04/04/2001 01:10 PM House JUD
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ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
April 4, 2001
1:10 p.m.
MEMBERS PRESENT
Representative Norman Rokeberg, Chair
Representative Jeannette James
Representative John Coghill
Representative Kevin Meyer
Representative Albert Kookesh
MEMBERS ABSENT
Representative Scott Ogan, Vice Chair
Representative Ethan Berkowitz
COMMITTEE CALENDAR
SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 111
"An Act relating to civil liability for injuries or death
resulting from livestock activities."
- MOVED CSSSHB 111(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 82
"An Act relating to agricultural facilities and operations as
private nuisances; and to disclosures in transfers of real
property located within one mile of an agricultural facility or
an agricultural operation."
- MOVED CSHB 82(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 193
"An Act relating to the primary election; and providing for an
effective date."
- MOVED CSHB 193(JUD) OUT OF COMMITTEE
SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 120
"An Act adopting the National Crime Prevention and Privacy
Compact; making criminal justice information available to
interested persons and criminal history record information
available to the public; making certain conforming amendments;
and providing for an effective date."
- HEARD AND HELD
PREVIOUS ACTION
BILL: HB 111
SHORT TITLE:CIVIL LIABILITY AND LIVESTOCK
SPONSOR(S): REPRESENTATIVE(S)COGHILL
Jrn-Date Jrn-Page Action
02/05/01 0241 (H) READ THE FIRST TIME -
REFERRALS
02/05/01 0241 (H) JUD
03/07/01 0501 (H) COSPONSOR(S): JAMES
03/09/01 0514 (H) SPONSOR SUBSTITUTE INTRODUCED
03/09/01 0514 (H) READ THE FIRST TIME -
REFERRALS
03/09/01 0514 (H) JUD
03/16/01 0635 (H) COSPONSOR(S): DYSON
03/22/01 0697 (H) COSPONSOR(S): SCALZI
03/28/01 0762 (H) COSPONSOR(S): LANCASTER
03/30/01 0793 (H) COSPONSOR(S): HUDSON
04/04/01 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 82
SHORT TITLE:FARM OPERATIONS:DISCLOSURE/NUISANCES
SPONSOR(S): REPRESENTATIVE(S)HARRIS
Jrn-Date Jrn-Page Action
01/19/01 0130 (H) READ THE FIRST TIME -
REFERRALS
01/19/01 0130 (H) JUD, RES
01/22/01 0147 (H) COSPONSOR(S): GREEN
02/07/01 0269 (H) COSPONSOR(S): MEYER
03/20/01 0670 (H) COSPONSOR(S): DYSON
04/04/01 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 193
SHORT TITLE:MODIFIED BLANKET PRIMARY ELECTION
SPONSOR(S): RLS BY REQUEST OF THE GOVERNOR
Jrn-Date Jrn-Page Action
03/19/01 0647 (H) READ THE FIRST TIME -
REFERRALS
03/19/01 0647 (H) STA, JUD, FIN
03/19/01 0647 (H) FN1: (GOV)
03/19/01 0647 (H) GOVERNOR'S TRANSMITTAL LETTER
04/03/01 (H) STA AT 8:00 AM CAPITOL 102
04/03/01 (H) Moved CSHB 193(STA) Out of
Committee
04/03/01 (H) MINUTE(STA)
04/04/01 0839 (H) STA RPT CS(STA) 3DP 2DNP 2NR
04/04/01 0839 (H) DP: JAMES, FATE, COGHILL;
DNP: CRAWFORD
04/04/01 0839 (H) HAYES; NR: WILSON, STEVENS
04/04/01 0839 (H) FN1: (GOV)
04/04/01 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 120
SHORT TITLE:DISCLOSURE OF CRIMINAL HISTORY RECORDS
SPONSOR(S): REPRESENTATIVE(S)COGHILL
Jrn-Date Jrn-Page Action
02/09/01 0281 (H) READ THE FIRST TIME -
REFERRALS
02/09/01 0281 (H) STA, JUD
03/14/01 0585 (H) SPONSOR SUBSTITUTE INTRODUCED
03/14/01 0585 (H) READ THE FIRST TIME -
REFERRALS
03/14/01 0585 (H) JUD
04/04/01 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
MIKE FORD, Attorney
Legislative Legal Counsel
Legislative Legal and Research Services
Legislative Affairs Agency
State Capitol
Terry Miller Building, Room 329
Juneau, Alaska 99801-1182
POSITION STATEMENT: Testified as the drafter of SSHB 111.
