Legislature(1999 - 2000)
05/11/1999 01:17 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
May 11, 1999
1:17 p.m.
MEMBERS PRESENT
Representative Pete Kott, Chairman
Representative Joe Green
Representative Norman Rokeberg
Representative Jeannette James
Representative Lisa Murkowski
Representative Eric Croft
Representative Beth Kerttula
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
CS FOR SENATE BILL NO. 45(FIN) am
"An Act providing that a person who grants certain conservation
easements to the state or a municipality that provide public access
for recreational purposes and the grantee of the easement are
immune from tort liability, other than gross negligence or reckless
or intentional misconduct, for damages to a person who uses the
easement under certain conditions; relating to the vacation by the
state or a municipality of rights-of-way acquired by the state
under former 43 U.S.C. 932; and providing for an effective date."
- MOVED CSSB 45(FIN) am OUT OF COMMITTEE
HOUSE JOINT RESOLUTION NO. 23
Proposing amendments to the Constitution of the State of Alaska
relating to the community development fund, the permanent fund, and
the budget reserve fund.
- MOVED CSHJR 23(CRA) OUT OF COMMITTEE
HOUSE BILL NO. 213
"An Act relating to the medical use of marijuana; and providing for
an effective date."
- HEARD AND HELD
(* First public hearing)
PREVIOUS ACTION
BILL: SB 45
SHORT TITLE: LAND OWNER IMMUNITY/ RT-OF-WAY VACATION
SPONSOR(S): SENATOR(S) HALFORD, Pearce, Taylor; REPRESENTATIVE(S)
Dyson
Jrn-Date Jrn-Page Action
1/25/99 80 (S) READ THE FIRST TIME - REFERRAL(S)
1/25/99 80 (S) JUD, FIN
4/14/99 (S) JUD AT 1:30 PM BELTZ 211
4/14/99 (S) MOVED CS (JUD) OUT OF COMMITTEE
4/19/99 (S) JUD AT 1:30 PM BELTZ 211
4/19/99 (S) MINUTE(JUD)
4/21/99 982 (S) JUD RPT CS 2DP 1NR NEW TITLE
4/21/99 982 (S) DP: TAYLOR, HALFORD; NR: DONLEY
4/21/99 982 (S) ZERO FISCAL NOTES (DOT, DNR)
4/28/99 (S) FIN AT 9:00 AM SENATE FINANCE 532
4/28/99 (S) REPORTED CS (FIN) OUT OF COMMITTEE
4/28/99 1148 (S) FIN RPT FORTHCOMING CS 2DP 5NR 1AM
4/29/99 (S) RLS AT 11:50 AM FAHRENKAMP 203
4/29/99 (S) MINUTE(RLS)
4/29/99 1168 (S) FIN CS RECEIVED NEW TITLE
4/28/99 1148 (S) DP: TORGERSON, PETE KELLY; NR:
PARNELL,
4/28/99 1148 (S) PHILLIPS,ADAMS, DONLEY, WILKEN;
AM:GREEN
4/28/99 1149 (S) PREVIOUS ZERO FNS (DNR, DOT)
5/03/99 1203 (S) RULES TO CALENDAR AND 1 OR 5/3/99
5/03/99 1206 (S) READ THE SECOND TIME
5/03/99 1206 (S) FIN CS ADOPTED UNAN CONSENT
5/03/99 1206 (S) AM NO 1 OFFERED BY HALFORD
5/03/99 1206 (S) AM NO 1 ADOPTED UNAN CONSENT
5/03/99 1207 (S) ADVANCED TO THIRD READING
UNAN CONSENT
5/03/99 1207 (S) READ THE THIRD TIME CSSB 45(FIN) AM
5/03/99 1207 (S) PASSED Y20 N-
5/03/99 1208 (S) EFFECTIVE DATE(S) SAME AS PASSAGE
5/03/99 1207 (S) COSPONSOR(S): PEARCE, TAYLOR
5/03/99 1209 (S) TRANSMITTED TO (H)
5/04/99 1152 (H) READ THE FIRST TIME - REFERRAL(S)
5/04/99 1152 (H) JUDICIARY
5/04/99 1170 (H) CROSS SPONSOR(S): DYSON
5/11/99 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HJR 23
SHORT TITLE: COMMUNITY DEVELOP FUND/PFD/BUD RESERVE
SPONSOR(S): REPRESENTATIVES(S) DAVIS
Jrn-Date Jrn-Page Action
3/05/99 366 (H) READ THE FIRST TIME - REFERRAL(S)
3/05/99 366 (H) CRA, JUDICIARY, FINANCE
4/08/99 (H) CRA AT 8:00 AM CAPITOL 124
4/08/99 (H) HEARD AND HELD
4/08/99 (H) MINUTE(CRA)
5/04/99 (H) CRA AT 8:00 AM CAPITOL 124
5/04/99 (H) MOVED CSHJR 23(CRA) OUT OF COMMITTEE
5/04/99 1153 (H) CRA RPT CS(CRA) 2DP 3NR
5/04/99 1153 (H) DP: MORGAN, MURKOWSKI; NR: DYSON,
5/04/99 1153 (H) HARRIS, HALCRO
5/04/99 1153 (H) FISCAL NOTE (GOV)
5/04/99 1153 (H) ZERO FISCAL NOTE (DCRA)
5/04/99 1153 (H) REFERRED TO JUDICIARY
5/11/99 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 213
SHORT TITLE: MEDICAL USE OF MARIJUANA
SPONSOR(S): HEALTH, EDUCATION & SOCIAL SERVICES
Jrn-Date Jrn-Page Action
4/27/99 1026 (H) READ THE FIRST TIME - REFERRAL(S)
4/27/99 1027 (H) HES, JUD
5/03/99 (H) HES AT 5:00 PM CAPITOL 106
5/03/99 (H) HEARD AND HELD
5/04/99 (H) HES AT 3:00 PM CAPITOL 106
5/04/99 (H) MOVED CSHB 213(HES) OUT OF COMMITTEE
5/05/99 1177 (H) HES RPT CS(HES) 3NR 2AM
5/05/99 1177 (H) NR: DYSON, WHITAKER, BRICE;
AM: COGHILL,
5/05/99 1177 (H) KEMPLEN
5/05/99 1177 (H) FISCAL NOTE (DHSS)
5/05/99 1177 (H) ZERO FISCAL NOTE (DCED)
5/05/99 1177 (H) REFERRED TO JUDICIARY
5/11/99 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
BRETT HUBER, Legislative Assistant
to Senator Rick Halford
Alaska State Legislature
Capitol Building, Room 121
Juneau, Alaska 99801
Telephone: (907) 465-4958
POSITION STATEMENT: Presented CSSB 45(FIN) am on behalf of
sponsor.
DICK BISHOP
Alaska Outdoor Council
P.O. Box 73902
Fairbanks, Alaska 99707
Telephone: (907) 455-4262
POSITION STATEMENT: Urged passage of CSSB 45(FIN) am, although
prefers original SB 45.
TIM KRUG, Planner
City of Wasilla
290 East Herning Avenue
Wasilla, Alaska 99654
Telephone: (907) 373-9052
POSITION STATEMENT: Testified in support of SB 45.
REPRESENTATIVE DAVIS
Alaska State Legislature
Capitol Building, Room 513
Juneau, Alaska 99801
Telephone: (907) 465-2693
POSITION STATEMENT: Testified as sponsor of HJR 23.
DEB DAVIDSON, Legislative Administrative Assistant
to Representative Davis
Alaska State Legislature
Capitol Building, Room 513
Juneau, Alaska 99801
Telephone: (907) 465-2693
POSITION STATEMENT: Answered questions regarding HJR 23.
KEVIN RITCHIE, Alaska Municipal League
Alaska Conference of Mayors
217 2nd Street
Juneau, Alaska 99801
Telephone: (907) 586-1325
POSITION STATEMENT: Indicated support of HJR 23.
REPRESENTATIVE DYSON
Alaska State Legislature
Capitol Building, Room 104
Juneau, Alaska 99801
Telephone: (907) 465-2199
POSITION STATEMENT: Testified as sponsor of HB 213.
MIKE PAULEY, Legislative Assistant
to Senator Leman
Alaska State Legislature
Capitol Building, Room 115
Juneau, Alaska 99801
Telephone: (907) 465-2095
POSITION STATEMENT: Discussed HB 213 and answered questions.
DEL SMITH, Deputy Commissioner
Office of the Commissioner
Department of Public Safety
P.O. Box 11200
Juneau, Alaska 99811
Telephone: (907) 465-4322
POSITION STATEMENT: Testified in support of HB 213.
DEAN GUANELI, Chief Assistant Attorney General
Legal Services Section - Juneau
Criminal Division
Department of Law
P.O. Box 110300
Juneau, Alaska 99811
Telephone: (907) 465-3428
POSITION STATEMENT: Testified in support of HB 213.
BILL KOZLOWSKI
713 Fifth Street
Juneau, Alaska 99801
Telephone: (907) 586-1806
POSITION STATEMENT: Testified against the mandatory registration
in HB 213.
ELMER LINDSTROM, Special Assistant
Office of the Commissioner
Department of Health and Social Services
P.O. Box 110601
Juneau, Alaska 99811
Telephone: (907) 465-1613
POSITION STATEMENT: Testified on HB 213.
AL ZANGRI, Chief
Vital Statistics
Division of Public Health
Department of Health and Social Services
P.O. Box 110675
Juneau, Alaska 99811
Telephone: (907) 465-3392
POSITION STATEMENT: Answered questions on HB 213.
DAVID FINKELSTEIN
Alaskans for Medical Marijuana
P.O. Box 102320
Anchorage, Alaska 99510
Telephone: (907) 277-2567
POSITION STATEMENT: Testified against HB 213.
ACTION NARRATIVE
TAPE 99-63, SIDE A
Number 0001
CHAIRMAN PETE KOTT called the House Judiciary Standing Committee
meeting to order at 1:17 p.m. Members present at the call to order
were Representatives Kott, Green, Rokeberg, Croft and Kerttula.
Representatives Murkowski and James arrived at 1:22 p.m. and 1:23
p.m., respectively.
CSSB 45(FIN) am - LAND OWNER IMMUNITY/ RT-OF-WAY VACATION
CHAIRMAN KOTT announced that the first item of business is CS for
Senate Bill No. 45(FIN) am, "An Act providing that a person who
grants certain conservation easements to the state or a
municipality that provide public access for recreational purposes
and the grantee of the easement are immune from tort liability,
other than gross negligence or reckless or intentional misconduct,
for damages to a person who uses the easement under certain
conditions; relating to the vacation by the state or a municipality
of rights-of-way acquired by the state under former 43 U.S.C. 932;
and providing for an effective date."
Number 0088
BRETT HUBER, Legislative Assistant to Senator Rick Halford, Alaska
State Legislature, came forward on behalf of the prime sponsor. He
read in part from the sponsor statement, noting that SB 45 was
introduced in response to a desire to preserve and expand
recreational access for both Alaskans and visitors to the state, to
whom the ability to access lands for purposes of skiing, hunting,
fishing, snow machining and numerous other outdoor activities is
very important. He said the potential for liability and litigation
for private land owners who allow public access to their lands for
recreational purposes has created pressure to further restrict
entry. It is also proven to be a disincentive to the establishment
of new recreational opportunities, and it is a significant hurdle
to the establishment of new trail systems.
MR. HUBER told members that promoting recreational opportunities,
by establishing additional trail systems, has become a priority for
a number of groups and organizations around the state. The sponsor
has received requests and/or support for this legislation from
numerous entities, including the following: the Department of
Natural Resources (DNR), Division of Parks and Outdoor Recreation
("State Parks"); the Municipality of Anchorage; the Anchorage
Economic Development Corporation; the City of Wasilla; the Wasilla,
Palmer, Chugiak, Eagle River, Fairbanks and state Chambers of
Commerce; numerous snow machine associations; the Alaska [Boaters']
Association; and the Alaska Outdoor Council. Mr. Huber expressed
belief that representatives of many of these organizations had
either provided written testimony or would provide it that day.
