Legislature(1999 - 2000)
03/22/1999 01:08 PM House JUD
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
March 22, 1999
1:08 p.m.
MEMBERS PRESENT
Representative Joe Green
Representative Norman Rokeberg
Representative Jeannette James
Representative Lisa Murkowski
Representative Eric Croft
Representative Beth Kerttula
MEMBERS ABSENT
Representative Pete Kott, Chairman
COMMITTEE CALENDAR
HOUSE JOINT RESOLUTION NO. 3
Proposing an amendment to the Constitution of the State of Alaska
relating to initiatives regarding natural resources belonging to
the state.
- MOVED HJR 3 OUT OF COMMITTEE
HOUSE JOINT RESOLUTION NO. 7
Proposing an amendment to the Constitution of the State of Alaska
relating to initiative and referendum petitions.
- MOVED CSHJR 7(STA) OUT OF COMMITTEE
HOUSE JOINT RESOLUTION NO. 25
Proposing an amendment to the Constitution of the State of Alaska
relating to a petition for an initiative or referendum regarding
fish or wildlife.
- MOVED CSHJR 25(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 103
"An Act relating to civil actions by municipalities and certain
public corporations and prohibiting certain civil actions by them
against firearms or ammunition manufacturers and dealers."
- MOVED CSHB 103(JUD) OUT OF COMMITTEE
CS FOR SENATE BILL NO. 3(RLS)
"An Act relating to the crimes of murder, solicitation to commit
murder in the first degree, conspiracy to commit murder in the
first degree, manslaughter, and criminally negligent homicide;
relating to homicides of children; relating to registration as a
sex offender or child kidnapper; relating to the crime of
interference with custody of a child or incompetent person; and
providing for an effective date."
- MOVED HCS CSSB 3(JUD) OUT OF COMMITTEE
(* First public hearing)
PREVIOUS ACTION
BILL: HJR 3
SHORT TITLE: CONST. AM: WILDLIFE INITIATIVES
SPONSOR(S): REPRESENTATIVES(S) BUNDE
Jrn-Date Jrn-Page Action
1/19/99 16 (H) PREFILE RELEASED 1/8/99
1/19/99 16 (H) READ THE FIRST TIME - REFERRAL(S)
1/19/99 16 (H) RESOURCES, JUDICIARY, FINANCE
1/27/99 (H) RES AT 1:00 PM CAPITOL 124
1/27/99 (H) HEARD AND HELD
1/27/99 (H) MINUTE(RES)
2/01/99 (H) RES AT 1:00 PM CAPITOL 124
2/01/99 (H) HEARD AND HELD
2/01/99 (H) MINUTE(RES)
2/05/99 (H) RES AT 1:00 PM CAPITOL 124
2/05/99 (H) MINUTE(RES)
3/03/99 (H) RES AT 1:00 PM CAPITOL 124
3/03/99 (H) MOVED OUT OF COMMITTEE
3/03/99 (H) MINUTE(RES)
3/05/99 357 (H) RES RPT 2DP 2NR 1AM
3/05/99 357 (H) DP: MORGAN, HARRIS; NR: KAPSNER,
MASEK;
3/05/99 357 (H) AM: OGAN
3/05/99 357 (H) FISCAL NOTE (GOV)
3/05/99 358 (H) REFERRED TO JUD
3/17/99 (H) JUD AT 1:00 PM CAPITOL 120
3/17/99 (H) HEARD AND HELD
3/22/99 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HJR 7
SHORT TITLE: CONST AM: INITIATIVE/REFERENDUM PETITIONS
SPONSOR(S): REPRESENTATIVES(S) WILLIAMS
Jrn-Date Jrn-Page Action
1/19/99 17 (H) READ THE FIRST TIME - REFERRAL(S)
1/19/99 17 (H) STATE AFFAIRS, JUDICIARY, FINANCE
2/11/99 (H) STA AT 8:00 AM CAPITOL 102
2/11/99 (H) HEARD AND HELD
2/11/99 (H) MINUTE(STA)
2/18/99 (H) MINUTE(STA)
2/19/99 (H) STA AT 3:30 PM CAPITOL 102
2/19/99 (H) MINUTE(STA)
2/23/99 (H) STA AT 8:00 AM CAPITOL 102
2/23/99 (H) HEARD AND HELD
2/23/99 (H) MINUTE(STA)
2/25/99 (H) STA AT 8:00 AM CAPITOL 102
2/25/99 (H) MOVED OUT OF COMMITTEE
2/25/99 (H) MINUTE(STA)
2/26/99 318 (H) STA RPT COMMITTEE SUBSTITUTE(STA) 3DP
2DNP 1AM
2/26/99 318 (H) DP: JAMES, WHITAKER, HUDSON;
2/26/99 318 (H) DNP: SMALLEY, KERTTULA; AM: OGAN
2/26/99 318 (H) FISCAL NOTE (GOV)
2/26/99 318 (H) REFERRED TO JUD
3/05/99 377 (H) COSPONSOR(S): DAVIES
3/12/99 444 (H) COSPONSOR REMOVED: DAVIES
3/17/99 (H) JUD AT 1:00 PM CAPITOL 120
3/17/99 (H) HEARD AND HELD
3/22/99 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HJR 25
SHORT TITLE: CONST. AM: FISH & WILDLIFE INITIATIVES
SPONSOR(S): REPRESENTATIVES(S) OGAN
Jrn-Date Jrn-Page Action
3/08/99 389 (H) READ THE FIRST TIME - REFERRAL(S)
3/08/99 390 (H) RES, JUD, FINANCE
3/15/99 (H) RES AT 1:00 PM CAPITOL 124
3/15/99 (H) MOVED OUT OF COMMITTEE
3/15/99 (H) MINUTE(RES)
3/16/99 467 (H) RES RPT 5DP 3NR
3/16/99 467 (H) DP: OGAN, WHITAKER, HARRIS, BARNES,
3/16/99 467 (H) MASEK; NR: SANDERS, KAPSNER, MORGAN
3/16/99 467 (H) FISCAL NOTE (GOV)
3/16/99 467 (H) REFERRED TO JUD
3/17/99 (H) JUD AT 1:00 PM CAPITOL 120
3/17/99 (H) HEARD AND HELD
3/22/99 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 103
SHORT TITLE: LIABILITY RELATING TO FIREARMS
SPONSOR(S): REPRESENTATIVES(S) DYSON, Austerman, Halcro
Jrn-Date Jrn-Page Action
2/19/99 260 (H) READ THE FIRST TIME - REFERRAL(S)
2/19/99 260 (H) CRA, JUDICIARY
2/24/99 308 (H) COSPONSOR(S): AUSTERMAN
3/09/99 (H) CRA AT 8:00 AM CAPITOL 124
3/16/99 (H) CRA AT 8:00 AM CAPITOL 124
3/16/99 (H) MOVED CSHB 103(CRA) OUT OF COMMITTEE
3/16/99 471 (H) CRA RPT COMMITTEE SUBSTITUTE(CRA) NT
5DP 2NR
3/16/99 471 (H) DP: DYSON, HALCRO, HARRIS, MORGAN,
3/16/99 471 (H) MURKOWSKI; NR: JOULE, KOOKESH
3/16/99 471 (H) ZERO FISCAL NOTE (DCRA)
3/16/99 471 (H) REFERRED TO JUDICIARY
3/17/99 (H) JUD AT 1:00 PM CAPITOL 120
3/17/99 (H) SCHEDULED BUT NOT HEARD
3/22/99 (H) JUD AT 1:00 PM CAPITOL 120
BILL: SB 3
SHORT TITLE: CRIMES OF MURDER & CHILD MURDERS
SPONSOR(S): SENATOR(S) HALFORD, Phillips, Donley, Green, Leman,
Taylor, Pearce, Lincoln, Kelly Pete, Kelly Tim, Ward, Miller,
Mackie; REPRESENTATIVE(S) Cissna
Jrn-Date Jrn-Page Action
1/19/99 13 (S) PREFILED RELEASED - 1/8/99
1/19/99 13 (S) READ THE FIRST TIME - REFERRAL(S)
1/19/99 13 (S) JUD, FIN
1/22/99 (S) JUD AT 1:30 PM BELTZ ROOM 211
1/22/99 (S) MOVED OUT OF COMMITTEE
1/22/99 (S) MINUTE(JUD)
1/25/99 76 (S) JUD RPT 3DP 1NR
1/25/99 76 (S) DP: TAYLOR, HALFORD, ELLIS;NR:
TORGERSON
1/25/99 76 (S) FISCAL NOTE (COR)
1/25/99 76 (S) INDETERMINATE FN (ADM-2)
1/25/99 76 (S) ZERO FISCAL NOTE (LAW)
