Legislature(2007 - 2008)CAPITOL 120

05/03/2007 01:30 PM JUDICIARY


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
-- Please Note Time Change --
+= HB 225 POSSESSION OF WEAPON WHILE ON BAIL TELECONFERENCED
Heard & Held
+ HB 237 REMOVING A REGENT TELECONFERENCED
Failed To Move Out Of Committee
+ Bills Previously Heard/Scheduled TELECONFERENCED
                    ALASKA STATE LEGISLATURE                                                                                  
               HOUSE JUDICIARY STANDING COMMITTEE                                                                             
                          May 3, 2007                                                                                           
                           1:35 p.m.                                                                                            
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Representative Jay Ramras, Chair                                                                                                
Representative Nancy Dahlstrom, Vice Chair                                                                                      
Representative Bob Lynn                                                                                                         
Representative Ralph Samuels                                                                                                    
Representative Max Gruenberg                                                                                                    
Representative Lindsey Holmes                                                                                                   
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
Representative John Coghill                                                                                                     
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                              
HOUSE BILL NO. 225                                                                                                              
"An Act relating to misconduct involving weapons and bail."                                                                     
                                                                                                                                
     - HEARD AND HELD                                                                                                           
                                                                                                                                
HOUSE BILL NO. 237                                                                                                              
"An Act  authorizing the governor  to remove or suspend  a member                                                               
of the  Board of  Regents of  the University  of Alaska  for good                                                               
cause; establishing a procedure for  the removal or suspension of                                                               
a regent; and providing for an effective date."                                                                                 
                                                                                                                                
     - FAILED TO MOVE OUT OF COMMITTEE                                                                                          
                                                                                                                                
PREVIOUS COMMITTEE ACTION                                                                                                     
                                                                                                                                
BILL: HB 225                                                                                                                  
SHORT TITLE: POSSESSION OF WEAPON WHILE ON BAIL                                                                                 
SPONSOR(s): REPRESENTATIVE(s) JOHNSON                                                                                           
                                                                                                                                
03/27/07       (H)       READ THE FIRST TIME - REFERRALS                                                                        
03/27/07       (H)       JUD, FIN                                                                                               
04/13/07       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
04/13/07       (H)       Heard & Held                                                                                           
04/13/07       (H)       MINUTE(JUD)                                                                                            
04/25/07       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
04/25/07       (H)       Scheduled But Not Heard                                                                                
04/27/07       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
04/27/07       (H)       <Bill Hearing Canceled>                                                                                
04/30/07       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
04/30/07       (H)       Heard & Held                                                                                           
04/30/07       (H)       MINUTE(JUD)                                                                                            
05/03/07       (H)       JUD AT 1:30 PM CAPITOL 120                                                                             
                                                                                                                                
BILL: HB 237                                                                                                                  
SHORT TITLE: REMOVING A REGENT                                                                                                  
SPONSOR(s): STATE AFFAIRS                                                                                                       
                                                                                                                                
04/13/07       (H)       READ THE FIRST TIME - REFERRALS                                                                        
04/13/07       (H)       STA, JUD                                                                                               
05/01/07       (H)       STA AT 8:00 AM CAPITOL 106                                                                             
05/01/07       (H)       Moved CSHB 237(STA) Out of Committee                                                                   
05/01/07       (H)       MINUTE(STA)                                                                                            
05/01/07       (H)       STA RPT CS(STA) NT 4DP 3NR                                                                             
05/01/07       (H)       DP: JOHNSON, ROSES, GRUENBERG, LYNN                                                                    
05/01/07       (H)       NR: JOHANSEN, COGHILL, DOLL                                                                            
05/03/07       (H)       JUD AT 1:30 PM CAPITOL 120                                                                             
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
JEANNE OSTNES, Staff                                                                                                            
to Representative Craig Johnson                                                                                                 
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Provided comments during the discussion of                                                               
HB 225 on behalf of the sponsor, Representative Johnson.                                                                        
                                                                                                                                
ANNE CARPENETI, Assistant Attorney General                                                                                      
Legal Services Section                                                                                                          
Criminal Division                                                                                                               
Department of Law (DOL)                                                                                                         
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Provided comments during the discussion of                                                               
HB 225.                                                                                                                         
                                                                                                                                
BRIAN JUDY, Senior State Liaison                                                                                                
National Rifle Association - Institute for Legislative Action                                                                   
(NRA-ILA)                                                                                                                       
Sacramento, CA                                                                                                                  
POSITION STATEMENT:  Testified in opposition to HB 225.                                                                       
                                                                                                                                
GARDNER COBB, Captain                                                                                                           
Anchorage Police Department (APD)                                                                                               
Anchorage, Alaska                                                                                                               
POSITION  STATEMENT:   During  hearing of  HB  225, testified  in                                                             
opposition to the NRA's position.                                                                                               
                                                                                                                                
MICHAEL BARNHILL, Senior Assistant Attorney General                                                                             
Labor and State Affairs                                                                                                         
Department of Law (DOL)                                                                                                         
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Supported HB 237.                                                                                        
                                                                                                                                