JACKIE HELLER
HC 60, PO Box 3208
Delta Junction, Alaska 99737
POSITION STATEMENT: Testified in support of SSHB 111.
ABIGAIL CROYLE
(No address provided)
Kodiak, Alaska 99615
POSITION STATEMENT: Testified on SSHB 111.
JIM DOUGLAS, Extension Agent
Cooperative Extension Service
University of Alaska Fairbanks (UAF)
9579 Meadow Lane
Juneau, Alaska 99801
POSITION STATEMENT: Testified in support SSHB 111.
KATE SCHOLLENBERG, President
Trail Blazers 4-H Club;
Peninsula Horseman's Association
Ninilchik Fair Association
25701 Sterling Highway
Anchor Point, Alaska 99556
POSITION STATEMENT: Testified in support of SSHB 111.
DARCY DAVIES, University of Alaska - Fairbanks
Fairbanks 4-H
1606 Roosevelt Street
Fairbanks, Alaska 99709
POSITION STATEMENT: Testified in support of SSHB 111.
ROBYN DAVIES, Co-leader
Tanana Whirlwinds 4-H Group
1606 Roosevelt Street
Fairbanks, Alaska 99709
POSITION STATEMENT: During discussion of SSHB 111, spoke on the
topics of negligence and the exclusion of the word "spectator."
SANDY SHACKLETT, Publisher
Alaska Horse Journal
310 North Harriette Street
Wasilla, Alaska 99654
POSITION STATEMENT: Testified in support of SSHB 111.
MAIRIIS KILCHER
40904 Seaside Farm
Homer, Alaska 99603
POSITION STATEMENT: Testified in support of SSHB 111.
EVERETT BUYARSKI, Juneau 4-H Club
PO Box 33077
Juneau, Alaska 99803
POSITION STATEMENT: Testified in support of SSHB 111.
DEE THORNELL, Doctor of Veterinary Medicine (DVM)
4-H Group Leader
1 Mile South Peger Road
Fairbanks, Alaska 99701
POSITION STATEMENT: Testified in support of SSHB 111.
PETER FELLMAN, Staff
to Representative John Harris
Alaska State Legislature
Capitol Building, Room 513
Juneau, Alaska 99801
POSITION STATEMENT: Testified on behalf of the sponsor of HB
82.
KATHRYN KURTZ, Attorney
Legislative Legal Counsel
Legal and Research Services
Legislative Affairs Agency
State Capitol
Terry Miller Building, Room 329
Juneau, Alaska 99801-1182
POSITION STATEMENT: Testified as the drafter of HB 193 on all
versions.
AVRUM GROSS, Chair
Primary Election Task Force
424 North Franklin Street
Juneau, Alaska 99801
POSITION STATEMENT: Testified on behalf of the Task Force on
all versions of HB 193, and responded to questions.
CHRISTIAN WARREN, Chairman
Election Committee
Libertarian Party
325 Eklutna Avenue, Number 3
Anchorage, Alaska 99504
POSITION STATEMENT: Testified on all versions of HB 193.
SARAH FELIX, Assistant Attorney General
Governmental Affairs Section
Civil Division (Juneau)
Department of Law
PO Box 110300
Juneau, Alaska 99811-0300
POSITION STATEMENT: On behalf of the department, asked
questions regarding Version J of HB 193, made comments, and
responded to questions.
