for teenagers to become rebellious for unfair treatment. It seems that this should be done so that there are steps along the way along with a real intensive campaign in the schools. They need to understand that if they drink at all, they could lose their driver's licence, even if they don't have one yet. Number 0809 MR. WINCHELL said the original "Use It, Lose It" law said, if a person consumes alcohol, that person will lose his driver's license. The issue now is using it at all or using it around a car. If it is not used around a car, a person would be put before the purview of the youth courts. Number 0854 REPRESENTATIVE ROKEBERG said, having listened to this and others dealing with it, he has concluded that he would not be comfortable supporting anything less than a real bright line of consuming while driving or being a passenger with an open container inside the car. The Storm case says that the provisions of existing Alaska law do not require that a minor be operating or even be in close proximity to a motorized vehicle. He thinks the law should be repealed. Number 0952 KEVIN HYDE testified via teleconference from Kenai. He likes Representative Rokeberg's idea. This is what he has been after, not because he wants children to be consuming alcoholic beverages or participating in the use of drugs, but for fairness. He would like to see this process recriminalized and returned to the courts. He said, give the courts the opportunity to be more flexible with treatments for second offenders. Blanket situations is why there are young people who are 18-19 years old and they can't drive until they are 40 years old. A judge can make other decisions, can make other referrals to different agencies, and can REPRESENTATIVE BERKOWITZmore creative with punishments. Number 1026 CHAIRMAN KOTT assigned the bill to a subcommittee consisting of Representative Rokeberg as chair, Croft and himself. The subcommittee is to consider the nexus of providing the youth courts to hear both consumption and possession of alcohol related cases. That may be more effective than recriminalizing the use of alcohol again. SENATE CSSB 99(FIN) - REDISTRICTING BOARD/CENSUS FIGURES CHAIRMAN KOTT announced the next order of business is Senate CSSB 99(FIN), "An Act to clarify the meaning of 'decennial census of the United States' in art. VI, Constitution of the State of Alaska, to prevent discrimination in the redistricting of the house of representatives and the senate, and to prohibit expenditures of public funds for population surveys or sampling for certain purposes relating to legislative redistricting without an appropriation." Number 1132 TOM MOFFATT, Legislative Assistant to Senator Tim Kelly, Alaska State Legislature, came before the committee and read the following sponsor statement into the record: This legislation was introduced to end discrimination against members of the Armed Forces in legislative redistricting and insure that future redistricting plans are based on census figures derived from an actual count of every Alaskan. Senate Bill 99 will eliminate confusion by placing in our statutes clear answers to two major questions as we prepare for the United States census in the year 2000 and the subsequent redrawing of legislative district boundaries. This legislation will end the discriminatory practices of previous redistricting boards and direct that census numbers derived from estimates or adjustments based on statistical sampling will not be used to redraw district lines. The 1959 Alaska Constitution directed that only the 'civilian' population be considered when the boundaries for State House and State Senate districts were drawn. During the 1960's, reapportionment boards ignored the presence of members of the Armed Services completely, while later boards assigned various percentage values to service members. In 1970, each soldier, sailor, airman, marine and coast guardsman in Alaska was counted as 11 percent of a resident, while in the 1980 redistricting they were counted as 35 percent of other Alaskans. That's even worse discrimination than used before the Civil War when slaves were counted at only 60 percent of a person for congressional reapportionment. The redistricting board of 1990 was the only one to count members of the military equally with other residents. Today, Alaskans recognize that occupational discrimination is just as wrong as discrimination based on race, religion, sex, age, color, or national origin and that is why the voters removed the word 'civilian' from the Alaska Constitution at the most recent 1998 election. But, court decisions from old legal challenges to previous redistricting boards might still be used as an excuse to undercount our neighbors in the military. Senate Bill 99 will establish a statutory bar to future redistricting discrimination and insure the men and women serving here in our Armed Forces will not be treated as second-class Alaskans. Senate Bill 99 will also clarify questions regarding which numbers from the United States Bureau of the Census will be used by future redistricting boards to reapportion Alaska's Legislature. Some people have actively arguing that statistical sampling and estimates replace the actual head count of every American in the decennial census. Earlier this year, the U.S. Supreme Court prohibited the use of adjusted or estimated figures in reapportioning the seats of the U.S. House of Representatives among the states. But that decision left the door open for the Census Bureau to develop figures through sampling and estimates and make them available to the states along with the results of the traditional count. This bill will close that door in Alaska for purposes of legislative reapportionment. If the Census