NANCY MANLY, Staff                                                                                                              
to Representative Bob Lynn                                                                                                      
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:   Provided comments during  the discussion of                                                             
HB 237 on behalf of the sponsor, Representative Lynn.                                                                           
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
CHAIR JAY  RAMRAS called the  House Judiciary  Standing Committee                                                             
meeting  to  order  at  1:35:49   PM.    Representatives  Ramras,                                                             
Samuels, Lynn, Gruenberg, and Dahlstrom  were present at the call                                                               
to order.   Representative Holmes  arrived as the meeting  was in                                                               
progress.  Representative Coghill was excused.                                                                                  
                                                                                                                                
HB 225-POSSESSION OF WEAPON WHILE ON BAIL                                                                                     
                                                                                                                                
1:36:33 PM                                                                                                                    
                                                                                                                                
CHAIR RAMRAS announced that the  first order of business would be                                                               
HOUSE  BILL NO.  225, "An  Act relating  to misconduct  involving                                                               
weapons  and  bail."   [Before  the  committee was  the  proposed                                                               
committee  substitute  (CS)  for  HB  225,  Version  25-LS0710\M,                                                               
Luckhaupt, 4/11/07, which  had been adopted as the  work draft on                                                               
4/13/07 and amended on 4/30/07.                                                                                                 
                                                                                                                                
1:37:05 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  DAHLSTROM made  a motion  to [adopt  the proposed                                                               
committee  substitute  (CS)  for  HB  225,  Version  25-LS0710\K,                                                               
Luckhaupt,  5/1/07,  as   the  work  draft].     There  being  no                                                               
objection, Version K was before the committee.                                                                                  
                                                                                                                                
1:37:17 PM                                                                                                                    
                                                                                                                                
JEANNE  OSTNES, Staff  to  Representative  Craig Johnson,  Alaska                                                               
State  Legislature,  after noting  that  members  should have  in                                                               
their  packets  a  letter from  the  National  Rifle  Association                                                               
(NRA), stated that  she has been working with the  NRA to address                                                               
its  concerns  with  the  bill.     To  that  end,  the  proposed                                                               
amendment, labeled  25-LS0710\K.1, Luckhaupt,  5/3/07, [Amendment                                                               
1] came at the request of the NRA.                                                                                              
                                                                                                                                
MS. OSTNES, in  response to a question, indicated  that Version K                                                               
no  longer   contains  Version  M's   proposed  addition   of  AS                                                               
12.30.018; this change,  via Amendment 1 to Version  M, also came                                                               
at the request of the NRA.                                                                                                      
                                                                                                                                
1:42:24 PM                                                                                                                    
                                                                                                                                
ANNE  CARPENETI,  Assistant   Attorney  General,  Legal  Services                                                               
Section, Criminal Division, Department  of Law (DOL), in response                                                               
to a question,  stated that proposed AS  12.30.018 mandates under                                                               
Title 11 that  a person on release, before and  after trial for a                                                               
felony, not  possess a concealed  firearm.  The deletion  of this                                                               
provision  necessitated  altering  the  statutory  references  in                                                               
Section  1 of  Version K;  Section 1  now references  proposed AS                                                               
11.61.200(a)(13)and  AS 11.61.210(a)(9).    These provisions  are                                                               
addressing those circumstances  in which the bill  would create a                                                               
higher  crime for  carrying  concealed in  violation  of a  court                                                               
order not to while out on bail.                                                                                                 
                                                                                                                                
MS. CARPENETI further  stated that currently it is  a crime under                                                               
AS 11.56.757  for any  person to violate  a condition  imposed by                                                               
the court in connection with a  bail release.  This bill, HB 225,                                                               
makes these  crimes a  class C  felony or  a class  A misdemeanor                                                               
under certain circumstances.                                                                                                    
                                                                                                                                
1:44:38 PM                                                                                                                    
                                                                                                                                
MS.  OSTNES noted  that  in a  letter from  Brian  Judy, the  NRA                                                               
wanted to make sure the court  had the full discretion to choose.                                                               
The proposed amendment  labeled 25-LS0710\K.1, Luckhaupt, 5/3/07,                                                               
addresses this request.                                                                                                         
                                                                                                                                
REPRESENTATIVE GRUENBERG  noted his agreement with  Mr. Judy that                                                               
the court needs discretion.                                                                                                     
                                                                                                                                
CHAIR RAMRAS asked if DOL supported the changes to Version K.                                                                   
                                                                                                                                
MS. CARPENETI  offered her belief  that she has no  concerns with                                                               
someone  out on  bail  not  being allowed  to  carry a  concealed                                                               
weapon.   The judge  already has  the discretion  with sentencing                                                               
and this has not changed.  This bill just raises the penalties.                                                                 
                                                                                                                                
1:46:35 PM                                                                                                                    
                                                                                                                                
CHAIR RAMRAS expressed concern that  the bill has been changed by                                                               
many degrees.  He asked whether the bill still does anything.                                                                   
                                                                                                                                
MS. OSTNES responded that the  bill now separates misdemeanor and                                                               
felony.   Currently, if an  individual is carrying a  firearm, in                                                               
violation of condition of release, it is a misdemeanor.                                                                         
                                                                                                                                
CHAIR  RAMRAS questioned  whether  it depends  upon whether  [the                                                               
initial charge] was for a misdemeanor or a felony.                                                                              
                                                                                                                                