MR. HUBER specified that CSSB 45(FIN) am provides limited immunity
to landowners when they grant the conservation easement to the
state or municipality, which allows public access to the easement
for recreational purposes, providing that there was no compensation
paid for the access or use. The same limited immunity is granted
to the state or municipality that accepts the conservation
easement. In addition, the bill makes a technical correction to
the statutes governing vacation of RS 2477 [federal Revised Statute
2477] and section line rights-of-way and easements that were
granted under former 43 U.S.C. 932. The bill also provides concise
direction in Title 29, the statutes pertaining to local
governments, that is reflective of the current procedures for
easement vacation existing in Title 19.
Number 0275
REPRESENTATIVE CROFT commented that it seems to be appropriate,
particularly for free rights-of-way. However, he expressed concern
about specific improved sections. If an owner allowed access to a
tramway or railroad line, for example, should there be a different
standard?
MR. HUBER replied that although AS 09.65.200 currently deals with
limited immunity on unimproved land, it doesn't take in improved
land. In many municipal areas - on the Kenai Peninsula, as well as
in and around Anchorage, the Matanuska-Susitna area and Fairbanks
- towns have grown up around trails that once existed on unimproved
land. Although a trail and its use may not have changed, the
classification of the land as "improved" or "unimproved" may have
changed.
MR. HUBER said he believes a significant difference, if talking
about something like the use of a tramway, a railroad, or a ski
area, is whether the owner is compensated for use of the easement
or it is free. He indicated that in working with the Senate
Judiciary Committee, the sponsor tried to limit it to a
conservation easement, "to try to balance the limited immunity
granted versus the concerns you have with improved property, with
taking in more than what the trail or the original intent of the
trail was."
Number 0441
REPRESENTATIVE GREEN posed a hypothetical situation where an
easement suffers from erosion, and someone using it damages a car,
or young people who are unaware of danger get hurt there. He asked
whether the easement under this bill would provide any immunity
that wouldn't exist on another part of a person's land.
MR. HUBER answered that the limited immunity granted by the
provisions of this bill would extend to the conservation easement
and its use for public access for recreational purposes. If
erosion or something that doesn't constitute gross negligence has
occurred on the trail, and someone has an accident or is injured,
that limited immunity would extend to both the landowner and to the
holder of the conservation easement. Certainly, he added, if it
was gross negligence or an act of omission, then the limited
immunity wouldn't apply. Furthermore, it is questionable whether
that would be seen any differently on land that wasn't subject to
this conservation easement. Mr. Huber stated:
If you're recreating on private property, not on an easement,
and you don't have permission to be on that property, then I
think you'd have a hard time trying to bring a cause, because
it's basically trespass on the property. If you're recreating
on that property currently, ... for a trail that exists now
that we're trying to protect, and you had some type of act,
again, it would at least require simple negligence for there
to be some kind of cause and for you not to have immunity. If
it was a situation like erosion, I believe ... it would be
tough to try to lay that fault on a landowner.
Number 0626
REPRESENTATIVE GREEN stated his understanding, from Mr. Huber's
response, that this bill wouldn't provide any immunity that isn't
reasonably afforded anyway. Rather, it just keeps someone from
being a target for litigation.
MR. HUBER said that is one of the concerns. The question isn't
necessarily whether this gives more protection in the courts, but
whether it perhaps keeps a landowner out of the courts on a suit
that may not prevail anyway.
Number 0662
REPRESENTATIVE KERTTULA requested clarification about the
exceptions in Section 4. For example, a person coming onto the
easement would have no responsibility to pay the owner and would
use it for recreational purposes. She asked, "Then you'd have to
pay the damages if you were grossly negligent, reckless, or had
done something that constituted intentional misconduct; am I
reading it right?"
MR. HUBER said that is correct.
Number 0705
REPRESENTATIVE JAMES requested a definition of "conservation
easement."
MR. HUBER replied that "conservation easement" exists in Chapter 17
of Title 34. It is basically a nonpossessory interest in land,
akin to a license to use land without possession of the actual land
transferring.
REPRESENTATIVE JAMES asked who would have a conservation easement,
and how it would get put on property.
MR. HUBER answered that envisioned under this bill, and what State
Parks is working on currently, is a conservation easement system
wherein State Parks talks to a landowner who perhaps has a piece of
land that they are interested in continuing to use as a trail, or
perhaps an owner has a piece of land upon which State Parks or a
municipality would like to begin establishing a trail. It would
then come to the landowner, or the landowner could come to the
state or municipality; those are the only entities that can receive
a conservation easement, and that are entitled to this immunity.
Mr. Huber explained that after going through the process of a
negotiated easement, it would be recorded and become attached to
the property. Conservation easements can be negotiated both for a
time specific and for uses inside of what is allowed under AS
34.17.
REPRESENTATIVE JAMES responded, "Thank you. I knew I didn't like
them."
Number 0813
CHAIRMAN KOTT requested an example of what Mr. Huber believes would
be gross negligence, as it relates to this.
MR. HUBER answered:
I'll try. I would say that if somebody's granted a
conservation easement, they know that there's a conservation
easement for public access, a trail exists. And perhaps they
go out and do some backhoe work, have something underground,
something that they want to move, have a problem with the
septic tank, and then dig a trench in the ground that crosses
into that conservation easement, fail to mark that trench,
fail to notice that there's a trench in the ground. Somebody
comes along, expecting to use the trail as it's available for
use, and falls in this hole that's been created.
Mr. Chairman, also, if somebody would know there's a
conservation easement and trail access across their land,
string a wire or a cable to deny that access, I think those
would constitute ... gross negligence. Those are a couple of
examples.
Number 0880
REPRESENTATIVE CROFT asked whether AS 09.65.200 doesn't do the same
thing. He paraphrased a portion of it, which states:
(a) An owner of unimproved land is not liable in tort, except
for an act or omission that constitutes gross negligence or
reckless or intentional misconduct, for damages for the injury
to or death of a person who enters onto or remains on the
unimproved portion of land if (1) the injury or death resulted
from a natural condition of the unimproved portion of the land
or the person entered onto the land for recreation; and (2)
the person had no responsibility to compensate the owner for
the person's use or occupancy of the land.
MR. HUBER replied:
What you're getting at is land that doesn't meet the supreme
court three-part test for unimproved land. Say there's land,
that there's a five-acre parcel, the conservation easement or
trail in question, looking at just the provisions of 09.600,
across a portion of the land. Another portion of the land has
been improved. It's possible, then, that all the land would
be considered "improved" and then would fall outside of the
limited immunity granted for unimproved land.
Number 0931
REPRESENTATIVE CROFT expressed his understanding that the goal is
to ensure that the proximity of improvements doesn't affect this.
He asked, "Do we still mean the natural condition ...? If I'm
actually traveling on the improved portion, not this three-part
test but the actual improved portion, is there any problem with
making that the normal rules?"
MR. HUBER requested clarification.
REPRESENTATIVE CROFT said he would think about it and try to
rephrase it better later.
REPRESENTATIVE KOTT asked whether anyone in Juneau wanted to
testify; there was no response. He then called upon Dick Bishop.
Number 0993
DICK BISHOP, Alaska Outdoor Council, testified via teleconference
from Fairbanks in support of SB 45 and the current version, CSSB
45(FIN) am. He reminded members that his organization has worked
hard on advocating public access in general, and RS 2477
rights-of-way in particular. He expressed appreciation for
public-spirited landowners who allow others to cross or use their
lands; he believes they should be protected from possibly frivolous
lawsuits. Mr. Bishop informed members that the Alaska Outdoor
Council prefers the original language in SB 45 because it is
broader in terms of tort immunity. However, they do support and
urge passage of this version, which they believe to be a start in
the right direction.
Number 1075
TIM KRUG, Planner, City of Wasilla, testified via teleconference
from the Matanuska-Susitna Legislative Information Office, stating
support for SB 45 on behalf of the city for the following reasons.
The City of Wasilla is the fastest-growing city in Alaska, and
trails across private property are rapidly diminishing with ongoing
development. Although the city's trails plan was adopted as part
of its comprehensive plan, several identified trails travel over
private property; without new legislation, the future of such
trails may be in jeopardy. They need a law to protect private
landowners who allow trails to cross their property, and this will
encourage other landowners to do so. Bills like SB 45 are needed
to allow the local city council to determine if it is appropriate
for the DNR, the Department of Transportation and Public
Facilities, or another state agency to vacate a local right-of-way.
Furthermore, the people need to have input towards the vacation of
rights-of-way that could affect future trails.
Number 1143
CHAIRMAN KOTT asked whether anyone else on teleconference wished to
testify; he then closed public testimony.
REPRESENTATIVE ROKEBERG expressed surprise that nobody was present
from the Administration, as there had been a bill introduced by the
Governor on the same topic. He stated his assumption that the
Administration supports this.
CHAIRMAN KOTT said he believed there had been testimony earlier
that indicated the department supports it. He noted that someone
from the Administration was present, in case there was a specific
question. He asked whether there was further discussion.
Number 1198
REPRESENTATIVE ROKEBERG made a motion to move CSSB 45(FIN) am from
the committee with individual recommendations and any attached
fiscal notes. There being no objection, CSSB 45(FIN) am was moved
from the House Judiciary Standing Committee.
HJR 23 - COMMUNITY DEVELOP FUND/PFD/BUD RESERVE
CHAIRMAN KOTT announced the next order of business is HOUSE JOINT
RESOLUTION NO. 23, Proposing amendments to the Constitution of the
State of Alaska relating to the community development fund, the
permanent fund, and the budget reserve fund.
Number 1259
REPRESENTATIVE DAVIS, sponsor, Alaska State Legislature, noted that
there was testimony on this legislation last year when it was
called the community dividend fund which has since been changed to
the community development fund. He explained that this is an
endowment for municipal assistance and revenue sharing. The
earnings from this endowment would be distributed to legal
municipalities. This plan calls for $750 million from the
constitutional budget reserve (CBR) to be placed in the community
development fund where it will draw interest. The earnings from
that will be distributed to the municipalities. Additionally,
Representative Davis informed the committee that he was pondering
trying to generate additional revenues to the corpus of the
endowment. Therefore, HJR 23 still includes receipt of two percent
of the dividend earnings for 20 years.
REPRESENTATIVE DAVIS acknowledged that the resolution is left vague
and noncommittal as to who would administer the fund and the
details of the distribution of the fund. Furthermore, the
resolution is left completely open with regard to how
municipalities would spend the funds received from the endowment.
He indicated that there would be the desire to roll a portion of
the fund back into the fund in order for the fund to grow.
Representative Davis hoped this fund and its distribution would
grow. He envisioned municipalities taking over responsibilities
that the state currently provides such as road maintenance,
education projects, community schools, et cetera. Representative
Davis recognized that this plan may have come at an inopportune
time as there is another plan such as the Healthy Alaska Plan.
However, this endowment may be an opportunity in view of the funds
the House eliminated to municipal assistance and revenue sharing.
He noted that Representative Moses has a similar proposal.
CHAIRMAN KOTT expressed his understanding that those areas not
included in the resolution would be done statutorially.
REPRESENTATIVE DAVIS said that he prefers to keep things simple
when going before the voters. In further response to Chairman
Kott, Representative Davis explained that if this passes it would
be before the voters at the next general election. If it passes,
the money would be transferred to the fund and given a year to
generate revenue with the first distribution being in fiscal year
2002. He pointed out that Table 1 in the committee packet
illustrates the results with and without inflation proofing.
Therefore, the first distribution in 2002 without inflation would
result in $117 million which is large because the distributions
would actually be from two years of earned income. If there is
inflation proofing at three percent, the first distribution would
be $69 million.
CHAIRMAN KOTT asked if Representative Davis envisioned this fund
replacing the current appropriation for municipal assistance and
revenue sharing.
REPRESENTATIVE DAVIS replied yes.
REPRESENTATIVE MURKOWSKI asked if Representative Davis intended for
the schools in the community to be funded through this endowment or
was he referring to the community school concept.
REPRESENTATIVE DAVIS clarified that he was referring to the
community school program.
REPRESENTATIVE GREEN asked if the estimated growth of this
endowment would be comparable to the permanent fund dividend.