GAIL FENUMIAI, Election Program Specialist
Division of Elections
Office of the Lieutenant Governor
PO Box 110017
Juneau, Alaska 99811-0017
POSITION STATEMENT: During discussion on proposed Amendment 2
to HB 193, Version J, provided information on the Accu-Vote
machine.
ACTION NARRATIVE
TAPE 01-55, SIDE A
Number 0001
CHAIR NORMAN ROKEBERG called the House Judiciary Standing
Committee meeting to order at 1:10 p.m. Representatives
Rokeberg, Coghill, Meyer, and Kookesh were present at the call
to order. Representative James arrived as the meeting was in
progress.
HB 111 - CIVIL LIABILITY AND LIVESTOCK
Number 0135
CHAIR ROKEBERG announced that the first order of business would
be SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 111, "An Act relating
to civil liability for injuries or death resulting from
livestock activities."
Number 0143
REPRESENTATIVE COGHILL, as the sponsor, explained that a 4-H
group from Fairbanks had brought the idea of SSHB 111 to him.
He noted that the sponsor substitute no longer included hunting
in the list of livestock activities on page 4 because that topic
would engender a completely different debate. He also explained
that SSHB 111 is primarily intended to help youngsters who are
participating in activities at fairs, petting zoos, and other
places where their livestock is being shown. For the occasional
time when an animal might injure someone, either by accident or
because that person was doing something foolish, SSHB 111 is
intended to limit the liability of those individuals who make
"reasonable efforts" to manage their livestock safely. He added
that individuals who handle their livestock improperly are still
liable for damage or injury.
REPRESENTATIVE COGHILL called attention to the definitions in
SSHB 111 of "inherent risks", "livestock professional", and
"participant", as well as to the list of livestock activities
encompassed in SSHB 111. He noted that "the findings and intent
section says simply that we want to encourage these types of
activities, and we want to make sure that they are done safely,
and [that] with reasonable effort, ... [those showing the
livestock] would be protected from ... liability.
CHAIR ROKEBERG expressed concern about the standards being
applied. He questioned whether the basic "wrongful act or
omissions" standard in current law was being applied, and he
wanted to know what level of negligence would provide for a
cause of action for personal injury or death. He called
attention to the exclusion for gross, reckless, and intentional
misconduct (on page 2, line 26), and said [that language] seemed
to imply that conduct less than gross misconduct would be
allowable.
REPRESENTATIVE COGHILL said he thought that [paragraph] (3) on
page 3 spoke to the description of what reasonable efforts would
[need to] be maintained in order to safely manage livestock
involved in a livestock activity.
CHAIR ROKEBERG countered that [paragraph (3)] does not speak to
the standards of liability or negligence, and those standards
need to be clarified.
REPRESENTATIVE COGHILL noted that Mike Ford was present and
could speak to those issues.
Number 0560
CHAIR ROKEBERG, on another point, asked if a spectator at a
rodeo would be excluded from bringing a cause of action.
REPRESENTATIVE JAMES, in response to Chair Rokeberg's comments
about standards, noted that [paragraphs] (1), (2), and (3) of
[subsection] (b), Section 3, apply to the statement that
[Section 3] "does not affect a civil action for damages
resulting from ...." She said she thought that [paragraph] (1)
contains "boilerplate" language, and that [paragraphs] (2) and
(3) contain more specific language. She surmised that [Section
3] was more extensive than what Chair Rokeberg was recognizing.
CHAIR ROKEBERG said he thought that it was the House Judiciary
Standing Committee's duty to make sure that those standards are
clear.
REPRESENTATIVE JAMES alluded to previous committee discussion
about inherent risk in relation to skiing and said she simply
wanted to provide any information that might be useful.
CHAIR ROKEBERG said this legislation has appeared in various
forms for a number of years and he has always supported the
concept. He added that he just wanted to make sure it was
properly put together. Chair Rokeberg asked Mr. Ford to talk
about the standards that are implicit in SSHB 111; whether or
not a spectator could have a cause of action; and if so, under
what circumstances.