Bureau's report of the decennial census includes more than one set of figures for Alaska, SB 99 will facilitate the work of the redistricting board and avoid litigation over the plan they produce. Senate Bill 99 would prohibit them from using any numbers produced by estimates or sampling adjustments and directs them to use only the results of the actual count of Alaska's population, just as the nation has been doing for the past 210 years. MR. MOFFATT added Senator Kelly understands that there is a proposed House committee substitute and he thinks it is just fine. Number 1411 CHAIRMAN KOTT indicated there is a proposed House committee substitute for the committee substitute for SB 99, 1-LS0380\S, Kurtz, 4/10/99. He noted the change is on page 3. It provides a qualified voter the opportunity to bring a challenge against the redistricting board to the superior court. Number 1440 KEVIN JARDELL, Legislative Assistant to Representative Joseph Green, Alaska State Legislature, came before the committee to testify. He indicated there is also a grammatical change. The proposed committee substitute adds the word "and" to page 2, line 2. Number 1493 REPRESENTATIVE JAMES made a motion to adopt the proposed House committee substitute for committee substitute for SB 99, 1-LS0380\S, Kurtz, 4/10/99. There being no objection, it was so moved. MR. JARDELL explained the changes instill an insurance of bringing an action against using discriminatory practice or sampling numbers. It also makes current statutory language comply with the constitutional amendment passed last year. The constitutional amendment required independent counsel for the board, and the current statutes say that the attorney general's office shall represent the state in all matters. It also brings in the concept that by the time the board is constituted there isn't enough time to do the needed preparations to ensure that a fair and unbiased redistricting is completed. The compilation of geographical and cultural information takes an enormous amount of time. In recognizing that, the proposed House committee substitute gives the authority to the Alaska Legislative Council to come up and work with the Administration on developing data bases, budgets and accounting systems - the details that will have to be in place for the board to draft a fair and unbiased redistricting proposal. Number 1695 CHAIRMAN KOTT asked Mr. Jardell whether the legislative council would be the funding source for the redistricting board. MR. JARDELL replied it is assumed that the legislative council would be the funding source. It would be within its power to go to supplemental appropriations. It would have the ultimate responsibility to ensure that it gets done. Number 1731 REPRESENTATIVE GREEN said the state is behind the curve on data gathering. This would be an avenue to get the train rolling, but problems could arise that would be beyond the authority of the council. Number 1771 REPRESENTATIVE CROFT referred to Article VI, section 3, of the state constitution, and asked Mr. Jardell whether the bill attempts to define what the legislature thinks the people meant when they enacted the amendment to the constitution. MR. JARDELL replied Representative Croft's question refers to the original Senate bill and deferred it to the sponsor. In working on the constitutional amendment and looking at the situation created by the Clinton Administration since the amendment was passed, the only requirement is that a census be completed for apportionment. It doesn't speak to redistricting. He said, "Now, with--my understanding of this is that what they're attempting to do is come in and say, well, you can't just come up with numbers for some other reason whether it be for federal funding or any other reason and say--slap a (indisc.) and say this is the official one. The one that is referenced in the United State's Constitution is the one that they were intending to reference, and that this does, you know, speak to that and express the will of the legislature, if it does pass." REPRESENTATIVE CROFT asked Mr. Jardell how is the will of the legislature relevant to this. MR. JARDELL replied that is his understanding of what the sponsor in the Senate is trying to accomplish, and deferred the question to the sponsor's representative. Number 1959 MR. MOFFATT stated, when the amendment to the constitution was passed, nobody envisioned that the official decennial census would be anything other than that which has been in effect for 210 years. The legislature can always seek to make things clearer, to make suggestions, and to make laws. The members of the Senate Judiciary Standing Committee consider this appropriate. Number 2031 REPRESENTATIVE CROFT said it is not the legislature's place to interpret the constitution. That is for another branch of government. What role does the legislature have in telling the people what they meant when enacting the constitution or a constitutional amendment? According to his reading of the case law, the legislature has almost no role in that, and properly so. It is not what the legislature meant when putting the words before the people, but what the people meant when they passed it. Usually, the courts look at what the Official Election Pamphlet said, what the voters heard, and what information was available to them. When this issue has been tried, it has been uniformly rejected for a legislature to attempt to interpret the constitution or tell the people what they say it has to mean. Number 2135 MR. MOFFATT stated, obviously, this is a matter for a philosophical debate. He doubts that the voters had any information in the pamphlet that the official decennial census of the United States would be anything other than