2/02/99 (S) FIN AT 9:00 AM SENATE FINANCE 532
2/02/99 (S) MINUTE(FIN)
2/02/99 135 (S) FIN RPT 9DP
2/02/99 135 (S) DP: TORGERSON, PARNELL, PHILLIPS,
GREEN,
2/02/99 135 (S) PETE KELLY, ADAMS, WILKEN, LEMAN,
DONLEY
2/02/99 135 (S) PREVIOUS INDETERMINATE FNS (ADM-2)
2/02/99 135 (S) PREVIOUS ZERO FN (LAW)
2/02/99 135 (S) PREVIOUS FN (COR)
2/16/99 (S) RLS AT 11:40 AM FAHRENKAMP RM 203
2/16/99 (S) MINUTE(RLS)
2/17/99 269 (S) RULES TO CALENDAR AND COMMITTEE
SUBSTITUTE NEW TITLE
2/17/99 269 (S) PREVIOUS FN (COR)
2/17/99 269 (S) PREVIOUS INDETERMINATE FNS (ADM-2)
2/17/99 269 (S) PREVIOUS ZERO FN (LAW)
2/18/99 293 (S) READ THE SECOND TIME
2/18/99 294 (S) RLS COMMITTEE SUBSTITUTE ADOPTED UNAN
CONSENT
2/18/99 294 (S) ADVANCED TO THIRD READING UNAN
CONSENT
2/18/99 294 (S) READ THE THIRD TIME CSSB 3(RLS)
2/18/99 294 (S) COSPONSOR(S): PEARCE, LINCOLN, PETE
2/18/99 294 (S) KELLY, TIM KELLY, WARD, MILLER,
MACKIE
2/18/99 294 (S) PASSED Y19 E1
2/18/99 295 (S) EFFECTIVE DATE(S) SAME AS PASSAGE
2/18/99 297 (S) TRANSMITTED TO (H)
2/19/99 248 (H) READ THE FIRST TIME - REFERRAL(S)
2/19/99 248 (H) JUDICIARY, FINANCE
3/03/99 (H) JUD AT 1:00 PM CAPITOL 120
3/03/99 (H) HEARD AND HELD
3/03/99 (H) MINUTE(JUD)
3/10/99 418 (H) CROSS SPONSOR(S): CISSNA
3/22/99 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
KEVIN JARDELL, Legislative Assistant
to Representative Joe Green
Alaska State Legislature
Capitol Building, Room 214
Juneau, Alaska 99801
Telephone: (907) 465-4931
POSITION STATEMENT: Testified on the Bess v. Ulmer case.
CORY WINCHELL, Administrative Assistant
to Representative Pete Kott
Alaska State Legislature
Capitol Building, Room 118
Juneau, Alaska 99801
Telephone: (907) 465-3777
POSITION STATEMENT: Testified on the Bess v. Ulmer case.
REPRESENTATIVE FRED DYSON
Alaska State Legislature
Capitol Building, Room 104
Juneau, Alaska 99801
Telephone: (907) 465-2199
POSITION STATEMENT: Sponsor of HB 103.
VICTOR GUNN, Legislative Administrative Assistant
to Senator Pete Kelly
Alaska State Legislature
Capitol Building, Room 510
Juneau, Alaska 99801
Telephone: (907) 465-2327
POSITION STATEMENT: Testified on HB 103.
JULI LUCKY, Researcher
for Senator Rick Halford
Alaska State Legislature
Capitol Building, Room 121
Juneau, Alaska 99801
Telephone: (907) 465-4958
POSITION STATEMENT: Testified on SB 3 on behalf of sponsor.
ANNE D. CARPENETI, Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
Telephone: (907) 465-3428
POSITION STATEMENT: Testified on SB 3.
ACTION NARRATIVE
TAPE 99-16, SIDE A
Number 0001
CHAIRMAN-DESIGNEE JOE GREEN called the House Judiciary Standing
Committee meeting to order at 1:08 p.m. Members present at the
call to order were Representatives Green, Rokeberg, Murkowski,
Croft and Kerttula. Representative James arrived at 1:26 p.m.
CHAIRMAN-DESIGNEE GREEN noted that Chairman Kott is absent today
and that he will be the acting chairman.
HJR 3 - CONST. AM: WILDLIFE INITIATIVES
HJR 7 - CONST. AM: INITIATIVE/REFERENDUM PETITIONS
HJR 25 - CONST. AM: FISH & WILDLIFE INITIATIVES
CHAIRMAN-DESIGNEE GREEN announced the first order of business in
HJR 3, Proposing an amendment to the Constitution of the State of
Alaska relating to initiatives regarding natural resources
belonging to the state; HJR 7, Proposing an amendment to the
Constitution of the State of Alaska relating to initiative and
referendum petitions; and HJR 25, Proposing an amendment to the
Constitution of the State of Alaska relating to a petition for an
initiative or referendum regarding fish or wildlife.
Number 0131
REPRESENTATIVE CROFT asked Chairman-designee Green whether it is
his intention to move the bills out of committee today.
CHAIRMAN-DESIGNEE GREEN replied yes, unless someone brings it to
his intention that there is a problem with them constitutionally or
legally - the purview of this committee. Whether or not they
should go to the House floor is under the purview of a different
committee.
Number 0177
REPRESENTATIVE CROFT stated Representative Williams' resolution
[HJR 7] has the most persuasive argument and for that reason he
doesn't think the approach of Representative Bunde (HJR 3) and
Representative Ogan [HJR 25] is right. Under the purview of this
committee, there isn't anything unconstitutional or legally infirm
about the resolutions. It is a policy choice. For those reasons,
he is opposed to HJR 3 and HJR 25; HJR 7 presents a closer call.
Number 0293
REPRESENTATIVE MURKOWSKI agrees that Representative Williams'
resolution is very different than Representative Bunde's in terms
of where the bar is set. Representative Williams' resolution talks
about the collection of signatures, while Representative Bunde's
resolution talks about the actual vote. They are two very distinct
resolutions; and, unfortunately, since they were lumped together at
the last hearing they are being viewed as the same.
Number 0367
REPRESENTATIVE KERTTULA stated all three resolutions present
significant policy problems. House Joint Resolution 3 and HJR 25
present issues that should be discussed at a constitutional
convention, especially since HJR 25 fully removes something that
the public had been able to do previously. She also has concerns
about HJR 7.
Number 0430
CHAIRMAN-DESIGNEE GREEN asked Representative Kerttula whether she
feels that none of the three resolutions pose a legal problem, but
instead a policy call.
REPRESENTATIVE KERTTULA replied HJR 3 and HJR 25 may have legal
problems and should be part of a constitutional convention. It
won't be known, however, until the end of the "court case."
Number 0461
REPRESENTATIVE MURKOWSKI stated she is not certain whether the
committee has adopted the proposed committee substitute. It was
indicated in the affirmative that the committee adopted it at the
last hearing.