Number 0708
MIKE FORD, Attorney, Legislative Legal Counsel, Legislative
Legal and Research Services, Legislative Affairs Agency, said
the question of standards is raised in [subsection] (b),
[paragraph] (1), on page 2. The effect of this provision is to
exclude the immunity given here from basically everything but
negligence. He went on to say:
We're only talking negligence here. We're not talking
about an act that's beyond that standard of
negligence, that gets into some gross, reckless, or
intentional misconduct. So, we've basically carved
out those things and said we're not going to deal with
those; we're only going to deal with those acts for
which you might be liable, and the only acts left are
negligent acts.
MR. FORD then addressed the issue of the spectator, and said
that there was no provision in SSHB 111 that provides the
spectator with special treatment. A spectator who is injured
has to meet the same criteria; if it's an inherent risk and not
"gross, reckless, or intentional" the spectator would not
recover [damages]. For example, there would be no recovery if
the spectator was watching and there was some kind of negligence
on the part of the horse handler.
CHAIR ROKEBERG observed that "misconduct" and "negligence" are
not synonymous, and asked Mr. Ford why he used the word
"misconduct" rather than "negligence" in drafting SSHB 111.
MR. FORD explained that "misconduct" is the "term of art" -
"intentional misconduct", for example.
CHAIR ROKEBERG said "gross misconduct" is used in only one other
statute in Alaska, which he himself authored. He said that the
"patient's bill of rights" pertained to gross misconduct as it
relates to a duty codified in law or regulation, and would then
be a matter of misconduct, not negligence, because [the terms]
are not synonymous.
MR. FORD said he was not sure he understood the point Chair
Rokeberg wished to make. He offered his belief that the purpose
of this section is similar to the skiing liability Act, which
says that if it's an inherent risk, the person doesn't recover
[damages].
Number 0944
CHAIR ROKEBERG referred to page 2, line 26, where the word
"misconduct" appears, and asked if it would be possible to
substitute the word "negligence".
MR. FORD said he did not think so, noting that the terms are not
synonymous. He clarified that if there was gross negligence,
there would be a cause of action. The exceptions to the rule
are gross negligence, or reckless, or intentional misconduct.
He said "reckless or intentional misconduct" is a term of art
used to describe reckless or intentional bad acts.
CHAIR ROKEBERG said he thought SSHB 111 needed to be clearer.
He said he thought SSHB 111 was implying that negligence per se
would not be enough to bring a cause of action.
MR. FORD said negligence per se is typically something that the
legislature creates, where there is liability for some typical
act. In this case, there is no negligence per se because it is
not illegal to do these things. Without SSHB 111, someone who
was injured would have to go through the normal process, and
would have to show that there was negligence or some worse act.
He added that SSHB 111 is an effort to "raise the bar" so that
simple negligence, as a result of an inherent risk, does not
provide for recovery.
CHAIR ROKEBERG related his understanding that Mr. Ford was
saying that "we" have a gross negligence standard allowing for a
cause of action.
MR. FORD replied yes.
CHAIR ROKEBERG remarked that he would have to be convinced of
that.
REPRESENTATIVE JAMES posed a situation in which an individual
was walking beside or riding an animal that was sometimes
spirited and sometimes not. She inquired as to what would
happen if the animal bolted and someone nearby was hurt. If
what occurred with the animal was outside the limits of control
of the individual, then the individual wouldn't be negligent.
However, Representative James said that if she were the person
who had been kicked or hurt in some way, she would take the
position that the individual would be negligent because the
individual couldn't manage their animal. She said that would
have to go to court and would be "a crap shoot" in regard to the
outcome. However, she added, [SSHB 111] says that if the
individual managing that animal was not negligent in any way,
and if it wasn't gross negligence, it would be exempt because it
was an inherent risk of that animal. Therefore, such a case
[under SSHB 111] would only proceed to court if gross negligence
could be proven, because that has a different level of findings.
CHAIR ROKEBERG reiterated his concern that in his opinion, gross
negligence is not included in the current drafting of the bill;
only gross misconduct is included. He related his belief that
there is a distinction between gross negligence and gross
misconduct. He specified that he is concerned with the level at
which the bar for bringing a cause of action will be
established.