MS.  OSTNES replied  that,  without this  bill,  if someone  were                                                               
charged  with  carrying  a  concealed  weapon,  he/she  would  be                                                               
charged with  a misdemeanor,  whether the  original charge  was a                                                               
misdemeanor or  a felony.   Under the  bill, an  individual would                                                               
now  be  charged  with  a   second  misdemeanor  for  carrying  a                                                               
concealed weapon, if  the original charge was  for a misdemeanor.                                                               
Furthermore, the  bill would cause  an individual charged  with a                                                               
felony  to  receive a  second  felony  charge  for a  carrying  a                                                               
concealed weapon.                                                                                                               
                                                                                                                                
1:49:05 PM                                                                                                                    
                                                                                                                                
MS. OSTNES  further explained that on  pages 3 and 5,  HB 225 now                                                               
includes AS  47.12.080, which pertains  to juveniles.   Juveniles                                                               
are not  released on bail,  but on  "condition of release".   The                                                               
inclusion of  AS 47.12.080 would  mean a juvenile is  now subject                                                               
to  the same  conditions as  an adult.   Finally,  in Section  3,                                                               
Version  M,  AS  12.30.018,  was   removed.    This  removed  the                                                               
mandatory aspect, as requested by  Representative Coghill and the                                                               
NRA.    It  is  now  the judge's  discretion,  she  pointed  out.                                                               
[Version K, which was now  before the committee, does not include                                                               
AS 12.30.018 in Section 3.]                                                                                                     
                                                                                                                                
1:51:02 PM                                                                                                                    
                                                                                                                                
MS. OSTNES related that Amendment  1 would clarify that knowingly                                                               
possessing a  firearm that is  concealed on the person  while the                                                               
person  is   on  release  under  AS   12.30.020-12.30.040  is  in                                                               
violation of a condition imposed by the court.                                                                                  
                                                                                                                                
CHAIR  RAMRAS made  a motion  to adopt  Amendment 1,  labeled 25-                                                               
LS0710\K.1, Luckhaupt, 5/3/07, which read:                                                                                      
                                                                                                                                
     Page 3, line 15, following "(A)":                                                                                      
          Insert "in violation of a condition imposed by                                                                    
     the court"                                                                                                             
                                                                                                                                
     Page 5, line 3, following "(A)":                                                                                       
         Insert "in violation of a condition imposed by                                                                     
     the court"                                                                                                             
                                                                                                                                
There being no objection, Amendment 1 was adopted.                                                                              
                                                                                                                                
CHAIR  RAMRAS  asked  the  committee to  review  Version  K  with                                                               
Amendment 1 and then, seek the  point of view of Captain Cobb and                                                               
Brian Judy.                                                                                                                     
                                                                                                                                
MS.  OSTNES, in  response to  comments and  questions, reiterated                                                               
that this amendment is a clarification  at the request of the NRA                                                               
and that it be inserted on page 3.                                                                                              
                                                                                                                                
1:52:41 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  HOLMES asked  whether  the  language inserted  on                                                               
page  3, line  15,  subparagraph  (A), should  also  be added  to                                                               
subparagraph (B).                                                                                                               
                                                                                                                                
MS. CARPENETI responded that it was unnecessary.                                                                                
                                                                                                                                
1:53:09 PM                                                                                                                    
                                                                                                                                
CHAIR  RAMRAS related  his understanding  that  the bill  sponsor                                                               
does not want to violate the "right to bear arms."                                                                              
                                                                                                                                
1:54:16 PM                                                                                                                    
                                                                                                                                
BRIAN JUDY,  Senior State Liaison,  National Rifle  Association -                                                               
Institute  for Legislative  Action  (NRA-ILA),  shared the  NRA's                                                               
concerns  with   Version  K  including  the   automatic  penalty.                                                               
Amendment 1  addresses that concern  whereby the  court maintains                                                               
discretion.  The second concern pertains  to the felony.  The NRA                                                               
believes it  is not appropriate to  subject a person to  a felony                                                               
simply  for being  accused of  a  prior offense.   Therefore,  he                                                               
suggested  including  language  stating that  if  the  underlying                                                               
felony is  dismissed, then  the subsequent  felony would  also be                                                               
dismissed.                                                                                                                      
                                                                                                                                
CHAIR RAMRAS  added this was  the same concern  as Representative                                                               
Coghill.                                                                                                                        
                                                                                                                                
REPRESENTATIVE  LYNN  opined  that   regardless  of  whether  the                                                               
individual  was found  not  guilty of  the  original offense,  he                                                               
still  "spit  in  the  face  of  the  court",  by  violating  the                                                               
condition of bail.  He asked if this is a separate issue.                                                                       
                                                                                                                                
MR. JUDY responded this would be  a violation of the order of the                                                               
court.   Existing law makes  this a  class A misdemeanor,  if the                                                               
underlying charge  is a felony.   The  NRA's concern is  that the                                                               
proposed law  would make  the current misdemeanor  a felony.   He                                                               
referred to  an example from his  letter to the committee.   Even                                                               
though  someone  may  know  his/her  own  innocence,  he/she  may                                                               
violate the order of the court  for personal protection.  Even if                                                               
he/she  is found  innocent, he/she  can still  lose the  right to                                                               
bear arms  because of the  subsequent felony charge.   The felony                                                               
charge does not seem to be appropriate, he opined.                                                                              
                                                                                                                                