Number 1792
DEB DAVIDSON, Legislative Administrative Assistant to
Representative Davis, Alaska State Legislature, said that the
tables before the committee were provided with data from the
permanent fund and the same inflation rate was utilized as is for
the permanent fund.
REPRESENTATIVE GREEN asked if this is a way around a dedicated fund
to support municipalities.
REPRESENTATIVE DAVIS clarified that this is a dedicated fund.
MS. DAVIDSON explained, in response to Representative Croft, that
because the total earnings may be a little higher than the
percentage on the permanent fund, the language says that the fund
will be invested to yield competitive market rates. The Department
of Revenue calculated the earnings based on how the CBR is invested
because it has more latitude than with the permanent fund. The
inflation rate utilized for the permanent fund and the CBR was
utilized, while the investment scenarios and portfolios of the CBR
were utilized for the community development fund. Therefore, the
estimate of total earnings is a little higher due to the different
investment policies. In further response to Representative Croft,
Ms. Davidson believed that the rate was around eight percent.
According to the original table, the realized return to the
community development fund was considered at 7.3 percent. She
clarified that the $58 million earnings is the 7.3 percent without
inflation proofing. The total return would remain the same at $5
million, from which $23 million for inflation proofing would be
subtracted.
REPRESENTATIVE CROFT asked if the total earnings is the combination
of the 2 percent from the permanent fund and the interest that is
taken off of it.
MS. DAVIDSON clarified that the total earnings is what is earned on
the balance of the principal. However, the table reads, for say
fiscal year 2001, $750 million plus the $37 million - 2 percent -
plus the earnings on that total becomes the principal. There is no
distribution the first year.
Number 2069
KEVIN RITCHIE, Alaska Municipal League (AML), Alaska Conference of
Mayors, said that this is an exciting concept. Municipal
assistance and revenue sharing have been a difficulty in the state
budget for years. Furthermore, those budget areas have decreased
each year which has created substantial discord between the state
and the municipalities. This concept would not only create
stability in local government, but also a vehicle to accomplish
efficiencies in state government. He posed the example of road
maintenance. In many areas there is a city and a state road shop.
Although the city may be more efficient, the city cannot take over
road maintenance because the tax money for such is not available
and there is not a vehicle at the state level for such. If the
state wanted to transfer state maintenance to municipalities, it
would be possible to add an additional endowment to the fund and
transfer those with a continuing source of revenue. Such would
result in a more efficient system as well as a stable source of
revenue to pay for the system over time. Mr. Ritchie felt this
concept has arrived at a most appropriate time.
REPRESENTATIVE JAMES commented that she was sure the municipalities
would like this. She inquired as to how many other groups would
prefer an endowment so as to avoid going to the legislature for
funding.
MR. RITCHIE said that there is a unique relationship between the
state and municipalities. In essence, municipalities are state
government. He likened municipalities to a local franchise of the
state government.
Number 2236
REPRESENTATIVE JAMES asked if there has been thought of payment in
lieu of taxes. Representative James stated that she is generally
opposed to endowments because there is not necessarily a
relationship between the amount of funds received and the amount of
funds needed. It seems more responsible to have a need to be
funded. Currently, there is no opportunity for a municipality to
provide any evidence of need. Representative James emphasized that
the state should recognize its obligation to assist in some
relationship with the municipalities. With this legislation, that
is lost.
MR. RITCHIE commented that the concept of payment in lieu of taxes
is great. He pointed out that some communities include much state
property while others do not and therefore, need is not necessarily
mirrored. Mr. Ritchie believed that under this plan, the state
would define how much money is distributed and could define what
the money is distributed for which would provide some control.
REPRESENTATIVE JAMES clarified that she was concerned that the
money available would not be enough while the same need exists.
She reiterated that there should be a relationship between the
money distributed and the need which is lost with endowments.
CHAIRMAN KOTT noted that under this proposal the municipality would
receive more than is currently dispersed under the revenue sharing
and municipal assistance.
REPRESENTATIVE CROFT pointed out, "A lot of the ideas that are
being thrown around now are for endowing the entire, all the pots
we have, putting them together and then having everyone come up and
say now 'do we fund foster care or municipal assistance?' or and
keep that discretion. It certainly was a preference of the framers
of our constitution, that we not do a lot of these different pots.
Why wouldn't it be the preferable approach to endow everything and
then still have the discretion to dole whether it's too much or too
little in any one particular year."
MR. RITCHIE asked if Representative Croft meant leaving it as it is
now with revenue sharing to be an annual appropriation for a
revenue sharing program.
REPRESENTATIVE CROFT replied yes. He suggested endowing the entire
structure and still have people come to the legislature for their
share of the funds.
MR. RITCHIE pointed out that revenue sharing could get zeroed out
and there is not a mechanism in state government to study the
impacts of state government on municipal governments. There can be
significant impacts on municipal government that do not receive
study which he believed to be the case with the major cuts to
revenue sharing. Mr. Ritchie said he was unsure as to how to
improve that relationship. Municipalities consider the notion of
if the state were to take over a service. For example, the senior
citizen property tax exemption was initially created with the
promise of full reimbursement of the cost which happened for a few
years. Of course, things change.
TAPE 99-63, SIDE B
MR. RITCHIE commented that to be able to discuss with
municipalities the ability to transfer certain functions, having a
steady source of revenue makes sense. With regard to endowing
everything, Mr. Ritchie said that municipalities are "literally
half of what the state does." If all the municipal budgets were
added, it would amount to about $2.4 billion which is a tremendous
group of the services the state provides. According to the
Department of Community & Regional Affairs, 75-85 percent of the
services provided by municipalities fall into the essential
services category that was identified for the Healthy Alaska Plan;
those include public health and safety, education, and
transportation.
Number 0048
CHAIRMAN KOTT asked whether this proposition would be counter to
the policy of phasing out municipal assistance and revenue sharing,
if that is the legislature's direction.
MR. RITCHIE stated that the AML and the Alaska Conference of Mayors
disagrees with that policy. If the state eliminated all funding to
municipal governments, essential services would plummet. Mr.
Ritchie said, "In a sense, we feel that eliminating revenue sharing
on the one hand is saying that communities without the ability to
provide services go without and there is going to be a very large
property tax or sales tax increase in communities that can afford
to do that .... And that is probably a long-range fiscal plan
issue. If the state were to, as part of its plan, wanted to
increase statewide property taxes that is a legitimate thing to
discuss as a part of the plan, but we feel that is the kind of
impact that you have to look at."
REPRESENTATIVE MURKOWSKI returned to Representative James' comments
and she hoped that if such an endowment happens, the state could
specify which areas the municipality would have to take over.
Therefore, municipalities which receive more funds would take over
more services and there would be an evening out with respect to how
much funding a municipality receives in relation to what it must
take over.
Number 0180
MR. RITCHIE responded, in response to Representative James, that
there are 98 municipalities which have a sales tax.
REPRESENTATIVE JAMES pointed out that Anchorage and Fairbanks do
not have a sales tax. She indicated that those municipalities
continually cry that they cannot do anything due to the property
tax cap, but a sales tax could be implemented.
MR. RITCHIE said that he believed the property tax rate in
Anchorage is around 20 mills while in comparison, the property tax
in Juneau is 12 mills, but there is a 5 percent sales tax in
Juneau. Mr. Ritchie commented that it does sort of work out.
REPRESENTATIVE JAMES interjected that her point is that there are
still options.
REPRESENTATIVE GREEN understood that Mr. Ritchie believed that if
this fund were created, $750 million would be taken from the CBR
and the state would not have to deal with funding for municipal
revenue sharing. However, that is taking $750 million out of the
stream. He asked if there has been consideration given to which
communities would not receive this funding.
MR. RITCHIE mentioned that this year's funding for municipal
assistance and revenue sharing is about $48 million and capital
matching grants amount to $15 million which results in a little
more than the first year of funding under this proposal. Mr.
Ritchie use road service as an example. He believed that many
municipalities would be able to provide road maintenance service as
a single entity better than can be accomplished as a state and
local service structure. However, no municipality could currently
afford to take over state road maintenance and there is no
guarantee that the state would provide funding in the future for a
negotiated contract. In that sense, money would not be taken away
from anyone and there would be attempts to be more efficient thus,
saving money in a sense.
MR. RITCHIE responded further. For example, if the state is
spending $20 million on road service in a community. A city could
assume that responsibility and potentially do it for less because
operations are being combined. That extra money would not be lost.
The city would do more to compensate for receiving more funds.
Number 0386
REPRESENTATIVE GREEN commented that may not be in the state's best
interest.
REPRESENTATIVE KERTTULA suggested that it may make more sense to
place the funds into one large fund and earmark it there.
MS. DAVIDSON informed the committee that when Representative Davis
developed this legislation, he recognized that each community has
different needs and priorities. Part of the problem is that the
state allocates funds according to the different issues such as
transportation. Representative Davis believed there would be more
options for municipalities to have the ability to utilize the money
for the needs the municipality felt important. This would also
make it easier for constituents to go to the local government than
to the state. Furthermore, when municipalities come to the state
for funds, the state could review how the community development
funds were utilized when determining the funding for a particular
need.
There being no one else to testify on HJR 23, public testimony was
closed.
REPRESENTATIVE JAMES stated that she was willing to move HJR 23
from committee, although she is a no vote. Perhaps, HJR 23 needs
to be in House Finance which is its next committee of referral.
CHAIRMAN KOTT announced that it was his desire for HJR 23 to be
forwarded to House Finance in order to deal with the legislation in
the context of the long-range fiscal plan.
REPRESENTATIVE GREEN commented that HJR 23 probably "flies in the
face" of one of the big issues. He emphasized that he has many
reservations regarding HJR 23.
Number 0633
REPRESENTATIVE JAMES moved to report HJR 23 out of committee with
individual recommendations and the accompanying fiscal notes.
REPRESENTATIVE ROKEBERG objected. He explained that he has
supported this in the past, but it is not consistent with what is
attempted in the long-range fiscal plan. This sends a mixed
message to the public. Furthermore, the two percent is
over-reaching in terms of establishing an endowment.
Representative Rokeberg mentioned that if Chairman Kott wishes to
move HJR 23, he would help do so, but would have to sign the report
"Amend." Representative Rokeberg withdrew his objection.
There being no further objection, HJR 23 was reported from the
House Judiciary Standing Committee.
The committee stood at-ease from 2:21 p.m. to 2:25 p.m.
HB 213 - MEDICAL USE OF MARIJUANA
[Contains discussion relevant to SB 94.]
CHAIRMAN KOTT announced the next order of business is HOUSE BILL
NO. 213, "An Act relating to the medical use of marijuana; and
providing for an effective date."
REPRESENTATIVE DYSON, sponsor, Alaska State Legislature, informed
the committee that HB 213 is a companion bill to SB 94. He
explained that SB 94 is an attempt to make the medical marijuana
initiative Alaskans voted on workable. The amendments encompassed
in HB 213 mirror those done in the Senate. At the Administration's
request, the attempt is to meet the requirements of the Department
of Health & Social Services (DHSS) and the Department of Public
Safety. Representative Dyson predicted that public testimony will
probably say that this legislation is "messing with the will of the
people" which is not the intention of the House Health, Education
& Social Services Standing Committee.
Number 0855
MIKE PAULEY, Legislative Assistant for Senator Leman, Alaska State
Legislature, highlighted the three major changes encompassed in the
legislation. Firstly, registration would be required with DHSS in
order to have a permit which entitles an individual to utilize
marijuana for medical purposes. The initiative passed last fall
created a state registry, but did not require that an individual
register to have the right to use medical marijuana. The
initiative clearly states that even if an individual is not
registered, an individual can use marijuana for medical purposes.
This creates a problem from the view of law enforcement because
without a registration requirement, it would be difficult for
police to determine legal marijuana from illegal marijuana.
MR. PAULEY turned to the second change which deals with the
possession limits. The initiative set out a suggested limit of one
ounce of marijuana in usable form and six plants of which no more
than three can be mature and flowering. The initiative goes onto
say that an individual can possess more marijuana than the above
amount if medically justified. However, there is no criteria that
would establish what would be considered medically justified.