Number 1261
JACKIE HELLER testified via teleconference, and informed the
committee that she is a horse owner who has participated in
horse activities all her life. Ms. Heller said that she
supports SSHB 111 because horses are unpredictable and are
sometimes beyond the control of the person managing the animal.
She said she [agreed] with [the concept] of limiting the civil
liability for people involved in [livestock] activities.
Number 1318
ABIGAIL CROYLE testified via teleconference, and informed the
committee that she is a horse owner. She said that many who
would like to use horses or livestock have difficulty in moving
their animals or allowing others to use [their animals] because
without SSHB 111, the animal owner can be sued if someone hurts
the animal or the animal hurts someone. Therefore, with the
passage of SSHB 111, [livestock owners] would be able to let
people use their horses without the fear of a lawsuit.
Number 1380
JIM DOUGLAS, Extension Agent, Cooperative Extension Service,
University of Alaska Fairbanks (UAF), testified via
teleconference, and informed the committee that he is the head
of the state 4-H program. This legislation is not just a civics
lesson for those in 4-H. Members of 4-H depend on their ability
to show livestock. These animals are a rarity for many
Alaskans, who, during a show, often want to be very close to the
animals. Therefore, it is difficult to convince people to
involve their animals in 4-H activities when animal owners
discover that they could wind up in the middle of a lawsuit.
This legislation will help protect livestock owners from people
who place themselves in a dangerous situation, and that is why
"we" are in favor of SSHB 111. Passage of SSHB 111 will help
build the 4-H program as well as encourage those who like to
sponsor and donate animals so that 4-H members can obtain
experience.
Number 1504
KATE SCHOLLENBERG, President, Trail Blazers 4-H Club, testified
via teleconference and specified that she is speaking on behalf
of her club, the Peninsula Horseman's Association, and the
Ninilchik Fair Association, all of which support [SSHB 111]
because it will eliminate most, if not all, of the fear of a
lawsuit when people lend their animals to organizations such as
4-H. Therefore, people will have less fear of getting involved,
and both the children and the general public will benefit from
the education gained [through livestock activities]. She urged
legislators to keep an open mind because the youth that SSHB 111
will affect will have on a large impact on Alaska's future.
Number 1554
DARCY DAVIES, University of Alaska Fairbanks (UAF); Fairbanks 4-
H, testified via teleconference. She informed the committee
that she is in the 10th grade at West Valley and that she had
met a few of the legislators when she visited Juneau with other
4-H members last week. Ms. Davies thanked everyone for meeting
with them and learning about the current UAF for Youth project.
Because the motto of 4-H is "Learn by doing," it was thought
that promoting SSHB 111 would be a good way to learn about
Alaska's government, particularly since SSHB 111 directly
impacts 4-H members and the 4-H program.
MS. DAVIES informed the committee that currently 44 other states
have a limited liability statute for at least horse activities.
The Oklahoma statute was used to help draft SSHB 111 because the
scope of the Oklahoma statute was not limited to horses only.
As part of the project, [4-H members] did presentations in the
community regarding the [4-H] project and SSHB 111. At these
meetings, no one expressed any concerns with the passage of SSHB
111. Horse owners feel that SSHB 111 would help make people
responsible for their own actions. With the passage of SSHB
111, the hope is that the inherent risk of livestock activities
will be recognized as the major cause of any accident. In
conclusion, Ms. Davies mentioned that [the 4-H] project has been
a great learning experience.
Number 1662
ROBYN DAVIES, Co-leader, Tanana Whirlwinds 4-H Group, testified
via teleconference, and mentioned that she is a member of many
of the horse groups around Fairbanks. Ms. Davies explained that
during the process [of creating SSHB 111], Jamo Parrish (ph),
University of Alaska - Fairbanks, spoke to the children [in the
4-H group] regarding the different levels of negligence. Mr.