Number 0505
REPRESENTATIVE ROKEBERG made a motion to move HJR 3 from the
committee with individual recommendations and the attached fiscal
note(s).
REPRESENTATIVE CROFT objected. A roll call vote was taken.
Representatives Green, Rokeberg and Murkowski voted in favor of the
motion. Representatives Croft and Kerttula voted against the
motion. The motion failed by a vote of 3-2. House Joint
Resolution 3 failed to move from the House Judiciary Standing
Committee.
Number 0619
CHAIRMAN-DESIGNEE GREEN called for a brief at-ease at 1:17 p.m. and
called the meeting back to order at 1:26 p.m.
CHAIRMAN-DESIGNEE GREEN noted the arrival of Representative James.
CHAIRMAN-DESIGNEE GREEN noted, in failing to pass HJR 3 out of
committee, it is still before the committee. He asked
Representative Croft to explain his objection.
Number 0653
REPRESENTATIVE CROFT stated he is not positive that the initiative
process is broken. There have been initiatives on the ballots that
he has agreed with and there have been initiatives on the ballots
that he has disagreed with. But, it has generally worked to effect
the will of the people. There isn't a two-thirds voting
requirement of the people for the other provisions and he is not
convinced that it should be a requirement for natural resources.
If there is something broken, it seems to be how an initiative gets
to the ballot rather than requiring a super majority for one
particular area. In addition, he is worried that if all three
resolutions go to the ballot it will be very confusing. If any of
the approaches have merit, it is a permutation of HJR 7. He
maintained his objection.
Number 0743
REPRESENTATIVE KERTTULA agrees with Representative Croft. She
reiterated she has constitutional concerns about HJR 3 and HJR 25
because they completely remove a right, especially HJR 25, and
there might need to be a constitutional convention rather than an
amendment.
Number 0815
CHAIRMAN-DESIGNEE GREEN indicated the objection is maintained. A
second roll call vote was taken. Representatives Green, Rokeberg,
James and Murkowski voted in favor of the motion. Representatives
Croft and Kerttula voted against the motion. The motion passed by
a vote of 4-2. House Joint Resolution 3 was so moved from the
House Judiciary Standing Committee.
Number 0857
REPRESENTATIVE KERTTULA stated there was quite a bit of testimony
indicating that 10 percent of those who voted in the preceding
general election within each house district would be difficult to
meet. She has empathy with ensuring that the entire state is
involved in the process, but nobody wants to see the process close
down. She offered an amendment to change "10 percent" to "2
percent".
CHAIRMAN-DESIGNEE GREEN objected for discussion purposes.
Number 0925
REPRESENTATIVE JAMES shares the same concern, but 10 percent is too
high and 2 percent is too low. She is not sure what the figure
should be, however. The right number is somewhere between 1 person
from each house district and 10 percent. She would accept
something bigger, but she will not vote for 2 percent. In
addition, it only calls for 30 out of the 40 house districts. The
less difficult districts to travel to could be used to get the
signatures.
Number 1019
CHAIRMAN-DESIGNEE GREEN noted that the average turnout is about
5,000 per district or lower which would only be 500 signatures. He
is reluctant to allow the current system because it allows the Rail
Belt to have so much influence. The bar should also be high enough
so that the ballots are not cluttered each year with resolutions.
He maintains leaving it at 10 percent.
Number 1145
REPRESENTATIVE MURKOWSKI likes Representative Williams' suggestion
of going to all areas of the state. Other states require 8 percent
with a signature gathering period of 90 to 150 days. Although 10
percent may be higher, there is a one-year period to collect
signatures here in Alaska. She is concerned about the outside
organizations that have targeted Alaska as a cheap place to get
something on a ballot. It is not like years ago when everybody in
the neighborhood was packing around a petition. Nowadays, petition
gathers are paid good money and are organized by outside
corporations. She supports HJR 7 and is comfortable with going as
high as 10 percent.
Number 1272
CHAIRMAN-DESIGNEE GREEN called for a brief at-ease at 1:38 p.m. and
called the meeting back to order at 1:40 p.m.
Number 1278
REPRESENTATIVE CROFT noted that this pertains to both initiatives
and referendums which are important rights. He doesn't know how
receptive the public will be on restricting its power to decide
issues via the initiative process and correct the legislature via
the referendum process. The referendum process is an area that the
legislature ought to be very careful before touching, given that it
is the public's last recall on what the legislature does. Maybe,
there ought to be a policy of not touching it. It is not used very
often and when it is, it is obvious that the people feel seriously
that the legislature has erred. He said, "It may not be for us to
tell them how they get that done."
Number 1358
REPRESENTATIVE ROKEBERG noted that referendum is referred to in
Article XI, section 5 of the state constitution, and the resolution
only deals with Article XI, section 3.
Number 1387
REPRESENTATIVE JAMES stated it is important to recognize that
Alaska has 365 million acres of land with a very small population
of which nearly half lives in the Anchorage Bowl. That calls for
outreach to ensure the folks in the less populated areas are not
left out, even though this might not be a good idea for other
states. Once an initiative is on the ballot and it represents
those in the Anchorage Bowl, it will pass, and the rest of the
votes from the rest of the people will mean nothing. She still
thinks 10 percent is too high, especially since there is a low
voter turnout in some of the rural areas and it will be some time
before there are more people in those areas.
Number 1587
REPRESENTATIVE MURKOWSKI asked Representative James what was the
discussion in the House State Affairs Standing Committee regarding
the percentages.
REPRESENTATIVE JAMES replied it was similar to today's discussion,
but there wasn't the same type of public testimony. There was a
motion to make it 5 percent, but it didn't pass. The committee
decided on 10 percent.
REPRESENTATIVE MURKOWSKI asked Representative James whether the
original bill called for 15 percent.
REPRESENTATIVE JAMES replied yes.
CHAIRMAN-DESIGNEE GREEN noted that the objection is maintained. A
roll call vote was taken. Representatives Green, Rokeberg and
James voted against the motion. Representatives Murkowski, Croft
and Kerttula voted in favor of the motion. The motion failed by a
vote of 3-3.
Number 1668
REPRESENTATIVE JAMES made a motion to move CSHJR 7(STA) from the
committee with individual recommendations and the attached fiscal
note(s).
REPRESENTATIVE CROFT objected. A roll call vote was taken.
Representatives Green, Rokeberg, James and Murkowski voted in favor
of the motion. Representatives Croft and Kerttula voted against
the motion. The motion passed by a vote of 4-2. The CSHJR 7(STA)
was so moved from the House Judiciary Standing Committee.
Number 1747
CHAIRMAN-DESIGNEE GREEN called for a brief at-ease at 1:50 p.m. and
called the meeting back to order at 1:51 p.m.
Number 1750
REPRESENTATIVE ROKEBERG made a motion to move CSHJR 25(JUD) from
the committee with individual recommendations and the attached
fiscal note(s).
REPRESENTATIVE CROFT objected.
REPRESENTATIVE CROFT noted that there is legitimate concern about
HJR 25, but the people are smart enough to sort it out. The
distinction between the aerial wolf hunt and the wolf snaring
initiatives prove that point. The people were able to see the
difference between prohibiting an act that didn't comport with a
fair chase and protecting a lifestyle choice. He doesn't believe
that taking it off the plate is appropriate.
Number 1825
REPRESENTATIVE JAMES stated there is no comparison between the two
initiatives because shooting wolves from an airplane was already
illegal. The people couldn't tell the difference. The
advertisements influenced the votes and didn't have anything to do
with reality. To say that the people can sort it out is a good
argument, if there is a level playing field for both sides. The
boards are the best system to manage fish and game, until someone
can come up with a better one. The initiative process is not it.