1:58:37 PM                                                                                                                    
                                                                                                                                
MS. CARPENETI  acknowledged NRA's  concern, but pointed  out that                                                               
the concept of going back and  making a person innocent would not                                                               
work.   There  has already  been a  probable cause  determination                                                               
that the  person should be held  to answer for charges.   This is                                                               
all discretionary with the court, she  noted.  The court has made                                                               
a  determination  that for  the  safety  of the  community,  this                                                               
person should not carry concealed.   Then, to say that the person                                                               
can  make that  decision on  his/her own  is something  the court                                                               
cannot condone.                                                                                                                 
                                                                                                                                
CHAIR RAMRAS  commented that  he agrees  with both  Ms. Carpeneti                                                               
and Mr.  Judy.  This  difficulty means the  bill is not  ready to                                                               
pass out of the committee, he related.                                                                                          
                                                                                                                                
2:00:23 PM                                                                                                                    
                                                                                                                                
GARDNER  COBB,   Captain,  Anchorage  Police   Department  (APD),                                                               
offered  that the  problems, specifically  the levels  of firearm                                                               
violence,  in  Anchorage  are  different   than  those  in  other                                                               
communities.  The Anchorage Police  Department has probable cause                                                               
and evidence  before an arrest  is made.   He related  his belief                                                               
that  law abiding  citizens have  the right  to carry  arms.   By                                                               
going through  a magistrate,  the district  attorney, or  a Grand                                                               
Jury, the  police department operates  in a system of  checks and                                                               
balances for  probable cause.   A  law-abiding citizen  would not                                                               
disobey a  judge's direct order.   Raising this to a  felony is a                                                               
positive step.  However, he said,  there is still a lot more that                                                               
can be done to assist law enforcement in doing their job.                                                                       
                                                                                                                                
2:03:08 PM                                                                                                                    
                                                                                                                                
CHAIR  RAMRAS  asked  whether  passing  the  bill  will  actually                                                               
accomplish anything.                                                                                                            
                                                                                                                                
MR. COBB responded that the  APD, in a recent operation, arrested                                                               
more than  50 people  and recovered  24 guns.   He did  not think                                                               
this bill would make a widespread  big difference.  The APD needs                                                               
to identify the violent offenders, and put them in jail.                                                                        
                                                                                                                                
CHAIR RAMRAS said he understands  how this affects guilty people,                                                               
but he  does not know how  this will affect innocent  people, who                                                               
are then subsequently found guilty of the secondary offense.                                                                    
                                                                                                                                
2:05:38 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE DAHLSTROM  offered that  she is supportive  of any                                                               
law  that "gets  the bad  guy", but  she was  worried about  "the                                                               
unintended consequences."   If she was in the  position of having                                                               
to protect her  family, the law would not stop  her from carrying                                                               
concealed, she said.                                                                                                            
                                                                                                                                
MS. OSTNES  highlighted that  the law  only applies  to concealed                                                               
weapons, not visible weapons.                                                                                                   
                                                                                                                                
2:08:35 PM                                                                                                                    
                                                                                                                                
MR. JUDY indicated Version K still  raises a concern with the NRA                                                               
due to the  potential felony charge for a person  only accused of                                                               
an offense.   The NRA  is concerned for  the rights of  those who                                                               
have only been accused, but not convicted, of a prior offense.                                                                  
                                                                                                                                
2:09:39 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  LYNN said  although  he  understood the  concern,                                                               
still he  was not  able to  condone "spitting in  the eye  of the                                                               
court."    Therefore, he  questioned  whether  there might  be  a                                                               
middle ground, such that, a  person found innocent would have the                                                               
subsequent carrying concealed lowered to a misdemeanor.                                                                         
                                                                                                                                
MS. CARPENETI  expressed concern with  having a provision  in law                                                               
dismissing a  crime if an  individual were found innocent  of the                                                               
underlying  crime,  even  though   there  was  a  probable  cause                                                               
indictment with the court finding that individual dangerous.                                                                    
                                                                                                                                
REPRESENTATIVE LYNN  clarified that  he did  not want  the charge                                                               
dismissed, merely lowered to a misdemeanor.                                                                                     
                                                                                                                                
2:11:11 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG offered  an  analogy illustrating  that                                                               
point in time when one is  charged with an underlying crime, it's                                                               
not known  whether he/she  will be found  guilty of  the original                                                               
crime.  Referring to [Perkins  and Boyce's Cases and Materials on                                                             
Criminal Law and Procedure], he compared  the case at hand to the                                                             
law on escape.                                                                                                                  
                                                                                                                                
The committee took an at-ease from 2:12 p.m. to 2:14 p.m.                                                                       
                                                                                                                                
2:14:40 PM                                                                                                                    
                                                                                                                                
[Chair Ramras passed the gavel to Vice Chair Dahlstrom.]                                                                        
                                                                                                                                