Therefore, HB 213 and SB 94 would establish a limit of one ounce of
marijuana in usable form and six plants. This would eliminate any
ambiguity, from the perspective of law enforcement, with regard to
what amount is legal or illegal.
MR. PAULEY highlighted the third change which deals with the role
of the primary caregiver. The initiative identifies a primary
caregiver as an individual who can assist with the procurement and
delivery of marijuana to a patient in need. The problem is that
there are not many restrictions regarding who the primary caregiver
can be, how many patients he/she can serve; there is room for
abuse. Therefore, HB 213 establishes that a patient can only have
one primary caregiver and a caregiver can have only one patient.
There are some narrowly defined exceptions. Furthermore, a primary
caregiver cannot be guilty of a felony violation of Alaska's drug
laws. A primary caregiver also cannot be an individual that is
currently on probation or parole. He explained that the intent is
to eliminate the possibility of criminals registering as primary
caregivers for the purpose of having a legal right to distribute
marijuana. Mr. Pauley noted that there are some technical changes
in HB 213, but the aforementioned areas are the core.
CHAIRMAN KOTT asked if a registered individual can walk around with
one ounce of marijuana on their person.
MR. PAULEY pointed out that there is a provision which specifies
that the marijuana is not to be used in a public place. The
legislation includes an exception allowing the individual to carry
one ounce of marijuana, in a closed container, on the person, and
not visible to others. This exception is only for the purpose of
transporting the marijuana to a place where it can be legally used.
In further response to Chairman Kott, Mr. Pauley believed that an
Elks Lodge would be considered a private place, but Mr. Guaneli
from the Department of Law may be better qualified to answer.
Number 1148
CHAIRMAN KOTT inquired as to how many joints one ounce of marijuana
would make.
MR. PAULEY said that a lot of marijuana can be produced from one
ounce of usable marijuana and six plants. He noted that Mr. Smith
from the Department of Public Safety could probably comment on
that.
REPRESENTATIVE DYSON stated that 20 to 50 joints can be produced
from one ounce of marijuana.
REPRESENTATIVE MURKOWSKI pointed out that the committee packets
include testimony from Ms. Adams, Alaskans for Drug-free Youth.
Ms. Adams testimony said that she attended a demonstration in which
one ounce of marijuana resulted in nearly 100 rolled joints.
Representative Murkowski informed the committee that she has seen
that demonstration and has been part of that demonstration.
Furthermore, depending upon the potency the effects can last all
day.
Number 1398
REPRESENTATIVE CROFT pointed out that the initiative said, "these
limits unless medically necessary for more." He inquired as to
where was that changed.
MR. PAULEY pointed out that the initiative established the
possession limits in Section 17.37.020 which is deleted by HB 213.
The possession limits are established in HB 213 on page 11.
REPRESENTATIVE CROFT stated that part of the crux of this
initiative was to treat marijuana as other drugs that have similar
effects such as relieving pain, creating euphoria, or stimulating
appetite. "It does not seem to me to be exceptional to have 20 to
50 pills of a prescription nature for a chronic, maybe even,
debilitating disease. It doesn't seem laughably out of whack.
Isn't that a major change? If a doctor would say to the police and
swear in court that this was medically necessary and we're just
saying no, we're putting an absolute limit."
REPRESENTATIVE DYSON clarified, in response to Representative
Murkowski, that it is 100 hits per ounce. Therefore, it is a
supply for many days.
REPRESENTATIVE CROFT asked, "Is there any such law in our books
that if a doctor prescribes 50 pills and it's medically necessary
and you have a prescription for it, that we're just going to say
that you can't do that?"
REPRESENTATIVE DYSON informed the committee that a major problem is
that the federal law makes it illegal for a doctor to prescribe
marijuana. This problem would be eliminated if the federal
government would change marijuana to another schedule to be treated
as any other prescription medicine. Such a change would allow
doctors to write prescriptions for marijuana, which is currently
illegal, and pharmacies could dispense marijuana. Representative
Dyson encouraged Representative Croft to direct his question to the
Department of Law and the Department of Public Safety. He
reiterated that the goal is to satisfy law enforcement requirements
in order to establish illegal and legal users.
REPRESENTATIVE CROFT asked if the committee would hear testimony
from doctors because this was primarily intended as a medical
statement.
REPRESENTATIVE DYSON mentioned that he spoke with an intern friend
of his in Anchorage who took HB 213 to the legislative committee of
the local American Medical Association (AMA). This friend said
that most doctors would not have difficulty in filling out the
form.
REPRESENTATIVE DYSON indicated that there would be testimony from
individuals with desperate physical conditions for whom marijuana
is really helpful. Those individuals would be appropriate to
inquire as to how many joints a day are needed, how many joints are
produced from an ounce of marijuana, how long an ounce of marijuana
lasts, and if the individual has a designated provider who could
also possess a supply.
Number 1691
REPRESENTATIVE JAMES inquired as to where these individuals would
get providers.
REPRESENTATIVE DYSON discussed his conversations with California
officials who are concerned with quality control due to the
variation in potency and quality. First California attempted to
have known government-sponsored plots, but there was concern
regarding the protection from nonmedical users. Now California is
contemplating indoor growers. Representative Dyson said that
illustrates the difficulty in this situation until the federal
government treats marijuana as any other medicine.
REPRESENTATIVE JAMES noted that she did not vote for this
initiative. She had the impression that these individuals would
grow their own or the caregiver would grow the marijuana.
Therefore, the possibility of having a provider who provides
marijuana to those covered under the initiative and those not would
be eliminated.
CHAIRMAN KOTT inquired as to how three mature, flowering, plants
equate to the one ounce.
MR. PAULEY deferred to the Department of Public Safety. He pointed
out that the initiative removed marijuana from the list of
controlled substances in Alaska. Prior to the passage of the
initiative, the statute read "Marijuana is a schedule VIA
controlled substance." The initiative added the language
encompassed in HB 213 on page 2, lines 23-24 which reads, "[EXCEPT
FOR MARIJUANA POSSESSED FOR MEDICAL PURPOSES UNDER AS 17.37]" Mr.
Pauley said, "As far as this state's controlled substances are
concerned, marijuana used for medical purposes has no more legal
significance than a can of 7UP or a jar of peanut butter."
Therefore, there are some serious legal implications. For example,
it is illegal to have a firearm on your person when under the
influence of alcohol or a controlled substance to the point to
which the individual's physical or mental condition is impaired.
That would no longer be true with medical marijuana. Since medical
marijuana is no longer a controlled substance, an individual could
be stoned on marijuana, possess a weapon and that would not be
considered a crime. There are several other statutes that would
result in similar situations. Mr Pauley emphasized that HB 213
places marijuana back in the controlled substance schedule which is
very important.
Number 2066
REPRESENTATIVE KERTTULA asked if registration under the initiative
was voluntary and has been changed under HB 213 to be mandatory.
MR. PAULEY explained that the initiative created a registry and Mr.
Finkelstein has indicated that it was the belief that everyone
should register, but the initiative does not state as such. He
directed the committee to page 4, Section 17.37.030 which specifies
the criteria for medical use of marijuana, there is no mention of
registration.
REPRESENTATIVE KERTTULA pointed out that the initiative does speak
to registration on page 4, lines 22-25.
MR. PAULEY stated that the language referred to by Representative
Kerttula does not require registration and there is no disagreement
on that point. He mentioned that Mr. Finkelstein testified in
previous committees that it was the initiative's intent to leave
registration optional.
REPRESENTATIVE MURKOWSKI returned to the issue of quality control.
She noted that the THC content in marijuana varies widely,
especially in Alaska. Therefore, what works for a patient on a
Saturday may not be what works on a Thursday due to the use of a
different batch of marijuana. The quality issue is very
problematic.
REPRESENTATIVE ROKEBERG understood that the constitution provides
that any initiative cannot be changed in the first two years.
MR. PAULEY explained that the legislature cannot repeal a law
enacted by initiative for two years, but the law can be amended
which is explicitly stated in the constitution. Mr. Pauley
acknowledged that there is a legal gray area. There have been
court cases in which an initiative has been amended in such a
dramatic way that it repeals the initiative de facto, but not
explicitly. The consensus is that the courts would find that
unconstitutional. Mr. Pauley did not believe that the changes
encompassed in HB 213 are so severe that the court would interpret
them as repealing a person's right to use medical marijuana.
TAPE 99-64, SIDE A
Number 0001
REPRESENTATIVE ROKEBERG suggested that the committee should get a
letter to that effect.
DEL SMITH, Deputy Commissioner, Office of the Commissioner,
Department of Public Safety, informed the committee that the drug
units that have worked with the state troopers and local law
enforcement advise that the average plant in Alaska produces about
four ounces. It can be anywhere from one ounce to ten ounces
depending on the size of the plant. One ounce and six plants is a
sufficient amount.
MR. SMITH addressed the department's concern about "medically
necessary" which is not defined anywhere. Under the Ravin decision
one could possess marijuana for "personal use" but someone claimed
100 pounds was his personal use which lead to the four ounce
maximum possession for personal use. Mr. Smith would like a bright
line for law enforcement with regard to the patient being
registered, the amount of marijuana patients can possess, where the
patient can possess it, and who is the patient's primary caregiver.
Number 0374
CHAIRMAN KOTT asked what procedures would be available if the
patient dies and the caregiver is left with a pound or two of
marijuana. He wondered if it is incumbent on the caregiver to
dispose of the marijuana through the department or are there other
mechanisms that could be used.
MR. SMITH said he supposed that was an option but he doubted many
people would follow that particular one. He is not aware of
anything that would require the caregiver to do that. He did not
have an answer.
REPRESENTATIVE GREEN asked whether there has been any discussion on
the strength of marijuana, and is there movement towards an
undesirable location.
MR. SMITH answered potentially. The MMA calls for that amount.
There certainly is an increase in the THC content of marijuana from
20 years ago.
REPRESENTATIVE JAMES inquired as to how fast the marijuana plants
grow.
MR. SMITH answered that to be beyond his expertise, although there
is substantial investment made in greenhouse operations and grow
lights in the Matanuska Valley. He has heard the plants can be
harvested three to four times a year.
REPRESENTATIVE KERTTULA asked how the registration would work now.
MR. SMITH explained that if an unregistered individual is found
with marijuana, the officers would determine if the person looked
sick enough to have medical marijuana and if not, the marijuana
would be seized and the individual charged with possession. These
charges could potentially be undone in court and the marijuana
returned which is not a good use of criminal justice resources.
Mandatory registration would be more appropriate.
REPRESENTATIVE KERTTULA mentioned that Alaska is a state where
people don't even want to register their guns. She predicted the
same problem with prescription drugs.
MR. SMITH answered he would probably ask if there is a prescription
for the drug and check for a bottle with the individual's name on
it which would serve the same purpose as a marijuana registry card.
Number 0983
REPRESENTATIVE ROKEBERG asked Mr. Smith a large marijuana growing
area is busted, can the potency of the plants be determined. Would
that have any bearing on the charges and/or the evidence acquired?
MR. SMITH said that the crime lab can determine the THC content,
but he didn't believe that it would enhance the charge in any way.
The total amount of marijuana possessed, not necessarily the
strength, would determine the charge.
Number 1074
REPRESENTATIVE CROFT asked Mr. Smith if it is illegal for him to
have codeine without a prescription.
MR. SMITH answered to his knowledge he would need a prescription
for codeine.
REPRESENTATIVE CROFT asked what the standard procedure would be if
an individual was pulled over and found to have codeine without the
prescription there. The individual either doesn't have a
prescription or is unwilling to show it to the officer.
MR. SMITH responded that is situational. He could see a situation
where an officer might seize the pills to look into it further. In
further response to Representative Croft, Mr. Smith stated that he
was unaware of a list of codeine users.
REPRESENTATIVE CROFT inquired as to whether Mr. Smith would attempt
to find out if the individual had a prescription.
MR. SMITH replied if the individual said Dr. Feelgood prescribed
the drug to him/her, it would be appropriate to call Dr. Feelgood's
office and asked if that person is a patient.
REPRESENTATIVE CROFT asked whether a warrant would eventually be
necessary to resolve such a situation.