There are flaws with the initiative process. It doesn't have a
public process. It doesn't have the committees and the testimony
that the legislative process has. She sympathizes with the folks
that want to do something and the legislature simply doesn't listen
to them so they turn to the initiative process. She supports that
as a method of passing statutory law, but the valuable resources
such as fish and game need the public, committee and legislative
processes. "If we want to have a better system of managing fish
and game, then we should statutorily change the management--the
whole management, not just specific management of specific game and
specific fish."
Number 1944
REPRESENTATIVE KERTTULA noted that this is a representative
democracy and the initiative process is probably the cleanest and
most public oriented part of it because once an initiative is on
the ballot everybody has the right to vote on it. She is concerned
about restricting that process since people in Alaska feel strongly
about natural resource issues. It is also ironic to see the people
who supported "the resolution" that failed coming in to change the
process.
Number 1983
REPRESENTATIVE JAMES understands that this is a representative form
of democracy, but the representative part of government is "out the
window" when going to an initiative because each district loses its
voice when the "water is muddy." Once an initiative is on the
ballot, the votes are in Anchorage. "I don't if you heard that or
not, but that's where they are."
REPRESENTATIVE KERTTULA replied she heard the testimony.
Number 2029
REPRESENTATIVE ROKEBERG favors HJR 25 because Article VIII, section
2 of the state constitution clearly sets forth the legislature's
responsibility in providing for the utilization, development and
conservation of all natural resources belonging to the state for
the maximum benefit of the people. The power is reserved to the
legislature. He said, "I'm very concerned that the type of
initiatives that have occurred...And, I think the point's well
taken that with enough money and the changing demographics in this
state where people don't have the traditions of hunting and fishing
and gathering that we've had here for years, that we would put in
jeopardy to a very large investment by an outside interest group
that could gradually change our culture. And, I'm not willing to
take that risk entirely. Notwithstanding the sound arguments on
the other hand for the voice of the people. And, Mr. Chairman, I
think that this--if we don't do something it could be the end of
commercial fishing in the state of Alaska. If you look at the
number of commercial fishers versus the growing power and
importance of sport fishery, and I think justifiably so in certain
instances, but if we end up by ballot box animal husbandry and
theological choices, I think we're going to be wronged." He will
vote yes.
Number 2098
REPRESENTATIVE MURKOWSKI is concerned that HJR 25 is closer to a
revision of the constitution as opposed to an amendment. It is
completely taking away the ability of the people to vote on fish
and wildlife issues. It takes the state closer to the need for a
constitutional convention. She is not comfortable with that.
Number 2141
CHAIRMAN-DESIGNEE GREEN called for a brief at-ease at 2:00 p.m. and
called the meeting back to order at 2:02 p.m.
Number 2148
CHAIRMAN-DESIGNEE GREEN noted that Representative Murkowski brings
up a very good point. He referred to a memorandum from Legislative
Legal Services dated March 19, 1999 which states that all three
resolutions are constitutional as a method of eliminating
initiatives, and that they probably won't go to the point that the
state supreme court went to in Bess v. Ulmer.
Number 2212
REPRESENTATIVE JAMES stated the Bess case affected several parts of
the constitution. She asked what other part of the constitution
would HJR 25 affect.
Number 2233
KEVIN JARDELL, Legislative Assistant to Representative Joe Green,
Alaska State Legislature, stated that testimony on Bess v. Ulmer
indicates it is difficult to determine what will be a revision and
what will be an amendment. There were three constitutional
amendments before the Alaska Supreme Court, and it found that two
were amendments and one was a revision. The revision on a scale of
1 to 10 of how much it affects the constitution was a 10. It
affected almost every aspect of the constitution. The four-part
test, the extent that it affects the whole constitution and a
person's understanding of the implications of an amendment, was
laid down in that case.
Number 2299
REPRESENTATIVE ROKEBERG asked Mr. Jardell whether any
constitutional amendment with any degree of controversy would be
challenged in court prior to going to the ballot because of the
Bess case as a matter of course.
MR. JARDELL replied it is safe to say that the supreme court could
find factual determinations to make a decision on a challenge. It
is really hard to allow Bess to determine which resolution should
go forward. It is a preliminary case and it will take further case
law to narrow down what is a revision and what is an amendment,
unless the supreme court gives a bright-line test, which is not
expected.
Number 2347
REPRESENTATIVE ROKEBERG noted the only thing that could dissuade
counsel from introducing lawsuits is the Senate Finance Standing
Committee.
Number 2373
CORY WINCHELL, Administrative Assistant to Representative Pete
Kott, Alaska State Legislature, stated that the memorandum dated
March 19, 1999 from Legislative Legal Services talks about the
powers enumerated by the legislature and the Bess decision. The
courts have been slicing away at the initiative process in regards
to natural resources, fish, and wildlife for about 20 years now.
They have made inroads. The courts didn't want ballot-box voting
for allocation issues such as fish stocks, mining, natural
resources, etc. The memorandum indicated, based on legal precedent
available in this state, that the legislature has the power to
propose a constitutional amendment that would, if approved by the
people, reduce the power of the people to enact laws relating to
fish and game by initiative.
CHAIRMAN-DESIGNEE GREEN noted it sounds Draconian.
Number 2451
REPRESENTATIVE ROKEBERG made a motion to move CSHJR 25(JUD) from
the committee with individual recommendations and the attached
fiscal note(s).
REPRESENTATIVE CROFT objected.
TAPE 99-16, SIDE B
Number 0001
REPRESENTATIVE CROFT continued. There is confusion on the Bess
case because of expansiveness. The prisoners' rights proposed
amendment affected everything. The supreme court eliminated the
sentence that said, "No provision of this constitution may be
interpreted to require the State to recognize or permit marriage
between individuals of the same sex.", in the marriage proposed
amendment. The redistricting proposed amendment affected nine
different provisions of the state constitution, but the supreme
court said it was understandable. Therefore, he is not sure
whether there will be that much trouble with this case. It is not
going to be a huge burden.
CHAIRMAN-DESIGNEE GREEN noted that the objection is maintained. A
roll call vote was taken. Representatives Green, Rokeberg, James
and Murkowski voted in favor of the motion. Representatives Croft
and Kerttula voted against the motion. The motion passed by a vote
of 4-2. The CSHJR 25(JUD) was so moved from the House Judiciary
Standing Committee.
Number 0080
CHAIRMAN-DESIGNEE GREEN called for a brief at-ease at 2:12 p.m. and
called the meeting back to order at 2:15 p.m.
HB 103 - LIABILITY RELATING TO FIREARMS
CHAIRMAN-DESIGNEE GREEN announced the next order of business is HB
103, "An Act relating to civil actions by municipalities and
certain public corporations and prohibiting certain civil actions
by them against firearms or ammunition manufacturers and dealers."
CHAIRMAN-DESIGNEE GREEN indicated that the committee will take up
CSHB 103(CRA), and called on Representative Fred Dyson, sponsor of
the bill.
Number 0111
REPRESENTATIVE FRED DYSON, Alaska State Legislature, stated HB 103
is an Act that will prohibit political subdivisions from suing
firearm manufacturers for the misuse of legally manufactured and
distributed firearms. Six to seven cities have sued firearm
manufacturers and are seeking judgment to cover the cost of the
misuse of firearms. House Bill 103 is virtually the same as SB 77
which is on the way to the Senate floor. House Bill 103 will get
to the House floor at roughly the same time, if this committee
concurs with it.
Number 0173
VICTOR GUNN, Legislative Administrative Assistant to Senator Pete
Kelly, Alaska State Legislature, noted that HB 103 and SB 77 are
companion bills. They are identical in language and mirror each
other. They were created in response to the lawsuits brought by
municipalities throughout the United States against gun
manufacturers to recoup damages from the illegal use of their
products. Enfolded by recent tobacco lawsuits, municipalities are
attempting to supplement their general fund with lawsuits directed
at deep pockets - the manufacturers - for what they consider
politically incorrect products. They claim that manufacturers
allegedly have conspired to flood markets outside the cities with
strict gun laws knowing that they will reach the cities through a
black market. Further, the manufacturers are supposedly producing
more powerful guns in order to increase their sales. It is obvious
that the aim is to bankrupt the gun company by suing them for
medical costs and monetary damages of gun related crimes. This
litigation circumvents constitutional limits as well as democratic
debate. The gun control movement thinks it can win without passing
laws or winning elections. By using litigation to raise prices and
to drive manufacturers out of business, gun controllers can reduce
access to firearms without confronting the Second Amendment.