the traditional head count for the purposes of reapportionment. That is how it has invariably been done. The concept behind the original bill was because the use of samplings or surveys in Alaska have been used for purposes of discrimination, specifically against the military. This bill mainly seeks to do what the legislature can do to prevent discrimination, to prevent people being counted for less than a whole person for purposes of voting or representation. He said, 10 year olds don't vote, but they are represented. The homeless may not be registered to vote, but they are represented, as well as those who suffer disabilities. The legislature has a proper function in trying to be of every assistance to make sure that discrimination does not occur, and that the actual numbers are used, not just speculative ones. The courts may determine differently, but the legislature is a policy making body and has every right to do its best. Number 2395 REPRESENTATIVE MURKOWSKI asked Mr. Jardell to clarify Section 4(d). She can't imagine that the council independently would have the expertise to develop a computerized system of what the board would need. TAPE 99-29, SIDE A Number 0001 MR. JARDELL said it takes an enormous amount of time to work through any computer system. This provision is attempting to have the council work with those who have experience, such as Kathryn Lizik with the Department of Labor and other experts to choose a system, to put it in place, and to start working on it in order to make sure it will operate when the board sits down and starts to draw a redistricting plan. The idea is not to have the council develop a system itself, but to make sure that one gets developed. Number 0088 REPRESENTATIVE MURKOWSKI asked Mr. Jardell whether that would be through a contractor, for example. MR. JARDELL replied it certainly could be through a contractor. It would be up to the council. The intent is that it gets done on time. Number 0121 CHAIRMAN KOTT said the council would not develop the software itself, but it would ensure that there is a vendor out there to provide the information needed, such as mapping. There are probably a half dozen vendors out there now that have the resources available to help. MR. JARDELL noted there are about a half dozen systems designed solely for redistricting at this time. It's a matter of finding out which one would be best for Alaska because it has some geographical problems that aren't considered in some of the programs for the Lower 48. It's a matter of making a decision to purchase or lease a program, and making sure that it is up and running when the board needs to sit down and use it. Number 0224 CHAIRMAN KOTT offered a technical amendment to change the language to read, "responsible for the development of a computerized system" [Section 4(d)]. There being no objection, it was so adopted. Number 0300 MR. JARDELL stated the intent of the sponsor of the proposed House committee substitute is not to step on the toes of the Senate Rules Standing Committee. It is really to make sure that the job gets done; to make sure that everything is completed; and to make sure that all the tools are available for the board in an honest, fair and unbiased condition. Number 0369 REPRESENTATIVE CROFT asked Mr. Jardell whether he is testifying to the intent of the Senate Rules Standing Committee. Is that committee the sponsor of the committee substitute? MR. JARDELL replied the sponsor of the committee substitute is Representative Green. He is testifying on Representative Green's intent. Number 0397 REPRESENTATIVE GREEN commented that he dropped by the U.S. Census Bureau when he was in Washington D.C. and was reassured of the enormous amount of preparation. The bureau said that the state is probably late. A state needs to gear up immediately which is why the committee substitute was prepared. The states needs to have an impartial organization and the council seems to be that organization because it doesn't consider one side or the other. He noted that at least it could get things started. The idea is to gain as much data as possible, and to check out the programs. The nuances would be done by the board. Number 0492 REPRESENTATIVE MURKOWSKI asked Mr. Jardell how much would it cost to do what the proposed House committee substitute is suggesting. MR. JARDELL replied it would cost anywhere from $50,000 to $2 million. There would also be costs for litigation, support services and contracting fees. There is a lot of room to add on incidental costs. Number 0576 CHAIRMAN KOTT commented the cost for software is anywhere from $3,000 to $150,000 per unit depending on the services associated with it. The figure of $50,000 is probably on the low end when looking at personnel, meetings, office space, length of time from start to finish, and support staff. The figure is probably closer to $1 million. Number 0675 REPRESENTATIVE GREEN noted the technical portion is probably closer to $100,000. That doesn't include any litigation expenses. Number 0700 REPRESENTATIVE MURKOWSKI asked what is happening with the process now. In other words, if this wasn't done, where would it put the state when it comes to the year 2000 census? Number 0734 CHAIRMAN KOTT replied there would have to be a supplemental appropriation probably from the legislature's and the Department of Labor's budget for the software. Number 0754 MR. JARDELL replied it's a good question. It speaks to the reason for the proposed House committee substitute. No one knows what would happen. No one is taking the responsibility at this time to get the ball rolling. It is a state-federal program and most every state is participating. Kathryn Lizik from the Department of Labor has been working to designate