Legislature(1995 - 1996)
02/07/1996 01:40 PM House JUD
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= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
February 7, 1996
1:40 P.M.
MEMBERS PRESENT
Representative Joe Green, Vice Chairman
Representative Con Bunde
Representative Al Vezey
Representative Cynthia Toohey
Representative David Finkelstein
MEMBERS ABSENT
Representative Brian Porter, Chairman
Representative Bettye Davis
COMMITTEE CALENDAR
HOUSE BILL 446
"An Act requiring home rule municipalities to bring actions for
certain injunctive relief relating to nuisances."
- HB 446 PASSED OUT OF COMMITTEE
Consideration of Barbara Miklos to the Board of Governors of the
Alaska Bar and Vicki A. Otte to the Alaska Judicial Council.
PREVIOUS ACTION
BILL: HB 446
SHORT TITLE: NUISANCE INJUNCTIONS BY HOME RULE MUNI'S
SPONSOR(S): REPRESENTATIVE(S) ROKEBERG
JRN-DATE JRN-PG ACTION
01/24/96 2523 (H) READ THE FIRST TIME - REFERRAL(S)
01/24/96 2524 (H) JUDICIARY
02/07/96 (H) JUD AT 01:00 PM CAPITOL 120
02/09/96 2683 (H) JUD RPT 3DP 1NR
02/09/96 2683 (H) DP: GREEN, BUNDE, TOOHEY
02/09/96 2683 (H) NR: FINKELSTEIN
02/09/96 2683 (H) ZERO FISCAL NOTE (LAW)
02/09/96 2683 (H) REFERRED TO RULES
WITNESS REGISTER
MARY HUGHES, Municipal Attorney
Municipality of Anchorage
632 West 6th Avenue
Anchorage, Alaska 99519-6650
Telephone: (907) 343-4545
POSITION STATEMENT: Testified on HB 446
LESLIE SCHUMACHER, Assistant Municipal Attorney
Municipality of Anchorage
632 West 6th Avenue
Anchorage, Alaska 99519-6650
Telephone: (907) 343-4545
POSITION STATEMENT: Testified on HB 446
ACTION NARRATIVE
TAPE 96-16, SIDE A
VICE CHAIRMAN JOE GREEN called the House Judiciary committee
meeting to order at 1:40 P.M. Members present at the call to order
were Representatives Bunde, Toohey and Vezey. Representative
Finkelstein arrived at 1:50 P.M. Representative Davis and Chairman
Porter were absent.
HB 446 - NUISANCE INJUNCTIONS BY HOME RULE MUNI'S
REPRESENTATIVE NORMAN ROKEBERG came forward to address HB 446 as
sponsor. He pointed out that on the face of it, this bill seemed
like a simple and harmless bill, but that it had significant
meaning. This legislation would allow municipalities to bring a
cause of action in equity to enjoin nuisances through an Alaska
Statute under the heading of "Abatement of Lewd Houses." He stated
that this was an old statute which had been on the books for a
number of years. Under this provision, the Attorney General of the
State of Alaska, as well as a private citizen, have standing to
enjoin lessees, agents or owners of a particular premise from
particular activities, most specifically prostitution, gambling,
and the use of controlled substances. Representative Rokeberg
stressed that the latter was a major issue.
REPRESENTATIVE ROKEBERG referenced a letter in the bill packet from
the Deputy Chief of Police of Anchorage, Duane S. Udland, as well
as, a Resolution from the Anchorage Chamber of Commerce, which was
a major piece of the mayor's fight against of crime in the City of
Anchorage.
Number 260
REPRESENTATIVE BUNDE asked that in it's basic terms this
legislation would allow a municipality to close down a crack house.
REPRESENTATIVE ROKEBERG said that this was correct.
REPRESENTATIVE VEZEY asked if any home rule municipalities had
attempted to obtain an injunction against a particular property
owner, as engaging in acts considered a nuisance and was then
denied this right. He stated that this was one of those areas
where he was unsure whether the legislature needed to give
authority to a sovereign entity when that right had never been
taken away in the first place.
Number 336
REPRESENTATIVE ROKEBERG said he couldn't answer this question, but
deferred to the legal experts on teleconference in Anchorage.
Representative Rokeberg stressed that where the Attorney General of
Alaska had been requested to take action regarding nuisances and
because they have indicated they don't have the resources, or
perhaps not even the will to do so, he felt that this was good
reason for the requested statutory revision.
Number 400
MARY HUGHES, Municipal Attorney, Municipality of Anchorage,
testified by teleconference from Anchorage. She responded to the
question by Representative Vezey regarding whether the municipality
had ever sought injunctive relief. The municipal law department
believed that under the statute as it now exists, the municipality
may not seek injunctive relief. This was not a stick in the bundle
of sticks which they might use to prevent crime in the Municipality
of Anchorage.
MS. HUGHES stated that this was one of the areas in which the
department proposed a resolution short of the enactment of the
proposed legislation before the committee now. Last year the
department talked to the Attorney General asking that they be given
special (indisc.) and the result was the appointment in effect, of
an almost, Assistant Attorney General to enforce these injunctive
acts. Unfortunately, this entire process had taken longer than
expected.
MS. HUGHES stated that some of the requirements of this special
appointment were ones that she could not agree to. For instance,
in order that this specially appointed person to enforce an act
vis-a-vis the state of Alaska, they would be required to report to
one of the Assistant Attorney General's in Anchorage. This type of
reporting system was not suitable from Ms. Hugh's perspective and
it was probably inappropriate for an Assistant Municipal Attorney
to do so.