Reasonable people see the clear intent in using the court to
accomplish what any gun lobbyist has been unable to achieve in
federal and state legislatures. This clear abuse of the tort
liability system seeks to use potentially bankrupting lawsuits to
force makers of legal, but politically incorrect, products to quit.
The intent of this legislation is to prevent local governments from
seeking reimbursements for the cost of gun related violence from
businesses engaged in the lawful manufacture, sale, design or
marketing of firearms or ammunition. It is not the intent of this
legislation to prevent bringing an action for breach of contract or
warranty purchased by a political subdivision or local government
authority. Gun related manufacturing is a legal enterprise
producing quality products that are lawfully and safely used by
thousands of Alaskan for hunting, sport, recreation and protection.
It really has more to do with the people than the guns. It's
easier to blame the manufacturer than to have people take
responsibility for their actions. In a nationwide survey of
registered voters conducted by the American Firearms Council, 92
percent say that cities or states should not sue gun makers as a
means to stop violence; and, 67 percent say that enforcing current
laws against using firearms is more effective in addressing
criminal violence than limiting the number of firearms an
individual may purchase. He noted that the survey was done in
October of 1998 with a margin of error of plus or minus 3 percent.
Number 0341
REPRESENTATIVE CROFT referred to Representative Dyson's amendment
and stated he is concerned that it would prohibit a lawsuit for a
manufacturing defect such as shoddy metal.
REPRESENTATIVE DYSON stated he was told by the bill drafter that
poor workmanship is covered under breach of warranty. The
amendment makes it clear.
Number 0396
REPRESENTATIVE ROKEBERG asked whether there was a case with a
judgment against a gun manufacturer in Connecticut.
REPRESENTATIVE DYSON replied there was a case with judgment in
Brooklyn. It is subject to appeal.
REPRESENTATIVE ROKEBERG asked what was the amount of damages.
MR. GUNN replied $550,000 against 15 manufacturers.
Number 0423
REPRESENTATIVE CROFT is concerned about unintended consequences.
While no manufacturer should be liable for simply selling a lawful
product that somebody misuses, there are appropriate legal theories
for selling something for specific illegal purposes. The seller of
a car is generally not liable in the case of a hit-and-run, but if
that car is sold for a specific illegal purpose, the seller could
be held liable. It almost crosses the line into criminal
conspiracy. He said, "You cannot just hold Ruger liable for the
fact that some criminals use Ruger, but if I come to a gun dealer
and say, 'I want to kill the Pope.' Is that special
Popemobile--what armaments can I--exactly do I use and what armor
are piercing. And, they sell me exact tailored things that are
only appropriate for a specific purpose with full knowledge of that
purpose, you're not only criminally liable, but I think you
probably should be civilly liable." It is a lawful sale, but the
ultimate purpose was unlawful. It is related to the lawful sale,
manufacture, design, or marketing of firearms, but it is not
related to a negligent design, breach of contract, or breach of
warranty. He asked Representative Dyson why the bill says "a
person", if it is meant to stop municipal or governmental lawsuits.
Number 0521
REPRESENTATIVE DYSON replied it seems that knowingly supplying
equipment for a crime is accessory before the fact which is covered
in other parts of state and probably federal law.
Number 0539
REPRESENTATIVE CROFT noted that Representative Dyson is right. A
person on those facts could be criminally liable, but would be
immune under this section from civil liability.
REPRESENTATIVE DYSON stated that person would be prosecuted under
different sections.
MR. GUNN noted the bill was heard in two other committees that both
amended it to include other than municipalities such as a person.
It was felt that the word "lawful" covered a conspiracy to sell a
product for unlawful means. It isn't the intent to encourage
unlawful acts by gun manufacturers. There is no "smoking gun" like
in the tobacco suits. In those suits, there were misleading
memorandums and intent by the manufacturers to mislead the public
to believe that their product was not harmful. There hasn't been
anything like that in this legislation. In fact, "it" says that
the product is designed to be dangerous, but it is designed for
lawful purposes: sport, recreation and protection. The intent of
the bill is to prevent frivolous lawsuits against firms that
manufacture a lawful product.
Number 0658
REPRESENTATIVE ROKEBERG asked whether it is correct that a number
of suits have been filed because of the Brooklyn case on behalf of
municipalities.
REPRESENTATIVE DYSON cited: New Orleans, Chicago, Atlanta,
Bridgeport, and Miami Dade. Los Angeles, Boston, Philadelphia, St.
Louis, and San Francisco are coming. Several states are starting
to limit the liability suits like Alaska.
Number 0709
CHAIRMAN-DESIGNEE GREEN asked Representative Dyson whether any of
those cases have gone to settlement.
REPRESENTATIVE DYSON replied the Brooklyn case has been awarded and
is now under appeal.
CHAIRMAN-DESIGNEE GREEN called for a motion to adopt Representative
Dyson's amendment.
Number 0709
REPRESENTATIVE CROFT made a motion to adopt Amendment 1
[1-LS0503\D.1, Ford, 3/19/99]. There being no objection, it was so
adopted. It reads as follows:
Page 1, lines 9-10
Delete "for negligent design"
Insert "resulting from a negligent design, a
manufacturing defect"
Number 0764
REPRESENTATIVE CROFT stated he continues to worry about unintended
consequences because the bill is drawn so broadly.
Number 0848
REPRESENTATIVE ROKEBERG asked Representative Dyson whether this is
based on handguns and not other firearms.
REPRESENTATIVE DYSON replied he is not sure that handguns were
specifically selected. The inference that many of the crimes are
created by handguns is logical, but in times past it was
traditional to use shotguns and Tommy guns, for example.
Number 0883
REPRESENTATIVE ROKEBERG asked Representative Dyson and/or Mr. Gunn
whether they have read any pleadings in court cases specifically
directed at handguns or are they directed at firearms in general.
REPRESENTATIVE DYSON replied the manufacturers that were being sued
produced firearms not just handguns. He doesn't believe that the
suits were specific to handgun.
REPRESENTATIVE ROKEBERG said he is concerned that including the
manufacturer and seller brings liability problems. What about a
situation where a youth picks up a weapon in a gun shop and
inadvertently shots someone? There would be immunity in that case
which is not the intent of the bill.
Number 0940
CHAIRMAN-DESIGNEE GREEN wondered whether the language "lawful sale"
is the seller.
REPRESENTATIVE KERTTULA stated it is being limited to the negligent
design or manufacturing defect. According to her research,
one-third of unintended shootings are when a child fires a loaded
gun or when somebody discharges a gun believing that it wasn't
loaded.
CHAIRMAN-DESIGNEE GREEN said that is negligence of the parent.
Number 1016
REPRESENTATIVE ROKEBERG asked what is "lawful marketing".
CHAIRMAN-DESIGNEE GREEN stated, if the owner of a shop loads a gun
and something happens, then there is negligence, but it shouldn't
fall back on the manufacturer of the firearm.
REPRESENTATIVE ROKEBERG noted the bill says "or seller".
CHAIRMAN-DESIGNEE GREEN noted a seller would not be exonerated, if
that seller negligently loads a gun and allows somebody to shot it.
REPRESENTATIVE ROKEBERG stated the language is drafted
disjunctively. It sets up a separate criteria for sellers. It
doesn't read "and/or"; it reads "or".