different geographical features into blocks to be used to collect data from. In towns and municipalities, the blocks are mostly the area of a city block, but there are a lot of blocks for a state with a very small population. There is no plan once she is finished with that. The Division of Elections [Office of Lieutenant Governor], and the Department of Labor have indicated that they aren't doing anything. Number 0868 MR. MOFFATT added that he was tangentially involved with the 1970 and 1980 reapportionment. The boards were operating in 1969 and 1979, respectively. Here, the board will not be constituted until the year 2000. "So, we're behind the eight ball in the substantive loss to catch up." Number 0929 JAMES BALDWIN, Assistant Attorney General, Governmental Affairs Section, Civil Division, Department of Law, came before the committee to testify. He said a "severability" clause in a bill makes him nervous. The drafter, obviously, was concerned that something in the bill may be found to be unconstitutional. At least, that's what he did as a bill drafter for the legislature several years ago. He is involved in the preclearance activity on voting laws to the U.S. Department of Justice (DOJ). He is, therefore, concerned how the state will be positioned for the next reapportionment. In the last election, the people voted on a process for a redistricting board composed of the three branches of government, under the theory that the balance would lead to a fairer process. That's how it was presented to the people, and he believes that the people accepted and believed that. He is concerned, therefore, to see one branch tipping that balance in the approach taken. "Now, you and I know that if you can control how a board is staffed and the kind of computer equipment that it uses, any kind of data that it considers, you have a big leg up over how that board functions." That is how the other two entities involved would view it. This is a partisan political process, and the aim of the constitutional amendment was to try to get away from that. He is concerned purely from a nonpartisan approach. And, having to be involved in the preclearance and litigation of this, he is concerned that a line is being crossed. He has discussed with Mr. Kevin Jardell the need for a task force including a three-branch effort. Therefore, he was disappointed to see this type of approach. Maybe, Mr. Jardell is trying to get there somehow, but is this the type of process that was intended with the constitutional amendment? he asked. He noted that there is a group within the Administration. It is set to meet tomorrow. The committee will hear from the departments involved in this area that the big problem is money. The Administration has given it a lot of thought in terms of cost and computer systems, but it realizes it can't do it on its own. The legislature will have to appropriate money. There is a need to get things going, but he questions the approach of placing it entirely within the legislative council. Number 1264 MR. BALDWIN further stated that he is also concerned about the sampling numbers. He was the losing party in the Hickel v. Cowper case, which tried to define the terms of the constitutional budget reserve fund in terms of appropriations. The Department of Law said that there was no problem in passing a statute interpreting and making the constitution specific. The supreme court reminded the department, however, that was its job to interpret the constitution and to make it specific. The legislature could do things of that nature, but it would be given only some weight. That is the approach being taken here - trying to define the terms of a recently passed constitutional amendment as to what the legislature meant by the relying "relying on the U.S. census." The census plans to give the state two sets of numbers which is a problem in terms of litigation and for any number purposes. He has talked to a lot of people with technical knowledge within the Administration and they don't know how the numbers will turn out. Who will be the winner? Who will be the loser? As a result, the Administration doesn't know what to do about them. They might be good for some programs and might not be good for others, but the underlying motive is to try and get a more accurate census number. They are not intended to dilute anybody's voting lines. He reiterated the Administration doesn't know whether to support or oppose sampling numbers. The legislators have to look at that too in terms of partisan politics and districts and what they mean for each district. It really is a national political issue involving whether Montana will lose a seat or New York will gain a seat. It really has no relevance to Alaska with one congressman and a state that is largely rural. Number 1422 MR. BALDWIN further stated the Administration couldn't do a military survey without an appropriation. A survey is very expensive. It was the intent last year with HJR 44 not to do a military survey. But, if the Administration goes to preclear this with the U.S. Department of Justice, it may well ask the state to prove that there is no discriminatory effect. He wondered how the state would do that without a military survey. It has the power to do that under section 5 of the Voting Rights Act. If that is the case, the Administration will be back asking for money. In addition, he sees that the preclearance would be done by the person hired as the independent legal counsel to the board. The current regulation says that the chief legal officer for the state does the preclearance. He doesn't know how that would square with DOJ regulations. He doesn't know if that is totally baring. He would be relieved to be out of the preclearance