MS. HUGHES stressed that the municipality would like the power to
act on nuisance claims independent of the state of Alaska. The
municipality had exhausted this other alternative. Ms. Hughes
pointed out that they have situations in which this law could be
used right now. She noted that, especially in Anchorage, the
landlords are not very cooperative. Equipped with this particular
provision, along with the municipal law office's willingness to
pursue these cases, Ms. Hughes thought they could make a dent in
those areas of crime where this type of civil abatement may be the
only way in which to get a landlord's attention.
MS. HUGHES noted that the municipality tried to resolve this
problem in other ways and when she mentioned this proposed
legislation to the Attorney General, he understood.
Number 670
REPRESENTATIVE VEZEY asked Ms. Hughes if she had ever gone to court
and been denied authority over these types of nuisance cases or if
the municipal assembly had ever tried to adopt these provisions on
their own.
MS. HUGHES said that the department doesn't interpret the law as
having the ability to do this. In other words, the law
specifically states that the "Attorney General shall or a private
citizen may..." She noted that the Attorney General's office does
not meet the description as being a private citizen. The
municipality has not utilized this particular law because they feel
as though they cannot do so.
REPRESENTATIVE VEZEY again asked if there had been any effort to
establish authority in the municipality to do this. As a home rule
municipality, he was unclear as to whether or not the state had
actually taken this power away from them. He asked if they had
tried to establish their authority under ordinance or bylaw which
would permit this.
Number 770
MS. HUGHES pointed out, as in many cases, the department always
tries to anticipate defense council's arguments and because this
particular law is on the books, the defense could argue that the
legislature has only allowed the Attorney General of the State of
Alaska or a private citizen to pursue this remedy. This was not
within the remedies available to the municipality. Therefore, the
municipality could find themselves in court arguing against the
argument that they don't have this authority. Ms. Hughes added in
theory that there was a possibility they may have the power to
this, but she was more comfortable pursuing the proposed the
legislation as a remedy.
Number 875
LESLIE SCHUMACHER, Assistant Municipal Attorney, Municipality of
Anchorage, testified by teleconference. She pointed out that one
of the important aspects of this legislation was that, it not only
allows the municipality to go after a tenant who might be selling
drugs, for example, but also allows them to go after a landlord who
rents to such a tenant. Ms. Schumacher also added, that if they
were required to enact a similar ordinance in the municipal code,
they probably could not specify anything related to landlord/
tenant laws, since these are already enumerated in state statute.
MS. SCHUMACHER said that if a nuisance was found under this
legislation, the court would automatically terminate the lease
between the landlord and tenant. The building would also be closed
for a year. The landlord would have to prove that he had been
trying to resolve this problem without success before the
municipality became involved. He would pay all attorney's fees in
the action and post a bond to ensure the nuisance would not happen
again if he was found in contempt of court.
Number 977
VICE CHAIRMAN GREEN asked about a particular situation where the
landlord is an absentee landlord, say for example, if he does not
live in the same municipality or area where the abuse is taking
place.
MS. SCHUMACHER pointed out that under this situation the landlord
would still be subject to the provisions just discussed. The
question relies on where the property is located.
REPRESENTATIVE VEZEY noted that as a landlord he was in a similar
situation with a tenant who was trafficking drugs. He wondered
about reasonable steps that would be allowed for an absentee
landlord to rectify a problem such as this one.
Number 1124
MS. HUGHES said that she had been in the identical situation. This
present legislation was drafted to anticipate a situation where,
for example, drug trafficking had been taking place for an extended
period of time such as 6 months to a year. She stressed that
typically it would be a situation where a landlord would have
knowledge of the nuisance for a very extended period of time.
MS. HUGHES stated that these types of cases would be referred to
the Attorney General's office for prosecution, but because of
budget cuts and limited man power, this in the past, had not been
successful.
Number 1326
REPRESENTATIVE CON BUNDE asked what would trigger the use of this
provision other than prosecutorial discretion.
MS. HUGHES stated that it wouldn't be initiated from a
prosecutorial side since this would be a civil action, but the
Anchorage Attorney's office would decide if this was an appropriate
action under the circumstances. The municipality would have to
then prove these circumstances in a court of law.
Number 1424
REPRESENTATIVE ROKEBERG requested Ms. Hughes to clarify, in terms
of a remedy and the procedure, whether or not it would be possible
to require a forfeiture of sale of the property.
MS. SCHUMACHER stated that this provision wouldn't provide for a
sale or a forfeiture, but the landlord would be required to remove
any furniture or fixtures which were used to perpetuate the
nuisance. If the property owner did not respond at all, they would
be held in contempt of court and they would be required to pay up
to $1000 fine and could be imprisoned from a minimum of three
months to six months. If they didn't pay the $1000 fine, it would
become a lien on the property. The property could eventually be
forfeited to the municipality in this way, if the fine wasn't paid.
Number 1555
REPRESENTATIVE BUNDE made a motion to move HB 446 from the
Judiciary Committee with the attached zero fiscal note with
individual recommendations. Hearing no objection it was so moved.
Number 1570
VICE CHAIRMAN GREEN brought before the committee the reappointments
of Vicki A. Otte to the Alaska Judicial Council and Barbara Miklos
to the Board of Governors of the Alaska Bar.
Number 1630
REPRESENTATIVE BUNDE made a motion to pass the name of Vicki A.
Otte for consideration to the Alaska Judicial Council for purposes
of confirmation. Hearing no objection this consideration was so
moved.
Number 1660
REPRESENTATIVE CYNTHIA TOOHEY made a motion to pass the name of
Barbara Miklos for consideration to the Board of Governors of the
Alaska Bar for purposes of confirmation. Hearing no objection this
consideration was so moved.
ADJOURNMENT
REPRESENTATIVE GREEN adjourned the House Judiciary meeting at 2:10
P.M.
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