MR. SMITH replied if the individual was not arrested at the time
the police would probably have to return with a warrant in order to
charge the individual with possession. However, it would depend on
the situation so it is hard to answer. He noted that he tries to
be fair in the application of the law.
REPRESENTATIVE CROFT said when Ravin was passed, four ounces of
marijuana was chosen as the amount someone could keep.
MR. SMITH clarified that the Ravin decision allowed the possession
of marijuana. The legislature determined the amount of four ounces
after lengthy discussion of whether stems and seeds should count in
the total amount. Still, the federal law prohibiting the
possession of marijuana was not addressed nor does this particular
one.
REPRESENTATIVE CROFT inquired as to who is allowed to view the list
of registered medical marijuana users; how onerous would it be for
law enforcement to have to obtain a warrant to search that list?
MR. SMITH envisioned the individual carrying the card. If the
individual is not carrying the card, the officer could ask for the
individual's driver's license and request dispatch review the
registry in order to determine if the individual in question is on
the list. If that isn't possible, the other option would be to
take the marijuana from the individual.
REPRESENTATIVE CROFT commented that the initiative gave them the
authority to search the list.
MR. SMITH agreed, but noted that people did not have to register.
He doesn't want the officers put in the position of trying to
determine whether someone is telling the truth about being able to
possess medical marijuana. He would rather sort things out and not
have to charge someone who is legally possessing marijuana.
Number 1518
DEAN GUANELI, Chief Assistant Attorney General, Legal Services
Section - Juneau, Criminal Division, Department of Law, testified
in Juneau. He stated that the Administration has heard the voters
who want to provide marijuana to people with debilitating medical
conditions. The aim of the Administration in working with the
sponsors of SB 94 and HB 213 is to make a workable system. There
are certain flaws in the current initiative that would lead to
administrative problems which would ultimately lead to the programs
failure. Both SB 94 and HB 213 correct all of those problems
therefore, the Administration supports these efforts.
Number 1518
CHAIRMAN KOTT asked Mr. Guaneli whether an Elk's Club would be
considered a public place, and would someone be able to use
marijuana there under the current scheme.
MR. GUANELI explained that the particular provision doesn't use
the term public place, but rather "open to the general public."
Private clubs would not be open to the general public although, an
argument could be constructed where it is open to the public. Mr.
Guaneli believed that if a court is applying that particular
language dealing with criminal prosecutions, terms in the law are
construed against the state in favor of a defendant. It probably
would be permissible to use marijuana for medical purposes in a
private club. Having said that, he also felt it would be
permissible for the private club to have a by-law saying it doesn't
want members doing that.
Number 1690
REPRESENTATIVE MURKOWSKI asked whether this could possibly be
construed as repealing the initiative. Has the Department of Law
taken a position or been asked for an opinion on this?
MR. GUANELI said no opinion has been solicited but upon review of
the various versions of the bills it was determined that at least
those versions would not constitute an appeal of the initiative.
In Alaska an initiative cannot be repealed for two years, but it
can be amended at any time which the courts have construed as
giving the legislature very broad discretion to amend initiatives.
The Alaska Supreme Court has said as long as the basic purpose and
structure still remain, the legislature can change policy choices
that the voters adopted. The basic purpose in structure to allow
very sick people to have access to marijuana is certainly still
retained in any of the versions. Mr. Guaneli indicated that the
Department of Law would believe it to be constitutional.
Number 1768
REPRESENTATIVE ROKEBERG proposed a situation in which the U.S.
Attorney decided to be more aggressive in the enforcement of
federal laws. Could the Alaska State Troopers make an apprehension
on a judgement call and turn the evidence over to the U.S. Attorney
for prosecution of federal law?
MR. GUANELI replied that is something that is possible and
actually happened with a few large marijuana growing operations in
the Matanuska-Susitna valley several years ago. A few cases were
prosecuted by the U. S. Attorney's office and got very stiff
sentences which created a situation where the marijuana growers
were more willing to go into state court and plead to a state
offense rather than be subjected to federal prosecution. He
pointed out that really only occurs with the large growing
operations because the federal government doesn't have the
resources to deal with the smaller cases.
Number 1835
REPRESENTATIVE ROKEBERG asked whether the U. S. Attorney General
has articulated a policy about dealing with states who pass
initiatives.
MR. GUANELI understood that there are a number of discussions
underway in terms of developing a national approach to medical
marijuana. He didn't expect the federal government to deal with
this in terms of enforcement.
REPRESENTATIVE ROKEBERG asked Mr. Guaneli if he foresaw problems
enforcing the Alaska state law if marijuana clubs were formed in
Alaska.
MR. GUANELI replied yes. There is a provision in the initiative
that says a registered patient may not sell or distribute marijuana
to anyone who the patient knows is not entitled to use it. If all
of the negatives are eliminated, it would result in a registered
patient being able to sell to other people if the registered
patient didn't ask. Such a provision is likely to result in
marijuana clubs or places where registered patients could lawfully
sell marijuana to other people. The danger of allowing someone to
possess more than one ounce and six plants is this provision. The
marijuana clubs in California were shut down because there was
nothing specific in their law that suggested marijuana clubs were
legal. In Alaska the oddly worded provision would allow that which
is one of the real dangers in this particular initiative.
Number 2142
BILL KOZLOWSKI, a 27-year-old with severe hemophilia, testified in
Juneau. He informed the committee that he has been prescribed
narcotics throughout his life, to the point where he was taking 60
milligrams of morphine a day and 28, four milligram, Dilotted
tablets a day. He commented that is a lot of narcotics, but noted
that is for pain that is very, very real. During those times of
being prescribed large amounts of narcotics he was unable to exist
in a normal life. He could not remember having a conversation with
anybody, what he did yesterday or the day before, and he could not
hold work due to the pain and daily bleeding in his body. Until
five months ago, he was taking the aforementioned amount of
narcotics, which would kill most people. He explained that amount
of narcotics probably doesn't kill him because he has an enormous
tolerance to those narcotics. The more he uses those narcotics,
the more his body builds up a resistance to them which results in
the need for more. He stressed the difficulty this creates when
coming off of the narcotics. The withdraw of morphine, which he
has endured many times, is something he would wish upon no human
being. It is an existence where one sweats, vomits, cries and
spends the most miserable existence imaginable. In the last five
months Mr. Kozlowski has stopped using narcotics that extensively.
However, his life will never be free of narcotics because of his
disability; but on the day-to-day basis it can be. Marijuana is
one thing that he can use that allows him to remember a
conversation, to have a life, to go for a walk with his wife.
Small things that many people take for granted but are very, very
important.
MR. KOZLOWSKI commented that he hears talk about usage in the
amount of an ounce or four ounces. The reality is, over time,
people build immunity to these things and terminally ill people who
are not getting better, are always going to have these problems.
Nobody is going to develop a cure for hemophilia, Hepatitis C, or
HIV [human immunodeficiency virus] right now. Those diseases are
debilitating. With regard to HB 213, he expressed concern with the
registration requirement. Mr. Kozlowski informed the committee
that he has had to endure discrimination because of hemophilia.
Ninety percent of hemophiliacs have HIV which was contracted
through blood in the 1980s. He commented that he is one of the
luckiest hemophiliacs he knows. He is the only hemophiliac in
Alaska who does not have HIV and one of six on the west coast. He
finds it hard to listen to people make jokes with regard to
marijuana use. He emphasized that people are forgetting this is
about more physical pain than one could ever imagine. He pointed
out that many look at him as a 27-year-old man who could lift 10
pounds, but he can't. Lifting 10 pounds, moving that chair, can
cause an internal bleed which results in pain for weeks.
MR. KOZLOWSKI informed the committee that the drug products that he
uses cost $2,000 a pop. Sometimes he uses that two or three times
a day, for months. Last year his blood costs and pharmaceuticals
cost $550,000. He noted that he has personally spent thousands of
dollars of his money on pharmaceuticals. Currently, with medical
marijuana he can grow it in his home, take care of his own needs
and be a productive member of society. The only other option is
narcotics; marijuana or narcotics, it seems simple. He said that
he can either be a junkie and have a short life or he can make his
life the best he can. The laws don't matter to people who are in
this position because they are going to die anyway of something
much more painful than anything the state could do to them. Mr.
Kozlowski urged the committee to give it a chance to work as it is.
Number 2374
REPRESENTATIVE ROKEBERG asked Mr. Kozlowski if he believed people
without major medical debilitating conditions should be able to
take advantage of his condition and use marijuana "piggy backing"
off of his problems.
MR. KOZLOWSKI commented that currently someone can go to a doctor
and he can legally prescribe morphine, Demerol, Dilotted,
Methadone, all drugs that are so much harder on the body. The
argument that if marijuana is legalized for medicine then everybody
will be smoking it, if that were true then people would be using
morphine in the streets, which is a much more addictive drug. He
informed the committee that if he were to stop smoking marijuana
for pain, he could go to sleep, it may be painful, but he would be
able to sleep and his body would not have to sweat out narcotics
for up to a week. If he were taking narcotics for a month and he
stopped, it could kill him because of the toxicity of those drugs.
Number 2431
REPRESENTATIVE ROKEBERG expressed concern that medical marijuana
users are being used, to a degree, to allow people, acting under
the guise of a condition, to do something that has formerly been
illegal. Such people don't have a problem like Mr. Kozlowski and
are taking advantage of loopholes in the law.
MR. KOZLOWSKI pointed out that those people would be subject to the
same regulations and laws that apply to morphine, methadone,
Demerol, Dilotted, all those classes of drugs. If someone has a
prescription for morphine, it is illegal for that person to give it
to someone else, just as it is illegal for him to give his
marijuana to his wife.
TAPE 99-64, SIDE B
MR. KOZLOWSKI likened the registry, which can be checked to verify
for criminal investigation or prosecution, to fishing from a
stocked pool. What is to protect him from having that abused by
someone that is really against the use of marijuana for medical or
any purpose?
Number 0033
REPRESENTATIVE ROKEBERG noted that anyone with a prescription is on
a list from the dispensing pharmacy.
MR. KOZLOWSKI asked how that registry is accessed.
REPRESENTATIVE ROKEBERG said he believes it is confidential in
terms of the pharmacy and is not generally available to the public.
MR. KOZLOWSKI noted Mr. Smith's testimony that officers could call
a doctor's office and ask for verification if someone has a
prescription. Mr. Kozlowski said the officer can't do unless the
patient has given the doctor a release of medical information.
With regard to discrimination, people assume that Mr. Kozlowski has
HIV because he is a hemophiliac and people treat him like "so, do
you have AIDS yet?" Many times he heard that from doctors and
nurses. He said he doesn't want to live through that stigma. He
said he is not a criminal and is not somebody who actively hurts
any individual. Mr. Kozlowski stated that he is only looking to
take care of his own medical needs which is not a lot to ask. The
voters of Alaska have agreed that the people who need medical
marijuana should be eligible to use medical marijuana.
Number 0102
CHAIRMAN KOTT commented that the committee is trying to do that and
eliminate the loopholes to give the people exactly what they want.
He asked Mr. Kozlowski how many plants would be enough.
MR. KOZLOWSKI answered that it seems to him that police everyday
can discern if somebody is using tobacco or alcohol legally. If
somebody is driving with a truckload of marijuana, it probably is
not for medicinal use. He doesn't know anyone who uses medical
marijuana who would ever claim that a truckload would be their
need. As far as personal use goes, Mr. Kozlowski informed the
committee that he smokes one ounce every 10 days to control the
pain. Without that he would be up to 60 milligrams of morphine and
28, four milligram tablets of Dilotted a day. He emphasized that
they are splitting hairs in areas he doesn't know how one could
ever control. He didn't know how one could ever control the amount
taken from one plant because it does vary so greatly.
Number 0240
CHAIRMAN KOTT asked Mr. Kozlowski if he knew what one ounce of
marijuana would cost on the street if he were to buy it illegally.
MR. KOZLOWSKI answered between $500 and $600 per ounce.
Number 0274
CHAIRMAN KOTT asked whether Mr. Kozlowski started off using one
ounce every 10 days or has his system built up an immunity.