game on this one because it will be hot and heavy. That concern needs to be considered. Number 1599 CHAIRMAN KOTT pointed out, that at an overview made before the committee by Kathryn Lizik [Department of Labor], he indicated he was going to forward to the Speaker of the House a letter suggesting an ad hoc committee consisting of one person from the House and Senate, two people from the Administration, and one person from the Department of Law. That committee would meet on a periodic basis, so that everybody knew what was going on. He has also had three conversations with the Department of Labor indicating that as well, but at this point the "left hand is out here and the right hand is out here, and vice versa." Number 1650 MR. JARDELL noted that Representative Green has contacted the Administration on several occasions, and that he has spoken with them as well on many occasions. They are still waiting for a return phone call to convey the point person. The bill speaks to the need to do something, and it speaks to the importance of acting on it, given the time left in the session. MR. JARDELL further noted that DOJ regulations say, "or other authorized person." According to Representative Green's office and Legislative Legal and Research Services [Legislative Affairs Agency], the "other authorized person" would be in line with the type of position in the bill. MR. JARDELL further stated, in referencing partisanship, the importance of ensuring that the adequate tools are provided far outweigh any speculation of partisanship. It is recognized that this has to get done, but nobody is doing anything about it, which is why the bill is here. Number 1758 REPRESENTATIVE GREEN asked Mr. Jardell to discuss the severability clause in the bill. MR. JARDELL replied the severability clause is in the bill because there is doubt about what the courts would do. But, because the importance of this is so high, if a portion is found unconstitutional that's fine and it should be knocked out. The assurance of the tools that are necessary is the reason for the severability clause. Number 1796 MR. MOFFATT stated the Senate Finance Standing Committee rejected the $100,000 fiscal note for military surveys that Mr. Baldwin referenced. "This bill, that the Senate Rules Committee has sponsored was passed overwhelmingly in the Senate, specifically sets forth that we don't want anything more to do with surveys, particularly with the military. We want things to remain the same as they were in 1990. No discounting or discrimination against the military or any other Alaskan, and the numbers in 1990 the Justice Department cleared nondiscrimination. It cleared and okayed that we don't use surveys and statistical tinkering. The only reason that those samples have ever been used in the past in Alaska is to discriminate. The Justice Department has already cleared the procedure of using the census figures for head count - the enumeration that has been used for 210 years. We don't need to spend $100,000 to come up with any other justification. The census of 2000 will be (indisc.) there and that's all the numbers that the Department of Law or anybody else needs to justify a fair and equitable reapportionment or redistricting. And, the use of any surveys, I think, even might jeopardize our case. Thank you." Number 1874 REPRESENTATIVE GREEN stated the current federal administration would favor some sort of statistical analysis because, in very high concentrations of minorities, it's extremely difficult to get a true head count. In Alaska it's just about the opposite. A village count is very simple because everybody knows everybody. The only problem would be Anchorage which is broken down by small blocks. A true nose count in Alaska makes a whole lot more sense than trying to do some sort of projection that is envisioned for large metropolitan areas with extreme numbers of varying types of minorities. The Census Bureau has said for allocation of legislators at the federal level the actual head count will be used, and is leaving the individual states to determine how they will do it. "We're just saying, if it's good there, it should be good all the way around." Number 1953 CHAIRMAN KOTT closed the meeting to public testimony. Number 1977 REPRESENTATIVE JAMES made a motion to move the proposed House committee substitute for committee substitute for SB 99, 1-LS0380\S, Kurtz, 4/10/99, from the committee with individual recommendations and the attached fiscal note(s). REPRESENTATIVE CROFT objected. He remembers the arguments clearly on HJR 44, and the civilian versus military issue. The discrimination that is being discussed has long been a dead letter in the constitution. The word "civilian" hasn't been used in the constitution for decades. It was not appropriate to take out the word "resident" and the question is whether or not the state should be counting residents or nonresidents. Most people would think that the state would want to count the residents for reapportionment purposes. "We may have a significant amount of a population that it--the federal government will tell us very little about that is nonresident. There are various procedures to figure out whether they're residents or nonresidents, and we're being prohibited from using those. I think it's just plain silly to count people who don't reside here. It--and I think it's purely for partisan purposes on--on calculation on how they might vote that we're counting nonresidents in our apportionment. I was also here for the discussion of--of--of what we'd specifically would say in the reapportionment division to tie it to a very specific number, and I remember very clearly then Representative, now Speaker Porter saying we want--we wanted to be absolutely clear, let's tie it to a number that will be put out - the official decennial census of the United States. And, that's exactly what he wrote and was passed. The new Article 6, section 3 says, 'reapportionment shall be based upon the population within each House and Senate district as reported by the official decennial census of the United States.' Now, oops we find out we don't like the official decennial census of the United States, that over 200 years how we understand the best way to get an accurate count can develop, and in fact it's been shown over and over mathematically that for various reasons, sampling gives you a better number, If done right, it is--it is irrefutable on good numbers that with enough--with proper sampling can get you a better number than trying to count every single person. 