REPRESENTATIVE  GRUENBERG  read from  page  506  of [Perkins  and                                                             
Boyce's  Cases and  Materials on  Criminal Law  and Procedure],as                                                             
follows,  "... On  the other  hand the  fact that  a prisoner  is                                                               
innocent of the offense, for which  he was arrested, is no excuse                                                               
for his  unpermitted departure from  legal custody."   He offered                                                               
that this  is general  policy; the reason  being the  law doesn't                                                               
permit people to take the law into  their own hands.  A person is                                                               
not being  penalized for being  under indictment; but  rather for                                                               
violating a court order.                                                                                                        
                                                                                                                                
2:17:59 PM                                                                                                                    
                                                                                                                                
[Vice Chair Dahlstrom returned the gavel to Chair Ramras.]                                                                      
                                                                                                                                
MR.  COBB, in  agreement  with  Representative Gruenberg's  legal                                                               
analogy, stated  he was sure that  many of those arrested  with a                                                               
firearm were told  by the judge not to carry  a firearm; but many                                                               
in the  gang culture lifestyle were  in the habit of  not obeying                                                               
what people in authority tell them.                                                                                             
                                                                                                                                
2:18:39 PM                                                                                                                    
                                                                                                                                
CHAIR RAMRAS set HB 225 aside,  to allow the sponsor to reconcile                                                               
these two  unique points of  view, with  regard to the  charge of                                                               
carrying concealed.   The DOL has  stated that if one  is charged                                                               
with  a  felony or  a  misdemeanor,  then the  subsequent  charge                                                               
should  be  maintained regardless  of  the  final ruling  on  the                                                               
initial charge.   The NRA believes, however, that  if the initial                                                               
charge is dropped, then the  subsequent charge should be dropped,                                                               
as well.                                                                                                                        
                                                                                                                                
REPRESENTATIVE  GRUENBERG professed  his  understanding that  the                                                               
supreme court  had addressed  this issue,  and supported  the DOL                                                               
position.                                                                                                                       
                                                                                                                                
2:19:49 PM                                                                                                                    
                                                                                                                                
MS.  CARPENETI  offered  to research  the  ruling  Representative                                                               
Gruenberg described.                                                                                                            
                                                                                                                                
[HB 225 was held over.]                                                                                                         
                                                                                                                                
HB 237-REMOVING A REGENT                                                                                                      
                                                                                                                                
2:20:05 PM                                                                                                                    
                                                                                                                                
CHAIR RAMRAS announced that the  final order of business would be                                                               
HOUSE BILL  NO. 237, "An  Act authorizing the governor  to remove                                                               
or suspend a member of the  Board of Regents of the University of                                                               
Alaska for good  cause; establishing a procedure  for the removal                                                               
or suspension of a regent; and providing for an effective date."                                                                
                                                                                                                                
CHAIR  RAMRAS commented  that the  problem of  removing a  regent                                                               
seems  to  have cured  itself;  nevertheless  the committee  must                                                               
still respond to HB 237.                                                                                                        
                                                                                                                                
REPRESENTATIVE LYNN,  speaking as  the chair  of the  House State                                                               
Affairs  Standing  Committee,  sponsor   of  HB  237,  said  that                                                               
although some  of the immediate  problem has been  resolved, this                                                               
might occur  again.   He said  that if  the governor  appoints an                                                               
individual  to a  position,  the governor  should  be allowed  to                                                               
remove or suspend that individual for  good cause.  The bill will                                                               
look out for  the university system, which  includes the students                                                               
and all of Alaska.                                                                                                              
                                                                                                                                
2:23:02 PM                                                                                                                    
                                                                                                                                
CHAIR RAMRAS  asked the sponsors whether  the university supports                                                               
HB 237.                                                                                                                         
                                                                                                                                
REPRESENTATIVE LYNN  said he was not  sure, nor was he  sure that                                                               
it was totally relevant.                                                                                                        
                                                                                                                                
REPRESENTATIVE GRUENBERG  pointed out  that the  committee packet                                                               
includes an  unsigned document from  Pete Kelly,  (former senator                                                               
and   representative   from   Fairbanks)   which   Representative                                                               
Gruenberg referred  to as a  bill authorizing removal  of regents                                                               
by the governor.   The University Board of Regents  is not taking                                                               
a  position,  and the  University  of  Alaska  has not  taken  an                                                               
official position, he relayed.                                                                                                  
                                                                                                                                
2:24:56 PM                                                                                                                    
                                                                                                                                
MICHAEL BARNHILL,  Senior Assistant  Attorney General,  Labor and                                                               
State  Affairs,  Department  of   Law  (DOL),  relayed  that  the                                                               
administration  and  the DOL  support  HB  237.   He  offered  to                                                               
discuss each of the provisions and answer any questions.                                                                        
                                                                                                                                
REPRESENTATIVE  GRUENBERG said  he has  spoken with  John Bitney,                                                               
Legislative  Liaison, and  Governor Palin,  who both  support the                                                               
bill.                                                                                                                           
                                                                                                                                