MR. KOZLOWSKI replied that his system has built up a tolerance to
marijuana as was the case with morphine and other drugs. Over
time, the more he uses, the more he will need. If anyone in this
room took 60 milligrams of morphine, he would die. He explained
that he uses marijuana when his body hurts, when there is blood in
his joints, when his hips or shoulders have swollen, when it hurts
just to get up and go to the bathroom. He noted that marijuana
does not make him high or feel good, but it gets him to a point
where the pain is not the only thing he can think of.
REPRESENTATIVE ROKEBERG asked how long it takes to grow a
decent-size plant.
MR. KOZLOWSKI answered that it depends of which method is used.
Some people used hydroponics with which every six to eight weeks
one can turnover a crop, while with dirt it would probably take
three to four months for a crop.
CHAIRMAN KOTT surmised then that once a quarter he could turn over
a crop.
MR. KOZLOWSKI agreed. In further response to Representative
Rokeberg, he stated that the size of that crop would depend.
Marijuana varies in strength, size, quality, and growth.
REPRESENTATIVE ROKEBERG noted that the problems regarding amounts
of medical marijuana are caused by what the initiative stipulated
in the open-ended clause.
Number 0427
REPRESENTATIVE MURKOWSKI agreed that people like Mr. Kozlowski need
to have medical marijuana and they need to make it work. She
recognized that this needs to work for Mr. Kozlowski as well as for
the rest of the public which includes law enforcement and children.
She expressed the need to understand from someone like Mr.
Kozlowski, the problems of the registration. If registration is
optional, Mr. Kozlowski is put in jeopardy. The registration
process was proposed in an effort to protect him, but if
registration is not mandatory, then Mr. Kozlowski is at risk
which is not the intention. She asked how they would get from here
to there.
Number 0516
MR. KOZLOWSKI understood that if he did somehow become in trouble
with the law for medical marijuana, that under Measure 8, that as
long as he had a doctor's recommendation that was documented in his
medical file, that would not be an issue.
Number 0545
REPRESENTATIVE MURKOWSKI wondered what happens if he is stopped at
1 a.m. on Saturday night and the doctor isn't around until Monday
morning to confirm his recommendation. Would the officer seize his
marijuana which he desperately needs over the weekend? She
wondered how Mr. Kozlowski would be protected in that instance if
there is no registration.
Number 0590
MR. KOZLOWSKI commented that the registration is a Catch-22 because
the State of Alaska has made a law that allows people to use
medical marijuana while the United States of America still has not
allowed that law. Therefore, the registry would place his name on
a registered list of things that are federally illegal which is
asking for a lot more problems. He indicated that it is crazy to
register his medical condition on an open registry for which his
doctor has to write a letter stating his exact medical condition.
This would ask people to state that they have HIV, hepatitis and a
whole gamut of medical conditions that are no one's business.
Placing his name on a list that is still federally illegal is more
threatening to him than the state. He informed the committee that
he has used marijuana, on and off, for 10 years for pain
medication. Only in the last five months has he used it solely and
he has never had any problems with the law. He questioned how the
registry is really going to protect him so that his medical records
are not released and that somebody is not going to access those
files and discriminate against him for his disability.
Number 0671
REPRESENTATIVE MURKOWSKI understood that the registry list would be
confidential and would only be available to law enforcement
officers.
CHAIRMAN KOTT agreed that was his understanding. It wouldn't be
like the sex offender list that is available on the Internet. He
asked Mr. Kozlowski if it would offer some satisfaction if the
physician did not have to identify the patient's symptoms.
Number 0733
MR. KOZLOWSKI pointed out that he is having to prove his innocence
before he is guilty of anything. He reiterated that he is not a
criminal. If a police officer knocked on his door and asked if he
was growing marijuana, he would be happy to show the officer his
plants, his $40,000 worth of blood supply. People with a medical
problem have plenty to illustrate their medical condition such as
other medicines and documentation that they can show a police
officer. The registry is an invasion of privacy.
REPRESENTATIVE ROKEBERG noted that the short form of the initiative
on the ballot indicated that a registry would be expected by the
public.
MR. KOZLOWSKI said it should be optional.
REPRESENTATIVE ROKEBERG commented that he didn't believe the public
knew that, and that is the problem with this initiative. He
suggested to Mr. Kozlowski that, because it has been passed as a
statutory privilege and not a constitutional right, the best thing
to do to protect himself and his ability in the future is to try to
make some modifications of this law to live with. Representative
Rokeberg indicated that Mr. Kozlowski also has some responsibility
with the privilege that was granted by the people of Alaska to meet
his needs.
REPRESENTATIVE ROKEBERG said he didn't believe the whole nine-page
chapter was on the ballot; it was a short-form question on the
ballot. "People were sold that and nobody, nobody reads the whole
bloody law. I'm going to tell you, 99 percent of the people who
voted didn't read this. If 5 percent did, then 99 percent didn't
understand it."
MR. KOZLOWSKI answered "Excuse me, but that is silly to say because
that is like saying if 99 percent of people don't read these things
then how are you elected. How are you people elected if people are
not paying attention and reading and being part of the process, how
are you elected in your seats?"
REPRESENTATIVE ROKEBERG said the initiative is nine pages long and
he didn't believe people read it. He referred back to the registry
and indicated that there is an expectation that there would be a
registry.
MR. KOZLOWSKI commented that when he read it he noticed that it did
not have mandatory registration. He reiterated that it is nobody's
business what debilitating disorder he has.
Number 0949
CHAIRMAN KOTT asked Mr. Kozlowski if that ballot proposition the
way it was written required the end user to register on a
confidential list and carry a card, would he have supported it.
MR. KOZLOWSKI replied that he probably would have supported it
because it was a necessity, not for just him. He stressed that he
is present for the people who are too scared to talk; people who
are afraid to say that they use marijuana for pain.
REPRESENTATIVE KERTTULA appreciated Mr. Kozlowski's courage for
coming in and testifying and putting himself at some risk. She
believed a registry could be created for the people who could go do
it; but for those who don't want to do it, they may be taking a
risk. She appreciated what Mr. Smith said also but her own
personal belief is that Alaska is a state where no one wants to
register their guns, why would they want to register their medical
conditions.
Number 1015
CHAIRMAN KOTT interjected that Alaskans do register their guns if
they carry them under their coats.
REPRESENTATIVE ROKEBERG clarified that he was not advocating
registering conditions.
The committee took an at-ease from 4:08 p.m. until 4:48 p.m.
ELMER LINDSTROM, Special Assistant, Office of the Commissioner,
Department of Health and Social Services [DHSS] came forward to
testify. He said they have worked with the Department of Law and
the Department of Public Safety to try to come up with
recommendations that everyone could live with and support as the
administration. The DHSS brought a different perspective than the
law enforcement agencies. The previous testimony reflected some of
the concerns of DHSS. He recognized that law enforcement had
legitimate concerns. However, any solution must not make the
administrative burden on DHSS difficult or unduly interfere with
the doctor/patient relationship which is key to making this program
work and most importantly, is the issue of patient confidentiality.
The bill has gone through numerous iterations. He assumed that the
amendments that provided before the meeting will be before the
committee for consideration.
Number 1226
MR. LINDSTROM referenced an amendment, labeled G.1, which addresses
the confidentiality issue. The previously expressed concern
regarding a requirement to be on the mandatory registry is a real
concern. The issue of confidentiality is something that DHSS lives
with everyday of the week and there is nothing that DHSS takes more
seriously than the issue of patient or client confidentiality. The
department has a very good record over the years of respecting the
law in that regard. He noted that it is not infrequent that he
gets called to task by members of the legislature because DHSS does
take the issue of confidentiality so seriously. He recommended
that the committee consider amendment G.1. The department doesn't
believe it has any reason to have information from a doctor that
specifies the underlying condition that a person might have. There
is no law enforcement reason for DHSS to have that information and
furthermore, the Department of Public Safety has also said it
doesn't need that specific information. He acknowledged that there
will be people who will not register, but ultimately that will get
resolved over time when people gain confidence that DHSS can be a
responsible custodian of that registry and that likewise law
enforcement will be responsible in their ability to access that
registry.
REPRESENTATIVE KERTTULA noted that the fiscal note doubles to go
from voluntary to mandatory registration. There isn't anything
illegal about not registering now, it is voluntary, she asked
whether that was the department's understanding of the way it
worked right now.
MR. LINDSTROM agreed that currently it is a voluntary registry.
The department has developed regulations which will go into effect
June 1, and persons will be able to register voluntarily with DHSS.
Regarding the fiscal note, the department had no ability to get
funding in anticipation of the initiative passing so there was a
budget increment in their budget which was turned down by both the
House and Senate Finance Committees. It was about $70,000.
Without this fiscal note of $57,000, this legislation is not going
to satisfy the real concerns of the law enforcement community
because DHSS will not be able to provide the information that law
enforcement will need. The department envisions law enforcement
having real time access to the registry through the public safety
network, criminal justice system. Without this money, law
enforcement won't have that information.
Number 1574
REPRESENTATIVE GREEN asked if an unregistered person is stopped,
would that person be prosecuted.
MR. LINDSTROM explained that the current regulations will have to
be written from top to bottom assuming that this legislation
passes. If the legislation doesn't pass, the regulations are a
process for the department to operate a voluntary register. If an
unregistered person is stopped, the department wouldn't know
anymore than the cop on the beat because there would be nothing in
the register.
REPRESENTATIVE KERTTULA inquired as to what kinds of drugs do
people have to register for now.
MR. LINDSTROM replied that this is a unique situation.
Number 1664
REPRESENTATIVE MURKOWSKI asked whether the regulations have changed
much since March after public comments were received.
MR. LINDSTROM informed the committee that he was surprised the
department received virtually no public comment on the regulations
The regulations remain pretty much the same as those presented to
the House Health, Education and Social Services committee earlier.
REPRESENTATIVE MURKOWSKI inquired as to what would be in effect in
the interim if they pass either SB 94 or HB 213 and DHSS would be
back at the drawing board with their regulations.
MR. LINDSTROM answered that the new legislation would override the
existing regulations to the extent the current regulations are
contrary to anything in the amended law. Some of the elements
would remain consistent, but the department would need to develop
additional regulations on the new material from this bill. The
department would operate on the basis of the legislation itself
until new regulations were in place. This program would call for
moving forward with those regulations pretty quickly.
REPRESENTATIVE KERTTULA pointed out that under HB 213 peace
officers would be allowed to access the record just in the course
of a criminal investigation. She asked Mr. Lindstrom if he knew of
any other medical records that could be accessed in such a manner
without a warrant or without the person's consent.
AL ZANGRI, Chief, Vital Statistics, Division of Public Health,
Department of Health and Social Services, answered that DHSS has
routine access to all medical birth records.
MR. LINDSTROM noted that DHSS has no objection to any of the
amendments but wanted to reference the one as being most pertinent.
REPRESENTATIVE GREEN asked Mr. Lindstrom if the department has no
objection, does that mean the department is ambivalent or that it
would support the amendments.
MR. LINDSTROM responded that the department really likes Amendment
1 and likes the others okay.
DAVID FINKELSTEIN, Alaskans for Medical Marijuana, came forward to
testify. He explained that when this legislation was originally
introduced, it was March 4, the day the initiative went into
effect. At that time the Alaskans for Medical Marijuana were quite
defensive and were concerned that this legislation would repeal
the initiative and the patients wouldn't benefit from the new law.
Since that time things have changed. The Administration and
Senator Leman have tried their best to respond to many of the
concerns expressed by doctors and patients which is appreciated.
However, Alaskans for Medical Marijuana remains opposed to this
legislation, but will continue to try to work with the
Administration and with the sponsor. He didn't want any of his
comments to detract from their efforts to try to find something
that will not alienate and eliminate the patients from the benefits
of this law.
MR. FINKELSTEIN informed the committee that the drafters of the
Alaskan initiative tried to put in many details since that was the
number one complaint of the California initiative. He agreed that
there are some legitimate complaints with some of the details and
how those are laid out. The reason there was so little response to
the regulations is that many of those issues were already dealt
with in statute through the initiative. The drafters also learned
from the California experience with regard to amounts. California
has no limit on amount. Of all the initiatives that have passed
around the country, the standard of one ounce, six plants which can
only be exceeded if someone can prove in court that it is medically
justified, is the lowest limit of any state who has adopted such an
initiative. He is not aware of any state with an amount lower than
Alaska. It is the lowest amount the group could come up with and
still give the patients a chance to produce some useable marijuana.