1, 2, 3, oh did I get Bill? I'm up to a million three. That--so, we are now trying to fix the fact that we were overly precise then. We wanted to be precise and have a number. I remember Representative Porter saying it would not be open to debate. It really isn't. But--but, for again partisan political reasons we don't like the number that we tied ourselves to just a year ago and so we're gonna attempt to change it. Attempt, I say, because I don't think we have the power to do this. The Hickel v. Cowper opinion is very clear that what the twenty-first legislature has to say about what the twentieth legislature meant in putting before the public an amendment to the constitution that they for their own reasons approved just ain't particularly relevant. You know, some of us served then, not all of us, but us saying what they meant, more importantly proposing something that the people approved is just not our place in the--with three branches of government. We're suppose to have checks and balances on each other and interpreting the constitution is the classic role of the judiciary. It's why they were put there 200 years ago - to defend the minority against the majority, and to depend the legislature--the people against the legislature trying to go in certain areas. This is the problematic area that I think may--that's such a close vote on that constitutional amendment. People were legitimately worried about what we would do, we the legislature, if we were involved in something that was so important to us writing our own district lines. And, here we're trying to get more and more involved. We're threatening funding on positions, we're cutting off, we're trying to get in...To describe the leg. council as an impartial body, particularly with the history over the last two years of what is has done, strains (indisc.). This is a partisan group trying to get in--much involved in this area as they can and luckily we have very little that we can't do. We're buying ourselves a lawsuit to say what we can read in the statutes. We're trying to define what other people did and what other people approved. But, more importantly we're just more and more getting into an area that we know it is so important to us we can't be trusted with it. It's so important to us that we cannot resist the urge to play partisan games with. It's also the reason that there was such trouble--there was such worry about bringing the judiciary in. We're gonna put a case before the supreme court that says we've defined it one way were we right? And, the chief justice and four others are gonna vote on that and then the chief justice is gonna appoint a person to implement that. On this, on any number of--of judicial reviews it is troubling on the same separation of power argument to have that judicial officer involved. The heart of SB 99 to me is exactly what Mr. Moffatt ended with. We want things to say the same as they were in 1990. The 1990 census did an excellent job of gerrymandering this state in--tilted towards a Republican majority, and it is a desire that it stay that way. This is why we shouldn't be involved in this process at all. And I object for all the reasons...". Number 2264 REPRESENTATIVE JAMES said she agrees with a lot of what Representative Croft said. However, the legislature consistently tries to make, in other areas, laws that are criticized as unconstitutional. She believes that the court didn't make a decision based on the intent of her last constitutional amendment to the constitutional budget reserve fund or based on what she, as a voter, said it was. The court read every single word and their basic meanings. She believes it is necessary to have legislation that describes what the legislature's intent. She certainly wants to have everyone counted, but if "you don't count them where they're residing, where are you gonna count them? And, people should all be counted." Number 2351 REPRESENTATIVE MURKOWSKI stated there isn't anybody at this table or in this room that doesn't agree something needs to be started. Personally, she would have preferred an approach suggested by Mr. Baldwin and Chairman Kott - a task force comprised of members from the Administration and legislature, so that there isn't an appearance of bias or partisanship. She is not convinced that this is a perfect approach, but it is better than the alternative - inaction. CHAIRMAN KOTT agreed that this is not a perfect approach. A task force could have been formed, but it wouldn't have had any power to appropriate money. CHAIRMAN KOTT called for a roll call vote. Representatives Green, James, Murkowski and Kott voted in favor of the motion. Representative Croft voted against the motion. The motion passed with a vote of 4-1. The HCS CSSB 99(JUD), was so moved from the House Judiciary Standing Committee. ADJOURNMENT Number 2444 CHAIRMAN KOTT adjourned the House Judiciary Standing Committee meeting at 4:15 p.m.