MR.  BARNHILL   explained  the  bill  creates   two  due  process                                                               
procedures.   First, the  governor may remove  a regent  for good                                                               
cause.  Second,  the governor may suspend a  regent under certain                                                               
circumstances.    Section  1  of  HB  237  discusses  legislative                                                               
findings and purposes, among which  is a finding that the framers                                                               
of  the constitution  intended to  insulate  the university  from                                                               
politics.  However, it did  not intend to immunize the university                                                               
from  nonpolitical  and  appropriate  legislative  and  executive                                                               
branch  oversight.   Section  1 also  finds  the legislature  has                                                               
delegated the Board of Regents  the power of self regulation, but                                                               
the Board  of Regents has not  adopted a bylaw that  provides for                                                               
the  removal of  a  regent.   The legislature  has  the power  to                                                               
create a procedure  under which the governor may  remove a regent                                                               
for   good  cause,   or  suspend   a  regent   under  appropriate                                                               
circumstances.                                                                                                                  
                                                                                                                                
MR.  BARNHILL continued  the review  of the  bill.   He explained                                                               
that page 2,  lines 6-14, set forth purposes to  clarify that the                                                               
governor may  not remove a regent  without good cause.   The bill                                                               
prescribes  the due  process procedure  under which  the governor                                                               
may remove a  regent for good cause, suspend a  regent in certain                                                               
circumstances,  and  accomplish  each  of  these  purposes  while                                                               
continuing to insulate the University  of Alaska and the Board of                                                               
Regents from politics.  Section 2  sets forth the removal and the                                                               
suspension procedures.                                                                                                          
                                                                                                                                
MR. BARNHILL first described the  removal procedure, as set forth                                                               
in  subsections (a)  and  (b) of  Section 2.    The governor  can                                                               
remove a regent for good cause  by providing the regent a copy of                                                               
the allegations with  an opportunity for a hearing.   The hearing                                                               
date  must be  given with  at least  10 days  notice.   After the                                                               
hearing, a  record of  the proceedings must  be submitted  to the                                                               
lieutenant governor.   Good cause  is defined in  subsection (g),                                                               
page  3, lines  11-27.   There  are a  variety of  types of  good                                                               
cause, including a violation of  the executive branch ethics act;                                                               
a  conviction of  a  felony;  a conviction  of  certain types  of                                                               
misdemeanors,  including dishonesty,  or  breach of  trust; or  a                                                               
misdemeanor  involving  the University  of  Alaska.   This  could                                                               
include nonfeasance  in office,  misconduct, inability  to serve,                                                               
neglect of  duty and confidence,  unjustified failure  to perform                                                               
duties,  and failure  to meet  the requirements  of service  as a                                                               
regent,  essentially   citizenship  of  the  United   States  and                                                               
residency in Alaska.                                                                                                            
                                                                                                                                
MR.  BARNHILL  next  described the  suspension  procedure.    The                                                               
governor may suspend a regent  in the following circumstances:  a                                                               
felony indictment; or  a misdemeanor charge involving  a crime of                                                               
dishonesty, or breach  of trust, of the University  of Alaska; or                                                               
allegations of non-feasance in office.                                                                                          
                                                                                                                                
CHAIR  RAMRAS  asked  if  a driving  under  the  influence  (DUI)                                                               
conviction would be included.                                                                                                   
                                                                                                                                
2:30:27 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG responded  if this  were a  misdemeanor                                                               
DUI, it  would not fall under  the misdemeanors as outlined.   If                                                               
the misdemeanor  DUI occurred on  University of  Alaska property,                                                               
this may  be reviewed  differently.   If there  is a  felony DUI,                                                               
that could be cause to suspend or remove, he said.                                                                              
                                                                                                                                
MR. BARNHILL closed  with a reminder that the  regent is afforded                                                               
the  opportunity  for  a  hearing   both  before  and  after  the                                                               
suspension.     The   governor   may  delegate   the  Office   of                                                               
Administrative  Hearings to  conduct the  hearing, but  the final                                                               
decision is made by the governor.                                                                                               
                                                                                                                                
2:32:35 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG noted, for the  record, that the bill is                                                               
crafted such  that if  the governor wants  to remove  the regent,                                                               
the regent  can also request  a hearing.  This  will specifically                                                               
authorize   the  Office   of   Administrative   Hearings  and   a                                                               
professional  administrative law  judge to  conduct the  hearing,                                                               
provide the  decision, and  have this  reviewed by  the governor.                                                               
As with any other administrative  hearing, it would be subject to                                                               
appeal through the superior court and the supreme court.                                                                        
                                                                                                                                
REPRESENTATIVE  GRUENBERG mentioned  that Representative  Coghill                                                               
had some questions before he left.                                                                                              
                                                                                                                                
MR. BARNHILL responded  he was aware of this and  although he had                                                               
not spoken directly  with Representative Coghill, he  did leave a                                                               
message with Representative Coghill's office.                                                                                   
                                                                                                                                
2:33:57 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE   GRUENBERG   offered   his   understanding   that                                                               
Representative Coghill  had concerns  regarding page 3,  line 12,                                                               
which contains some technical violations  of the Alaska Executive                                                               
Branch Ethics Act.   Representative Coghill was  concerned that a                                                               
regent could  be removed for  violating a technical  provision of                                                               
this act.                                                                                                                       
                                                                                                                                
MR.  BARNHILL replied  there  had been  a  similar discussion  in                                                               
House State  Affairs Standing  Committee.   It was  agreed during                                                               
this prior  discussion that the  governor "may" remove  a regent,                                                               
but it  is not mandatory.   Mr. Barnhill offered his  belief that                                                               
there  would need  to be  an egregious  violation of  any of  the                                                               
provisions before the governor would  take the unprecedented step                                                               
of removing a regent.                                                                                                           
                                                                                                                                