MR. FINKELSTEIN noted that the California initiative of 1996 did
not have any set list of medical conditions; it was basically
whatever the doctor wanted to recommend. He personally feels that
is the way it should be done, but that approach was not chosen
because Californians complained that people could get marijuana for
a hangnail or something. In Alaska it has to be something on the
list of medical conditions. The registration system has faced a
lot of complaints, as if there is something deceptive to having a
registration system. There hasn't been a single state that has
adopted an initiative with a mandatory registration. The states
are striving for optional registration.
TAPE 99-65, SIDE A
MR. FINKELSTEIN continued saying that unregistered patients have no
protection from arrest. He appreciated all the concerns expressed
by the Administration and recognized the need to work together to
address those concerns. However, the system will work as it is
because the patients who don't want to register are not worried
about arrest. Furthermore, f someone hasn't registered and gets
into court, all he/she will have to do is provide evidence that
he/she is legally allowed to have medical marijuana. Mr.
Finkelstein encouraged patients to register if they want protection
of the law. This is a non-issue because the patients are out there
with small amounts of marijuana and not bothering anyone. He
agreed they can't do anything about private locations, but they
want to prohibit use in public location.
MR. FINKELSTEIN pointed out that there are several issues that
revolve around mandatory registration. The system should be such
that it will benefit the patient to encourage registration. He
cited the kind of protection the patient receives from law
enforcement as a critical issue. Under the initiative, any patient
who follows the law, meets all the requirements, registers with the
state, is not subject to arrest. The burden is on the prosecution
to prove their case. Under this bill, the term not subject to
arrest is not provided, even to patients who register with the
state. Instead the registered patients receive an affirmative
defense which as he understands it, places the burden of proof on
the patient. The patient has an affirmative defense if the patient
can come up with the evidence that illustrates compliance with the
law such as possession of the registration card, proof that the
patient didn't use marijuana in public and that the patient is
under the limits. It is up to the patient to show that and until
the patient can prove that, the patient is presumed guilty. If
patients make the effort to register and comply, they should have
the presumption of innocence.
MR. FINKELSTEIN stated that with mandatory registration patients
will be discouraged to register due to access to the list. The
initiative only allowed access to the list by the department and
law enforcement officials in order to verify someone showing a
card. This bill adds two conditions. The first one is someone
claiming this as a defense but doesn't have a card; this would give
the officer an opportunity to check the list for their name and
that is certainly logical. The second is to access the list for
investigations which is not the intent of the initiative nor the
purpose of this system. Furthermore, it will discourage patients
from registering. Doctors disclosing symptoms to the state will
also discourage participation.
MR. FINKELSTEIN commented that the issue of caregivers is also
important. The department adopted some reasonable regulations on
the current law which allows only one patient per caregiver unless
one can illustrate a circumstance in which the caregiver has a
particular relationship with more than one patient. If there is a
hospice situation where someone is professionally offering
assistance to more than one person, it seems reasonable that a
hospice employee could apply to the department and be allowed to
have a relationship with more than one patient. The bill makes an
attempt to address some situations through the reference to family
members. However, Mr. Finkelstein believed that there are other
circumstances in which the caregiver is not a family member. He
wouldn't expect many applications for such situations. The
department should have the discretion to review such circumstances.
Number 0647
MR. FINKELSTEIN referred to the issue of how the patients obtain
marijuana. The patient has the option of growing marijuana, but
some will not grow marijuana either because their condition doesn't
allow it or they don't succeed at it or for unknown reasons. Mr.
Finkelstein indicated that it is not as easy to obtain the
marijuana as it sounds. The choice is for the patients to go on
the black market. There were attempts to establish a system that
would allow patients to get marijuana from other patients, but
DHSS and the sponsor have reasonable objections. He suggested that
the middle ground would be to ban sales between anyone, but that
one patient could give marijuana to another patient as long as
there is no compensation involved. Otherwise, how will the
patients obtain the marijuana legitimately? He acknowledged that
there is a problem in that area and they can't solve it. The
ultimate solution would be to categorize it as Schedule II so
patients could obtain it from pharmacies, but in the meantime this
would be a humane way to help those who can't obtain it.
Number 0737
MR. FINKELSTEIN identified the forfeiture language as another key
provision. The initiative was written with the idea that anyone
who isn't breaking the law, who hasn't been found guilty, doesn't
forfeit their assets. The drug forfeiture law is pretty extreme
and for good reason. He clarified that the language of the
initiative says that if someone isn't guilty, that their assets are
returned. Mr. Finkelstein returned to the subject of the
caregiver. He explained that the age of the caregiver was set at
18 because if a 17-year-old claimed to be a caregiver and it turned
out they weren't, the 17-year-old would be under the juvenile laws
and not subject to the full force of the law. The Department of
Law and the sponsor felt that 21 was more reasonable because of
alcohol laws and other things while Mr. Finkelstein believed 18 is
a more appropriate age.
REPRESENTATIVE GREEN asked whether marijuana is similar to tobacco
in that it will dry out if it is kept very long.
MR. FINKELSTEIN recalled a television program about a federal farm
in Mississippi that grows marijuana for eight patients. The
federal government itself provides marijuana for these patients.
He discussed the process and assumed there would be some issues of
volatility or whatever. He didn't know what the pharmacy or
distribution point does with it at that point. Mr. Finkelstein
believed it ironic that the federal government who is opposed to
medical marijuana is distributing medical marijuana.
REPRESENTATIVE MURKOWSKI asked Mr. Finkelstein how the state who
limited the amount of marijuana to two months supply defined a two
months supply.
MR. FINKELSTEIN answered he didn't know and it didn't sound like a
good solution to him. He commented that the patient doesn't care
what the amount is but rather how long it will last. He believed
that law enforcement was unhappy with that provision.
MR. FINKELSTEIN indicated that they never meant to imply that there
would be any attempt by law enforcement officials to misuse the
existing forfeiture law which is a very complicated subject. He
noted that they have never had a patient claim there has been any
particular harassment using the issue of forfeiture on medical
marijuana patients, but the protection does seem reasonable.
REPRESENTATIVE JAMES noted that she didn't vote for this
initiative. However, she indicated that she would have voted for
allowing the use of medical marijuana if she had felt comfortable
with the initiative's language. She recognized people are using
marijuana illegally now. She expressed concern with the
registration; where are patients going to get marijuana from when
there is no legal way to obtain it. She didn't believe seriously
ill people are going to be able to grow their own. Perhaps, the
caregiver may be able to grow it for the patient which still raises
the question of how do they get it. Are these ill people that are
allowed to use medical marijuana allowed to drive a car and do
other things under the influence of marijuana? It seems as if the
patients have carte blanche authority to do whatever, whenever and
she was nervous about that.
MR. FINKELSTEIN noted that they tried to address that, but the
Administration's view is that their way is better. The issue of
driving while inebriated still applies, there is no exception. If
someone drives under prescription drugs, he/she is an incapable
driver and is not protected which also applies to medical
marijuana. He pointed out that there was general language that no
person using medical marijuana shall endanger the health and
well-being of another person. Although the language doesn't
specifically say driving, but it would certainly be a violation of
the law if someone is threatening anyone else by driving under the
influence of marijuana. With regard to the issue of where patients
get marijuana, that is a problem to which he didn't have the
answer. If it is ever Schedule II, people can get it at the
pharmacies. He noted that the federal government has confiscated
plenty which could be redistributed.
REPRESENTATIVE JAMES asked whether Mr. Finkelstein believes, now
that the initiative has passed, there will be more people using
marijuana for medical uses or will the same folks continue using
it.
MR. FINKELSTEIN said he could only speak anecdotally based on his
contact with patients. Everyone is different but lots of people
indicate that they would with an identification card. Many have
been law-abiding their whole lives and are not about to take this
illegal drug without some proof to protect them from being thrown
in jail.
CHAIRMAN KOTT asked where senior citizens who are not growers are
acquiring the marijuana.
MR. FINKELSTEIN speculated that senior citizens obtain marijuana
through family members or younger people who have connections. The
statistics provided by the state indicate that marijuana is not
hard to get. However, there are plenty of people who don't have or
don't want any contact and those folks are going to be in a
dilemma. Hopefully some of them will figure a way out of it.
CHAIRMAN KOTT said if he were in a situation where he needed some
marijuana to curb some serious pain, would he be guilty of a crime
by buying an illegal drug on the street.
MR. SMITH said he couldn't foresee a situation, or it would be
rare, that they would be involved at that point unless they had
some sting operation and somebody shows up to buy some marijuana.
He believed there could be a good argument if the individual was a
medical marijuana user, that the search and acquisition of it might
fall under the protection as a registered user. It is unlikely the
person would be prosecuted. If it were prosecuted, he doubted that
the jury would find the person guilty. If he were the officer at
the time, he would probably not make the arrest, but that doesn't
guarantee another officer would do the same.
MR. FINKELSTEIN informed the committee that California has tried
many approaches. The city of Oakland has attempted to develop a
distribution system using the government in an attempt to eliminate
the black market; they are trying to recirculate extra marijuana
from drug busts. There are things that could be done.
Number 1690
REPRESENTATIVE GREEN asked whether one can tell the difference
between plants by looking at them.
MR. FINKELSTEIN said he had no idea. He identified the bigger
issue as how do patients deal with this issue of different
strengths. Patients claim that there are more compounds in medical
marijuana that have an effect. Smoking allows the patients to
self-titrate which allows the patient to control the amount and the
patient can receive a relatively quick reaction. Drugs, like
Marinol, take one to two hours to take effect and often don't work
for the problems such as nausea. Mr. Finkelstein explained that
patients basically smoke a small amount, determine if it is
effective and if not, smoke more. It is a practical system, but it
is not very scientific.
REPRESENTATIVE GREEN wonders if there is information on volume.
MR. FINKELSTEIN answered there are lot of issues about growing. He
commented that law enforcement isn't busting people in their homes
for small amounts. Furthermore, it is unlikely that someone is
going to have forests of marijuana in their home. The intent
certainly is to have a limited quantity, but the intent is to have
an exception for people who need more than the specified limit to,
if necessary, make their case in court to prove that more is
medically justified. That provision is no longer included.
REPRESENTATIVE MURKOWSKI asked Mr. Finkelstein if people understand
that they have the protection of the law only if they register.
MR. FINKELSTEIN responded that whatever understanding people have
is derived from what state government or advocacy groups explain to
them so he feels that understanding is yet to be derived. The
average citizen, patient, and even doctors don't know what the law
is. If the patient does not want to be subject to arrest, they
must register with the State of Alaska. That is the message they
have been consistently giving out. Although, Mr. Finkelstein
agreed that the departments' concerns are very reasonable, he
didn't think it would be a problem.
REPRESENTATIVE MURKOWSKI expressed the need to strike a balance.
If people don't register, they have to understand that law
enforcement is going to do the 1 a.m. arrest.
MR. FINKELSTEIN agreed.
CHAIRMAN KOTT noted that there is an enormous amount of public
safety time taken up with this issue of arresting someone who is a
legitimate user, but hasn't registered. He wondered if there
should be some sort of consequence for taking up that amount of
public safety time.
MR. FINKELSTEIN agreed that is a good point. The way it is going
to work is the same way it works now. Officers on the street have
a large amount of discretion. Even in the past, if someone has a
doctor's letter and all the requirements, odds are they wouldn't be
arrested. He has heard that law enforcement has too much to do
without focusing on small amounts in the home.
REPRESENTATIVE ROKEBERG asked whether the National Institute of
Health will be taking up the medical use of marijuana.
MR. FINKELSTEIN answered that Barry McCaffrey, the "drug czar"
asked the Institute of Medicine, arm of the National Academy of
Science, to do a study after the California initiative passed. The
report came out this spring and the general findings were that
medical marijuana does help patients in a variety of circumstances.