REPRESENTATIVE JAMES noted "or" means both of them.
REPRESENTATIVE ROKEBERG noted "or" means either one of them. It is
disjunctive, not conjunctive.
CHAIRMAN-DESIGNEE GREEN said the fact that it reads "or" means that
there doesn't have to be all of those for a cause of action.
Number 1130
REPRESENTATIVE CROFT stated part of the difficulty is the wording
"related to" - Page 1, line 8. It is very broad. It doesn't say
"solely based on" or "primarily concerning". It could be written
with less comprehensive language to accomplish its primary goal.
The lawful sale of a lawful product without anything more can't
form the basis of liability for a car or gun or whatever. The fact
that a person might use it for an illegal activity is not a basis
of reliability against the seller or manufacturer. Anything
peripherally related to any of these things and anything otherwise
irresponsible can be immunized.
Number 1224
REPRESENTATIVE KERTTULA noted it is especially so because of the
exception sentence - lines 9-10. It tries to get the exemption to
the immunity back up to the seller.
Number 1253
REPRESENTATIVE ROKEBERG asked Representative Dyson why the seller
vis-a-vis a retailer is included when it seems the actions are
against manufacturers not retailers.
REPRESENTATIVE DYSON replied the huge retailers in the country are
considered to be deep pockets, and the small arms manufacturing
industry is not doing well. The totality of the business is around
$1.4 billion. He cited Fred Meyers, Sears and Roebuck, and K-Mart
as deep pockets. Traditionally, the trend in court is to go after
them, and they don't want to be improperly sued. When he bought a
firearm at Fred Meyers the clerk would not put the ammunition on
top of the counter and the firearm at the same time. The clerk
walked with him out to the parking lot and handed him separate
bags.
Number 1421
CHAIRMAN-DESIGNEE GREEN suggested changing the language "related
to" with "predicated on" - Page 1, line 8.
REPRESENTATIVE CROFT stated it depends on how substantial that
relationship has to be. "Related to" is 1 percent, "based solely
on" is 100 percent, "primarily" is... He doesn't want to slow the
bill down, but he wants it to reflect what the majority within the
committee wants it to do.
Number 1508
MR. GUNN stated the language is the exact wording of a Georgia law
that passed its legislature and was signed into law by its
governor.
REPRESENTATIVE CROFT noted it was passed without the amendment.
REPRESENTATIVE JAMES noted Alaska is different.
Number 1549
REPRESENTATIVE ROKEBERG understands that there is a public policy
demand to immunize the sellers as well. But, the language is a
little too broad as it relates to the retailer. He is not real
comfortable with it, but he is very supportive of the bill itself.
CHAIRMAN-DESIGNEE GREEN asked Representative Rokeberg whether the
word "predicated" relieves some of his concern.
REPRESENTATIVE ROKEBERG replied not really. It is the nexus
between the act of selling and marketing that a whole plethora of
different scenarios can come into play causing injury. Unless it
can be separated and replaced with a different standard such as a
higher level of negligence, there could be a lot of personal injury
cases.
Number 1649
CHAIRMAN-DESIGNEE GREEN asked are the sellers at risk of liability
when automobiles are recalled because of a defective design? "We
want to make sure that the seller, unbeknownst to a flaw in the
design, is not going to be held reliable because he's a deep
pocket."
REPRESENTATIVE ROKEBERG stated the seller shouldn't be responsible
for a manufacturer problem. "It is not the act of selling per se,
it's the act of being a merchandiser for manufactured merchandize
is what we're trying to get at."
Number 1700
REPRESENTATIVE JAMES stated it seems that Representative Rokeberg
is dwelling on the term "marketing". She wondered whether "faulty
marketing" could be included in the language just amended. That
might not be the best term, but something like that to relieve his
concern.
Number 1745
REPRESENTATIVE KERTTULA stated as the bill is written now she
thinks a loaded gun left on a counter that a child picks up would
be covered by this statute when it is clearly negligent behavior.
And, that's not the intent of the bill.
Number 1801
REPRESENTATIVE DYSON stated this doesn't preclude a seller from
being sued for negligence in leaving a loaded weapon where a child
could misuse it. This only immunizes a seller against being sued
through the business of selling it. He offered the language "based
on" as an alternative for the language "related to". In addition,
it wouldn't do a disservice to his intention to strike the word
"marketing" from the bill. "And, frankly, as a certifiable gun
nut, I am uncomfortable about some of the marketing that goes on in
the firearm manufacturer that tends to be the approach. If you
look at some of the quasi-underground books that are marketed on
how to get anybody and how to do urban sniper fire against your
enemies and convert your weapons into fully automatic, change you
identity and how to escape, you know. Some of that stuff makes me
uncomfortable." His suggestions are not an amendment, just
respectful suggestions.
CHAIRMAN-DESIGNEE GREEN noted there is still the word "sale".
REPRESENTATIVE DYSON replied, and properly so.
Number 1960
REPRESENTATIVE JAMES stated is seems that the committee is trying
to separate the products from the actions. In other words, the
product itself is exempt, but what is done with the product is not.
Maybe, there is language that can separate the products and the
actions.
Number 1998
REPRESENTATIVE ROKEBERG stated that is precisely his point. It's
the manufactured item that he's been talking about. He suggested
language, "(indisc.) manufacturers or a retailer of that
manufactured firearm or ammunition". It would focus the act on
revolving around the handgun/firearm. It's not the act of selling
that's immunized. "You're only a conduit, if you're a wholesaler
or retailer. You're not the manufacturer. And, I think in the
theory here is the creation of and manufacture of firearms that's
causing the damage."
CHAIRMAN-DESIGNEE GREEN stated he would accept that, except the
word "dealer" is included in the title. If the intent is to keep
the dealer in the bill, he would suggest two paragraphs - one to
deal with the manufacturer and one to deal with the dealer. It is
too difficult to include both in one paragraph.
Number 2100
REPRESENTATIVE CROFT noted that typically a distributor is liable
for a defective product, even if there isn't any negligence. A
distributor has the right to go after a manufacturer in that case.
The language, "based on", suggested by Representative Dyson solves
most if not all of his concerns.
Number 2156
REPRESENTATIVE KERTTULA stated adding the language, "or to the
reckless endangerment by retailers", to line 8 would take care of
her concern, as well as Representative's James and Rokeberg. If
somebody put a loaded gun on a counter and a child picked it up,
there wouldn't be a bar from suing.
Number 2198
REPRESENTATIVE JAMES stated adding that language doesn't let them
go back to the manufacturer.
Number 2275
REPRESENTATIVE CROFT made a motion to delete the language "related
to" on line 8, and insert the language "based on". There being no
objection, it was so moved.
REPRESENTATIVE CROFT made a motion to include the language "or" on
line 8 between the words "manufacture," and "design,". There being
no objection, it was so moved.
CHAIRMAN-DESIGNEE GREEN asked whether there is still concern with
gross negligence of the seller, or is this enough to allow the
intention of the AS 09.65.155.
REPRESENTATIVE CROFT said he thinks so.
REPRESENTATIVE JAMES noted by taking "marketing" out...
Number 2448
REPRESENTATIVE MURKOWSKI noted the title still refers to dealers.
The committee is talking about two separate things.
CHAIRMAN-DESIGNEE GREEN stated, unless it is made very, very
cumbersome, would it be better to have two separate...
TAPE 99-17, SIDE A
Number 0001
CHAIRMAN-DESIGNEE GREEN continued. Can negligent endangerment
cover everything a seller might do? he asked. That's what the
committee is after.
Number 0014
REPRESENTATIVE KERTTULA noted that reckless endangerment is a
higher standard than just negligence. She would feel more
comfortable with just negligence because of that argument, but at
least it would cover some of the worst cases of somebody leaving a
loaded gun lying around.