REPRESENTATIVE  GRUENBERG   added  that   Representative  Coghill                                                               
expressed  the  need  for  better definitions  for  each  of  the                                                               
charges  of misconduct,  neglect  of duty,  and incompetence,  as                                                               
they are  vague.   He recalled  that Representative  Coghill also                                                               
asked whether there  was a model for this bill,  or was the whole                                                               
clause drafted.                                                                                                                 
                                                                                                                                
MR. BARNHILL reported that the  original version of this bill was                                                               
based  on an  already established  procedure for  the removal  of                                                               
commission  members   from  the  Workers'   Compensation  Appeals                                                               
Commission.   The  committee desired  to draft  a procedure  with                                                               
which the  people and the  courts were already familiar  with, he                                                               
said.                                                                                                                           
                                                                                                                                
2:36:21 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG asked  for clarification  of the  terms                                                               
misconduct in office, neglect of duty, and incompetence.                                                                        
                                                                                                                                
MR. BARNHILL replied  that these are all common  terms in removal                                                               
statutes.    He related  his  confidence  there were  cases  that                                                               
interpreted the meaning  for each of these terms.   He reiterated                                                               
his belief  it would be  unlikely for  a governor to  employ this                                                               
basis for removal unless the grounds showed egregious conduct.                                                                  
                                                                                                                                
2:37:35 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  DAHLSTROM  asked why  the  Board  of Regents  had                                                               
chosen not to vote on this and put it in its bylaws.                                                                            
                                                                                                                                
MR. BARNHILL  responded he did  not believe the Board  of Regents                                                               
had expressed a  view as to whether this bill  was necessary.  He                                                               
referred to page  1, lines 12-14, of the  bill, which illustrates                                                               
there  is a  statute already  on the  books, AS  14.40.170(b)(1).                                                               
The  aforementioned statute  authorizes the  Board of  Regents to                                                               
regulate  and formulate  policy both  for the  governance of  the                                                               
University  and  the Board  of  Regents.   Under  that  statutory                                                               
authority, the  Board of  Regents could  provide a  procedure for                                                               
removing regents,  but the board has  not done so.   He suggested                                                               
that as  this issue is  unprecedented, the regents  never thought                                                               
they would have to address such a situation.                                                                                    
                                                                                                                                
2:39:59 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE SAMUELS  referring to page  2, line 19,  asked Mr.                                                               
Barnhill to clarify who would chair the hearing.                                                                                
                                                                                                                                
MR. BARNHILL replied that on page  3, lines 9-10, the governor is                                                               
authorized to delegate who conducts  the hearing to the Office of                                                               
Administrative  Hearings,  but  that   is  discretionary.    This                                                               
provides  the governor  the  opportunity to  set  up the  hearing                                                               
before  a neutral  and  objective decision  maker,  to avoid  any                                                               
appearance of political interference.                                                                                           
                                                                                                                                
REPRESENTATIVE SAMUELS  inquired as to  how the hearing  would be                                                               
held, should the governor chose not to delegate the hearing.                                                                    
                                                                                                                                
MR.  BARNHILL  replied  the  governor  may  conduct  the  hearing                                                               
himself/herself, or appoint a hearing officer.                                                                                  
                                                                                                                                
REPRESENTATIVE GRUENBERG  asked if  Mr. Barnhill had  spoken with                                                               
Mary Hughes, Chair of the University of Alaska Board of Regents.                                                                
                                                                                                                                
MR. BARNHILL offered  that when he'd spoken with  Ms. Hughes, she                                                               
indicated to  him it was  the policy of  the Board of  Regents to                                                               
not take  a position  on any pending  legislation.   However, she                                                               
did  express  the  need  to  know   if  DOL  views  the  bill  as                                                               
constitutional.     Mr.   Barnhill   advised  her   that  it   is                                                               
constitutional.   He added  that this  is not  to say  that there                                                               
could not be  constitutional concerns brought up  with respect to                                                               
the bill, and in that case, ultimately a court would decide.                                                                    
                                                                                                                                
2:42:45 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE HOLMES  questioned why  not just  leave it  to the                                                               
regents since  there is  a provision that  allows the  regents to                                                               
put a procedure in place.                                                                                                       
                                                                                                                                
MR. BARNHILL  characterized it as  a policy question.   This bill                                                               
would create  a check  and balance on  the University  of Alaska.                                                               
If  the  Board of  Regents  don't  take  action in  an  egregious                                                               
circumstance or doesn't have the  necessary authority at the time                                                               
of the circumstance, HB 237  would allow appropriate action to be                                                               
taken.                                                                                                                          
                                                                                                                                
2:44:34 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE SAMUELS asked how  many times regents have retired                                                               
or resigned in the middle of a term.                                                                                            
                                                                                                                                