The report also found that smoking marijuana was detrimental and
the ultimate solution had to be some sort of system developed to
avoid the toxic side-effects of smoking.
CHAIRMAN KOTT suggested that the committee proceed to the
amendments.
TAPE 99-65, SIDE B
Number 0047
REPRESENTATIVE JAMES made a motion to adopt Amendment 1, which
read:
Page 2, lines 2 - 3:
Delete "symptoms disclosed in the physician's
statement described in AS 17.37.010(c)"
Insert "debilitating medical condition diagnosed by
the patient's physician"
Page 4, lines 3 - 4:
Delete "and specifying the nature of the patient's
symptoms"
CHAIRMAN KOTT asked whether there was any objection. There being
none, Amendment 1 was adopted.
REPRESENTATIVE JAMES made a motion to adopt Amendment 2, which
read:
Page 3, line 31, following "relationship":
Insert "and setting out the date the examination
occurred"
Page 7, line 18, following "documentation":
Insert ", including a statement signed by the
patient's physician containing the information required
to be submitted under (c)(1) of this section,"
Page 8, following line 10:
Insert a new subsection to read:
"(r) The department may not register a patient
under this section unless the statement of the patient's
physician discloses that the patient was personally
examined by the physician within the one-year period
immediately preceding the patient's application. The
department shall cancel, suspend, revoke or not renew the
registration of a patient whose annual resubmission of
updated written documentation to the department under (k)
of this section does not disclose that the patient was
personally examined by the patient's physician within the
one-year period immediately preceding the date by which
the patient is required to annually resubmit written
documentation."
REPRESENTATIVE CROFT objected.
Number 0133
MR. PAULEY informed the committee that originally HB 213 included
a stipulation that a patient applying to be listed on the registry
had to have provided a physician's statement saying he had been
diagnosed with a debilitating medical condition and that medical
use of marijuana is indicated. The requirement was that the
physician's examination of the patient had to have occurred within
a three-month window prior to the date of application. In the
House Health, Education and Social Services Committee that
three-month requirement was removed and which was partially in
response to a concern expressed by DHSS. The department thought
that could potentially create a hardship for patients in rural
areas. Theoretically, a patient could have one examination and
never get examined again. This amendment puts back in a
requirement that a physician's examination has to occur within a
one-year period as well as an annual renewal requirement.
REPRESENTATIVE ROKEBERG asked whether the caregiver's card is
annually reviewed.
MR. PAULEY answered the way it is written, the caregiver's card
goes to the patient.
REPRESENTATIVE CROFT noted that patients with incurable diseases
don't need an annual exam to tell them that they still have the
disease. There are requirements in the bill that are both valid
and adequate and he didn't see any need for Amendment 2.
REPRESENTATIVE JAMES commented that people who are seriously ill
are going to the doctor all the time.
REPRESENTATIVE KERTTULA pointed out that is accurate, but this is
intrusive.
Number 0477
MR. ZANGRI said the department's position is that the ill patient
will see the physician often enough in the year so that this will
not be burdensome in most cases. The department is concerned that
the prior provision requiring a three-month exam is intrusive and
burdensome. It may be burdensome in this case in the bush for
people to actually see a physician once a year but if they are
terminally ill we wouldn't have any problem with doctor contact and
a requirement for a personal physical examination.
REPRESENTATIVE KERTTULA commented that seems to be a harsh
requirement.
REPRESENTATIVE ROKEBERG noted this would not be workable in the
rural areas with telemedicine.
REPRESENTATIVE JAMES asked whether in rural areas they have
physician's assistants [PA] and nurse practitioners [NP].
MR. ZANGRI agreed with the concern in rural areas where the
standard medical practice is a PA rather than a physician.
However, there is a way around it in current statute if they
continue to define physician as somebody who is licensed to
practice medicine in the state because PAs and other secondary
practitioners are indeed licensed to practice medicine.
REPRESENTATIVE JAMES said she doesn't have any problem with a PA or
NP making this decision because they work under the auspices of a
physician. She would do anything to help the rural people not have
to make a trip to town to find a physician.
0635
REPRESENTATIVE CROFT indicated that the words "personally examined
by a physician" has a lot of unintended consequences.
REPRESENTATIVE JAMES suggested he reword it.
REPRESENTATIVE CROFT said he believes it is worded correctly in the
bill itself. It has two requirements: "you update who you are and
you got to keep your condition going." More attempts to
straitjacket this, will result in more people with legitimate
problems that have not been hypothesized here. The straitjacket of
Amendment 2 is not necessary.
REPRESENTATIVE ROKEBERG noted that physician is defined in statute
and wondered if the department is correct in that a PA can become
an equivalent of a physician for the purposes of this legislation.
Number 0717
MR. ZANGRI explained that a physician is any person licensed to
practice medicine. A nurse practitioner and a physician's
assistant are in fact licensed to practice medicine in the State of
Alaska.
MR. PAULEY said the definition of physician is unchanged from the
initiative; it is not a new definition in HB 213.
The committee took an at-ease from 6:15 p.m. to 6:16 p.m.
Number 0775
REPRESENTATIVE JAMES made a motion to delete lines 3 through 16 of
the amendment.
REPRESENTATIVE CROFT said that Representative James correctly noted
that there is nothing wrong having the initial setting saying the
date the examination occurred.
REPRESENTATIVE JAMES noted there is another problem in the last
paragraph because it is the only place where they will get the
one-year period. She said she would have to rethink that last
paragraph.
REPRESENTATIVE CROFT read from page 7, line 16 which reads:
To maintain an effective registry identification card, a
patient must annually resubmit updated written
documentation to the department as well as the name and
address of the patient's primary caregiver or alternate
caregiver.
REPRESENTATIVE CROFT noted they will report annually. The question
is are they going to get in a weird situation when someone wasn't
personally seen by their physician within the last year.
REPRESENTATIVE MURKOWSKI asked whether they aren't still required
to do that in (c)(1)(a).
The Committee took an at-ease from 6:17 p.m. to 6:23 p.m.
REPRESENTATIVE JAMES made a motion to amend the amendment to just
delete lines 6 through 16.
REPRESENTATIVE CROFT said he would not have an objection to that
amendment to Amendment 2.
CHAIRMAN KOTT asked whether there was any objection. There being
none, Amendment 2 as amended was adopted.
Number 0905
MR. PAULEY informed the committee that at the House HES meeting,
Mr. Finkelstein testified that this requirement that a primary
caregiver could only care for relatives, if they are in the same
household could pose a burden to people due to the way families
are structured these days. This is just a simple amendment to
delete that requirement and give more flexibility in that area.
The Department of Law had no problem with it either.
Number 0935
REPRESENTATIVE JAMES made a motion to move Amendment 3, which
reads:
Page 5, lines 6 - 7:
Delete "reside in the same household as the caregiver
and"
REPRESENTATIVE KERTTULA objected. She asked what happens in a
hospice situation.
REPRESENTATIVE JAMES explained that is covered in another
amendment.
CHAIRMAN KOTT asked whether there was any objection. There being
none, Amendment 3 was adopted.
REPRESENTATIVE JAMES made a motion to adopt Amendment 4 which
reads:
Page 1, line 14, through page 2, line 3:
Delete all material.
Renumber the following paragraphs accordingly.
Page 2, lines 17 0 18:
Delete all material.
Renumber the following paragraphs accordingly.
Page 2, line 20:
Delete all material.
Renumber the following paragraph accordingly.
MR. PAULEY explained that Amendment 4 attempts to address some
testimony, from critics of the legislation in previous hearings,
that it is an unreasonable requirement that the defendant has to
prove that the total amount of marijuana in their possession was
not being used for a non-medical purpose. It is the sponsor's view
that in the real world it doesn't get interpreted that way, and the
language is superfluous. It is an affirmative defense portion.
REPRESENTATIVE CROFT wondered why the critics want to remove one
potential affirmative defense. He also wondered why the definition
of debilitating medical condition as a reference and the definition
of the physician were deleted.
MR. PAULEY explained that the paragraph that is removed is the only
place in the section where those words are mentioned. Therefore,
with the paragraph removed there is no reason to have the
definitions there. The definition still exists, those are just
referential definitions that refer to the definitions in Section 7
beginning on page 12. They are conforming amendments. The
deletion of the definitions doesn't have any substantive impact.
MR. PAULEY commented that there has been a lot of testimony about
the burden of proof issue. There is a statute under the controlled
substances act, Title 11, Chapter 71, Section 50 on burden of
proof. It doesn't apply to the initiative as it is currently
worded because it took marijuana off the controlled substances
list, but in AS 11.71.350 it says: "It is not necessary for the
state to negate an exemption or exception provided for in this
chapter in a complaint, information, indictment, or other pleading
or at a trial, hearing, or other proceeding under this chapter or
AS 17.30. The defendant has the burden of proving by a
preponderance of the evidence any exemption or exception claimed by
the defendant." Legal services was asked if the affirmative
defense requirement in HB 213 was the same allocation of the burden
of proof that would exist in any other controlled substance case as
the law reads. Legal services replied yes. The burden of proof
resides with the defendant as in any other similarly situated
controlled substance case.
REPRESENTATIVE KERTTULA asked if that is why there is a new Section
4, page 8, lines 11-15 as well with the affirmative defense
language.
MR. PAULEY replied that is correct.
REPRESENTATIVE KERTTULA said in a regular drug prosecution,
possession must be proven beyond a reasonable doubt; there doesn't
have to be any affirmative defense to that. They could have an
affirmative defense, but they are not just agreeing that the burden
of proof rests with the prosecution on proving possession in a
normal drug case.
MR. PAULEY passed out a copy of the memorandum from legal services
which covered this issue. The question to legal services was:
Is this language consistent with the 'affirmative
defense' approach in Section 1 of CS for SSSB 94, [or in
this case HB 213,]. Is it accurate to state that the
burden of proof in SSSB 94 [or HB 213] is no different
than what is required in existing law for any other
defendant who is charged with misusing a prescription
drug? Answer: Yes. For example, this section basically
means that the state as part of its case does not have to
disprove that a person did not have a prescription for a
controlled substance that a person possessed - the person
has the burden to prove that their possession was lawful
as they were the lawful ultimate user of the controlled
substance by a prescription. The affirmative defense is
consistent with this approach.
REPRESENTATIVE KERTTULA indicated that there are two questions
there. "If you want an affirmative defense of a prescription and
you want an affirmative defense to come back, that is right. The
question and the answer are right. But it is the original burden
of proof you don't want to screw up of even possessing. What if
you say I didn't have the marijuana? That burden of proof rests
with the prosecution." She wondered if they kept that burden of
proof in the right way. That is critical and they don't want to
mess around with that.
REPRESENTATIVE CROFT stated that isn't relevant to Amendment 4. It
is to another amendment that has to do with switching between an
affirmative defense to defense.
MR. PAULEY agreed; strictly speaking it isn't relevant. He brought
it up because he felt it would add something to the discussion, but
it isn't an issue that needs to be resolved in order for the
committee to act on this.
REPRESENTATIVE CROFT asked whether they need Amendment 4; and, if
so, why?
MR. PAULEY explained that Amendment 4 grew out of complaints about
that particular paragraph of the bill. Upon review of that
language, it was realized it was not necessary.
CHAIRMAN KOTT said the short answer is no.
Number 1523
REPRESENTATIVE JAMES withdrew Amendment 4.
MR. FINKELSTEIN told the committee that this amendment came out of
Senator Leman's office to accommodate the concerns of patients.
The patient who is trying to get the affirmative offense has to
prove all of these points so if there is one point off the list, it
is one less thing they have to prove. He believed it is
significant because how could it ever be proven that the entire
amount of marijuana in their possession is more than for medical
use for the patient alone. There is no ability to prove that. Mr.
Guaneli from the Department of Law agreed that it is unnecessary.
REPRESENTATIVE JAMES made a motion to adopt Amendment 4. There
being no objection, it was so adopted.
REPRESENTATIVE ROKEBERG made a motion to adjourn. There being no
objection, it was so ordered.
ADJOURNMENT
Number 1634
CHAIRMAN KOTT adjourned the House Judiciary Standing Committee
meeting at 6:37 p.m.
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