Number 0069
MR. JARDELL stated using the language, "based on the lawful sale",
a cause of action wouldn't be based on the sale. There is an
argument of relating an action to the sale with using the language,
"related to the lawful sale". In the case of the language, "based
on the lawful sale", the cause of action would be based on the
negligent handling of the weapon. It would fix the problem of
ancillary negligence. General negligence would still be there as
long as it's not based on the actual sale. The New Orleans case
and several others have included the dealers in an attempt to get
them to stop selling the firearms through legal fees. Saying that
they should have known that these person were going to use the
weapons or they put an unusually large number on the street. There
are some reasons to include dealers, and there are some reasons to
preclude blanket immunity for negligent handling of firearms.
Number 0223
REPRESENTATIVE KERTTULA stated, with that testimony on the record
as the intent, she is comfortable with it.
Number 0241
MR. GUNN pointed out that one of the lawsuits in New Orleans
includes the people who sell firearms which is why marketing is
included in the bill.
Number 0270
REPRESENTATIVE CROFT made a motion to move CSHB 103(CRA), as
amended, from the committee with individual recommendations and the
attached fiscal note(s). There being no objection, CSHB 103(JUD)
was so moved from the House Judiciary Standing Committee.
CSSB 3(RLS) - CRIMES OF MURDER & CHILD MURDERS
CHAIRMAN-DESIGNEE GREEN announced the next order of business is
CSSB 3(RLS), "An Act relating to the crimes of murder, solicitation
to commit murder in the first degree, conspiracy to commit murder
in the first degree, manslaughter, and criminally negligent
homicide; relating to homicides of children; relating to
registration as a sex offender or child kidnapper; relating to the
crime of interference with custody of a child or incompetent
person; and providing for an effective date."
Number 0330
REPRESENTATIVE ROKEBERG made a motion to adopt the proposed House
committee substitute for CSSB 3, Version 1-LS0028\H, Luckhaupt,
3/9/99 as a working document. There being no objection, it was so
adopted.
REPRESENTATIVE ROKEBERG explained the proposed House committee
substitute raises the offenses to felonies and deletes misdemeanors
under AS 11.41 - page 3, lines 20-22.
Number 0418
REPRESENTATIVE CROFT asked whether the sponsor agrees with the
changes.
Number 0432
JULI LUCKY, Researcher for Senator Rick Halford, Alaska State
Legislature, stated the sponsor agrees with the changes made to the
proposed House committee substitute.
Number 0518
REPRESENTATIVE ROKEBERG made a motion to consider Amendment 1
[1-LS0028\H.2, Luckhaupt, 3/12/99]. There being no objection, it
was before the committee. It reads as follows:
Page 3, line 20:
Delete "AS 11.41"
Insert "AS 11.41.100 - 11.41.300 or 11.41.410 -
11.41.458"
Page 3, line 22:
Delete "AS 11.41"
Insert "AS 11.41.100 - 11.41.300 or 11.41.410 -
11.41.458"
REPRESENTATIVE ROKEBERG explained the amendment excludes the crimes
of custodial interference in the first and second degrees. The
sponsor is lukewarm on the idea, so he thought it should be
discussed by the committee.
Number 0588
REPRESENTATIVE CROFT stated "it" was already limited to a felony
and now this amendment takes out custodial interference as well.
REPRESENTATIVE ROKEBERG stated custodial interference in the first
and second degrees is still a felony.
REPRESENTATIVE CROFT stated all of the misdemeanors have already
been taken out and this amendment would take out a couple of the
felonious custodial interferences.
Number 0616
REPRESENTATIVE ROKEBERG stated "we" didn't want to delete Section
5 because it is an important fix for the Department of Law. He
said, "I guess my concern was, if you have--if you have a case that
come up with the DWI plus custodial interference makes you into--or
the--you have a death on a DWI death, it raises it to second-degree
murder. And that's where I..."
Number 0659
REPRESENTATIVE MURKOWSKI asked Representative Rokeberg, if her
husband takes her kids to Turkey for six years and goes underground
with them, whether it would still be considered a felony.
REPRESENTATIVE ROKEBERG replied not under the intent of SB 3.
Number 0711
MS. LUCKY stated the amendment would take out felony custodial
interference, as well as robbery in the first degree, robbery in
the second degree, extortion, and coercion. She is not sure
whether that is the intent of the sponsor of the amendment.
REPRESENTATIVE ROKEBERG stated, if that's the case, it is a
drafter's mistake.
MS. LUCKY further stated the proposed House committee substitute
took out custodial interference as a misdemeanor (custodial
interference in the second degree), but left in custodial
interference in the first degree - kidnapping one's own child and
going underground, for example. A felonious custodial interference
in the first degree is usually charged to get a warrant for
extradition. Criminal negligence is not only drunken driving, but
shaken baby syndrome, abusing a child until its death, and starving
a baby. This is exactly the type of person this bill is trying to
get - a history of abuse against children, acting recklessly
towards children, taking a child against an order, or kidnapping a
child across state lines, and then through criminal negligence kill
another child through shaken baby syndrome or abuse. That's the
type of person the bill is looking for. It is her understanding
that somebody who takes a child on vacation would not be charged
with felonious custodial interference. If somebody accidentally
killed that child through drunken driving, that would not fit into
the fact-pattern of this section of the bill. The sponsor believes
that taking out custodial interference waters down this section of
the bill. The sponsor is also concerned about the other sections
that the amendment deals with that are obviously a drafting error.
Number 0891
CHAIRMAN-DESIGNEE GREEN asked Representative Rokeberg which of the
numbers he didn't want in the amendment.
REPRESENTATIVE ROKEBERG replied the amendment was intended for AS
11.41.320 and 11.41.330.
MS. LUCKY noted that AS 11.41.330 would have already been taken out
of the bill with the misdemeanor change. The only substantive
custodial interference change would be in AS 11.41.320. The
sponsor would want to include the following felony offenses: AS
11.41.500, 11.41.510, 11.41.520 and 11.41.520.
Number 0943
REPRESENTATIVE ROKEBERG withdrew his amendment.
Number 0978
REPRESENTATIVE KERTTULA made a motion to consider Amendment 2 from
the attorney general's office.
REPRESENTATIVE ROKEBERG objected.
CHAIRMAN-DESIGNEE GREEN called on Anne Carpeneti from the
Department of Law to explain the amendment.
Number 1003
ANNE D. CARPENETI, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law, stated the
amendment would avoid costly litigation in the future. It defines
"conviction" to include a person convicted of a sex offense then
given a suspended imposition of sentence (SIS) for that conviction
for the purposes of sex offender registration. In 1994, when the
legislature adopted the sex offender registration Law, it went back
to 1980 to gather those who were convicted of a sex offense and
required them to register for 15 years after their depravation of
parole was finished. The Department of Public Safety defined
conviction in regulation to include those convicted of a sex
offense and given an SIS, but in 1988 the legislature changed the
law to forbid a court from giving an SIS to a person convicted of
a sex offense. Looking back at the sentences imposed in the late
1970's and 1980's the courts gave SIS's to those convicted of a
first-degree sexual assault, first-degree sexual abuse of a minor,
and less serious offenses. An SIS was originally designed and
practically imposed on people who have been convicted of less
serious offenses, but the legislature found that sex offenders have
a higher rate of recidivism. The amendment is being offered
because two people have convinced the courts that they shouldn't
have to register and two other judges have found that they should
have to register under similar circumstances. It would be helpful
to set it straight.
Number 1204
CHAIRMAN-DESIGNEE GREEN asked Ms. Carpeneti whether the amendment
would prevent the problem in the future or is it retroactive.
MS. CARPENETI replied it would define conviction to exclude SIS
for all those who were given SIS's in the past. It is not really
necessary for the future because the law prohibits the use of SIS's
now.
Number 1225
REPRESENTATIVE CROFT stated they should have to register. He is
uncomfortable with avoiding litigation, however.