2:45:22 PM                                                                                                                    
                                                                                                                                
NANCY  MANLY,  Staff to  Representative  Bob  Lynn, Alaska  State                                                               
Legislature,  in response  to  Representative  Samuels, said  she                                                               
didn't know whether any members of  the board had resigned in mid                                                               
term.   She then related  that she  had spoken with  Mary Hughes,                                                               
Chair of  the Board of  Regents.  Ms.  Hughes said the  board was                                                               
not  taking a  position  on  the bill  and  would  prefer not  to                                                               
testify.                                                                                                                        
                                                                                                                                
2:46:29 PM                                                                                                                    
                                                                                                                                
CHAIR RAMRAS offered his personal  feelings that he would like to                                                               
see  this regent  affair go  away.   He  questioned whether  this                                                               
unusual situation  should continue  to perpetuate  through unique                                                               
legislation, which he felt was  probably not relevant for decades                                                               
to come.                                                                                                                        
                                                                                                                                
REPRESENTATIVE SAMUELS questioned  whether this legislation would                                                               
add a layer  of politics and negate the entire  point of having a                                                               
Board of Regents.   With this legislation, a  governor could have                                                               
a hearing on an issue that might be political in nature.                                                                        
                                                                                                                                
REPRESENTATIVE  SAMUELS  continued  by  explaining  he  felt  the                                                               
entire point  of having  a Board  of Regents  is to  insulate the                                                               
university.   This legislation  was proposing  to reel  the board                                                               
back into the  political arena.  It allowed the  governor to have                                                               
a hearing  if a  regent does something  a governor  doesn't like.                                                               
For  example, a  regent could  have  a fundraiser  for the  wrong                                                               
person, and it could create a witch hunt atmosphere.                                                                            
                                                                                                                                
REPRESENTATIVE   LYNN   offered   his  belief   the   legislation                                                               
succinctly  lists  those  things  that would  provide  cause  for                                                               
suspension and  removal.   It was  too big  a stretch  to believe                                                               
this would get into partisan politics, he opined.                                                                               
                                                                                                                                
2:50:05 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  LYNN  moved  to   report  CSHB  237(STA)  out  of                                                               
committee  with individual  recommendations and  the accompanying                                                               
fiscal notes.                                                                                                                   
                                                                                                                                
2:50:44 PM                                                                                                                    
                                                                                                                                
CHAIR RAMRAS objected for the purpose  of discussion.  He felt it                                                               
perpetuated a bad  chapter in the history of the  State of Alaska                                                               
and the  history of the university.   It involved someone  he has                                                               
known  for 20  years, and  he said  he "would  like to  leave the                                                               
family a little bit of privacy,  and what little dignity they are                                                               
entitled  to,  until they  go  before  a  court  of law  and  are                                                               
adjudicated."                                                                                                                   
                                                                                                                                
REPRESENTATIVE  GRUENBERG opined  that the  bill would  provide a                                                               
set of good  cause for any body  like the Board of  Regents so it                                                               
was   insulated  from   politics  while   also  providing   known                                                               
standards.   The  review would  be before  an administrative  law                                                               
judge, professionally,  and it would insulate  the possibility of                                                               
a witch  hunt.  Currently, there  are no standards.   To leave it                                                               
with the  regents may make it  really political, as there  are no                                                               
standards.   Furthermore,  it  would put  them  in the  difficult                                                               
position of removing one of their own.                                                                                          
                                                                                                                                
REPRESENTATIVE HOLMES  expressed, given  the length to  which the                                                               
constitution went  to insulate the  university from  politics, it                                                               
would  be  best to  first  see  if  the  regents would  put  some                                                               
procedures in  place.   She said  she would like  to hold  off on                                                               
this bill, as the issue is very rare, until the regents decide.                                                                 
                                                                                                                                
REPRESENTATIVE   GRUENBERG   expressed   the  hope   that   [with                                                               
introduction and  hearing of the  bill] the regents will  get the                                                               
message,  and  thus  the  bill  will act  as  an  impetus  to  do                                                               
something.                                                                                                                      
                                                                                                                                
2:53:40 PM                                                                                                                    
                                                                                                                                
CHAIR RAMRAS commented  that he did not see a  need to perpetuate                                                               
this  situation, as  the Hayes  family has  a long  way to  go in                                                               
their journey, as well.                                                                                                         
                                                                                                                                
REPRESENTATIVE LYNN  responded this  is not about  any particular                                                               
family  or individual  who  is  not guilty  of  anything at  this                                                               
point.  This  is about being prepared for  future events, drawing                                                               
bright lines and standards for very  specific reasons.  It is not                                                               
political or vindictive.  It is a  bill whose time has come.  "Be                                                               
Prepared" as the Boy Scouts say, he remarked.                                                                                   
                                                                                                                                
2:54:16 PM                                                                                                                    
                                                                                                                                
A roll  call vote was  taken.  Representatives Lynn,  Holmes, and                                                               
Gruenberg  voted in  favor  of reporting  CSHB  237(STA) from  of                                                               
committee.  Representatives Ramras,  Samuels, and Dahlstrom voted                                                               
against  it.    Therefore,  CSHB 237(STA)  failed  to  move  from                                                               
committee.                                                                                                                      
                                                                                                                                
ADJOURNMENT                                                                                                                   
                                                                                                                                
There being no  further business before the  committee, the House                                                               
Judiciary Standing Committee meeting was adjourned at 2:54 p.m.                                                                 

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