Number 1236
REPRESENTATIVE ROKEBERG asked Ms. Carpeneti whether it includes all
levels of sex offenders, and what is the time period for the SIS's.
MS. CARPENETI replied the sex offender registration law applied to
people who were convicted or still under legal obligations prior to
and after 1984. If a person was free of any legal obligation and
condition before 1984, that person did not have to register.
Number 1282
REPRESENTATIVE ROKEBERG wondered whether there is a distinction
between class A, B or C felonies. These people are being swept up
in one big net. He asked Ms. Carpeneti whether it is correct that
an SIS is not on a record after a certain period of time, if there
is no wrong doing.
MS. CARPENETI replied correct.
REPRESENTATIVE ROKEBERG asked Ms. Carpeneti whether a person who
has already reached that person's agreed upon SIS terms would be
stuck on the sex offender registry after the fact.
MS. CARPENETI replied that person should have already been
registered. There isn't a distinction between the different
felonies and how many people were given SIS's during that period of
time. There were at least 200 people given SIS's between 1984 and
1988. Some of whom were convicted of two sex offenses and given
SIS's. One of whom was convicted of three sex offenses and given
an SIS for all three. Some of them were first-degree sexual abuses
of a minor and second-degree sexual assaults.
Number 1360
REPRESENTATIVE ROKEBERG asked Ms. Carpeneti whether or not at that
time there were certain terms and conditions put on an SIS, and if
they were not met that person would go back to jail.
MS. CARPENETI replied yes. Usually, a judge imposes conditions of
jail time, for example.
REPRESENTATIVE ROKEBERG asked Ms. Carpeneti whether there would be
an instance where the full force of a conviction would have been
met and agreed to by both the state and individual that would get
trapped in this net.
MS. CARPENETI reiterated that they should have been registered this
whole time, according to the law as the Department of Law
interprets it.
REPRESENTATIVE ROKEBERG asked Ms. Carpeneti, isn't that the point
of the amendment? Is there a split in the cases?
MS. CARPENETI replied two people have convinced the courts that
they should not have to register.
REPRESENTATIVE ROKEBERG asked Ms. Carpeneti, because they paid
their debt to society?
MS. CARPENETI replied there were a variety of reasons.
REPRESENTATIVE ROKEBERG stated he is concerned about an inequity.
He said, "It seems to me that it's who they're going to throw this
net out and capture--get if they've already in essence have
completed their debt to society and all of a sudden because of the
retrospective aspect of the law, they're being asked to do
something and then they've already completed their routine in which
their actual offense is lifted off the record, if that's if--if I'm
not mistaken."
Number 1475
CHAIRMAN-DESIGNEE GREEN stated the intent is to get those people
anyway. They slipped through because of a couple of liberal
judges.
Number 1487
REPRESENTATIVE JAMES stated she wants to get everybody on this list
who ought to be on it. But, she finds it difficult to make
legislation to change court cases. She asked Ms. Carpeneti whether
anything will happen to those four cases.
MS. CARPENETI replied they are on appeal.
REPRESENTATIVE JAMES asked Ms. Carpeneti, if the law is changed
with this amendment, will it affect their appeal.
MS. CARPENETI replied, "I hope so." She hopes that the court will
be instructed to see the clarification in the law to require people
who were convicted in the 1980's and who were given an SIS to be
registered.
REPRESENTATIVE JAMES asked Ms. Carpeneti to explain how the
amendment is a clarification as opposed to a change in the law.
MS. CARPENETI replied when the sex offender registration law was
passed in 1994, the legislature gave the Department of Public
Safety the authority to adopt regulations to implement it. As part
of the regulations, the definition of conviction included every
finding of guilt that was not turned over by a court including
pleas, and findings of guilt by a court or jury. This amendment
takes that definition and puts it in statute. It also includes an
intent section to clarify the confusion evident by the judges that
made those decisions.
Number 1608
REPRESENTATIVE KERTTULA noted that the person is still convicted.
For every change of plea that she has done, the person understood
that he/she was convicted, that they had an opportunity under the
SIS to go back, but the conviction still stood.
CHAIRMAN-DESIGNEE GREEN stated that person wouldn't be registered.
REPRESENTATIVE KERTTULA replied at this point the courts are split.
The amendment is to clarify the conviction.
Number 1656
REPRESENTATIVE CROFT stated AS 12.63.020 says if it's not an
aggravated sex offense, it is only 15 years from the date of
conviction. If it's an aggravated sex offense, it is a lifetime
obligation, and in that case that person is caught in the net. If
a person is clean for 15 years, then that person can drop of the
list.
MS. CARPENETI stated, if a person does not check in with the
Department of Public Safety or a police department every year to
update information in the registry, then that person doesn't get
credit for that year.
REPRESENTATIVE CROFT stated if a court has determined that they
don't have to, then they wouldn't be charged for...
MS. CARPENETI said correct.
Number 1740
REPRESENTATIVE ROKEBERG asked Ms. Carpeneti what constitutes an
SIS. Would a conviction be removed from the books upon completion
of the conditions?
MS. CARPENETI replied when a SIS is imposed a person has to fulfill
the obligations that a court has imposed, but a conviction really
isn't removed from every single aspect. "12.55.085 specifically
provides that you cannot get an SIS if you have a prior conviction
and it also provides that convictions in terms of that section of
whether--so whether or not you have a prior conviction includes
conviction where you were given an SIS. So, if you're convicted of
a theft as a young person and were given an SIS and provided--did
everything you were suppose to do and got your conviction off the
record, and ten years later if you committed another theft, under
the law of SIS's the court could go back--has to go back and look
at that. And, you can't get another one because conviction for
purposes of law of SIS does not include an SIS provision."
Number 1851
REPRESENTATIVE ROKEBERG noted that Megan's Law has withstood
constitutional tests at the U.S. Supreme Court level, but many
states have a two tier system where the severity of a sex offense
is balance with the crime and the length time on a registry.
Alaska doesn't have that. Therefore, a sex offender convicted of
assault in the fourth degree is in the same boat of a sex offender
that committed assault in the first degree. He takes exception to
that as a matter of public policy. He asked Ms. Carpeneti whether
there would be a distinction in terms of severity when that net is
thrown back out. He also asked Mr. Carpeneti whether the net would
be thrown back over offenders who have completed their conditions.
In addition, a person in that case would have to say that he/she
has never been convicted, but that he/she is on a sex offender
registry when completing a job application, for example. It is a
weird set of circumstances.
Number 1920
MS. CARPENETI replied Alaska does have a two tier sex offender
registration program. People convicted of an aggravated sexual
assault and kidnapping are required to register for life, even if
it a first offense. People convicted of sexual abuse of a minor in
the first degree, and people convicted twice of any sexual offense
also have to register for life. People convicted of other sexual
offenses have to register for 15 years. In addition, she has never
believed that a person can answer truthfully about a conviction on
a job application, even if through an SIS that conviction has been
set aside.
Number 1990
REPRESENTATIVE ROKEBERG asked whether the sponsor has any objection
to this amendment since it piggybacks SB 62.
MS. LUCKY replied the sponsor does not have an objection to the
amendment.
Number 2038
REPRESENTATIVE ROKEBERG withdrew his objection.
CHAIRMAN-DESIGNEE GREEN asked whether there is further objection.
There being none, Amendment 2 was so adopted.
Number 2062
REPRESENTATIVE ROKEBERG made a motion to move the proposed House
committee substitute for CSSB 3, as amended, from the committee
with individual recommendations and the attached fiscal note(s).
There being no objection, HCS CSSB 3(JUD) was so moved from the
House Judiciary Standing Committee.
ADJOURNMENT
Number 2181
CHAIRMAN-DESIGNEE GREEN adjourned the House Judiciary Standing
Committee meeting at 3:37 p.m.
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