Parrish explained that Alaska [statute] already covers the first
two levels, which means that [no liability is incurred in
practical terms] if an accident happens. However, current
statute doesn't cover negligence, gross negligence, reckless
negligence, or intentional misconduct. Therefore, it was
decided that negligence must be addressed in order for SSHB 111
to mean anything. She pointed out that some negligence is an
inherent risk with livestock activity. She posed a hypothetical
situation in which a kid is walking a steer as he talks with his
friends, and therefore the kid is not paying attention to his
surroundings, and someone quickly approaches the steer's rear
and is then kicked. She acknowledged that some would consider
that [the kid] was negligent, yet, in reality, there would be no
horse activities without negligence.
MS. ROBYN DAVIES pointed out that spectators also were excluded
[from bringing a cause of action for negligence] because
spectators often place themselves in a position to get hurt. If
the word "spectator" were used, she questioned how it would be
defined. Therefore, it was decided that if an individual
attends a rodeo, for example, that individual assumes some
responsibility for accidents that may occur.
Number 1781
SANDY SHACKLETT, Publisher, Alaska Horse Journal, testified via
teleconference. She described the Alaska Horse Journal as a
statewide monthly magazine that is distributed to approximately
5,000 people. She stated that she wanted to share some facts
and figures regarding the horse population in Alaska and some of
the horse activities that take place. She said that according
to the United States Equestrian Marketing Association, Alaska's
estimated total horse population in 1996 was 16,935 horses.
There was an average of 98 horses in 11 specific shows during
the 1999 show season, in the Matanuska-Susitna area alone. And
there are shows all over the state. According to a poll done by
the Horse Industry Alliance, one out of three people would like
to ride a horse. She went on to say, "A bill such as this would
help the horse industry as a whole to share their animals, their
enthusiasm, and these activities with others."
CHAIR ROKEBERG said he would appreciate it if Ms. Shacklett
could forward those statistics to the House Judiciary Standing
Committee.
Number 1843
MAIRIIS KILCHER testified via teleconference and said that she
supports SSHB 111 very strongly and that "it's time to have a
bill like this in Alaska." She explained that she owns a farm
in Homer and enjoys sharing it with visitors. She noted that
SSHB 111 would make it "less scary" to own animals, share
animals, and have people ride her animals. She mentioned that
she also owns cattle and other farm animals.
Number 1891
EVERETT BUYARSKI, Juneau 4-H Club, informed the committee that
he is a student at Juneau Douglas High School and is
representing specifically the large animal and horse club. He
reiterated that the 4-H club initially brought this bill forward
to Representative Coghill. The Juneau 4-H Club believes that
SSHB 111 will help them a lot, especially in Juneau, where there
are relatively few animals. He said that many owners worry
about sharing their animals with the 4-H Club due to liability
problems. The passage of SSHB 111 would reduce that worry and
allow owners to more comfortably share their animals [with the
4-H club]. It would also provide more opportunities for people
to learn about these animals, which many people want to do. He
referred to Mr. Douglas's testimony and indicated that SSHB 111
will assist animal owners as they deal with people who don't
understand that these animals are livestock, not pets, and that
the animals are not fully tame or domesticated. Passage of SSHB
111 will limit the liability of livestock owners from injuries
or damages caused by other people's actions, however good their
intentions might be.
Number 1981
DEE THORNELL, Doctor of Veterinary Medicine (DVM), 4-H Group
Leader, testified via teleconference. She explained that she
had been sued by somebody because of an incident that took place
at the Tanana Valley Fair in August of 1997. She described the
situation wherein she had been leading her horse into the arena
while it was being ridden by a member of her 4-H group, and a
member of the audience startled her horse - causing it to bolt -
by simultaneously shouting and slapping it on the hind quarters
in an attempt to get the rider's attention. The audience
member, who was wearing open-toed sandals at the time, then made
the claim that the horse had injured her foot, and proceeded to
bring suit against Ms. Thornell, the fairgrounds, and the 16-
year-old rider. Ms. Thornell reported that the case against her
had been dismissed but only after she had expended approximately
200 hours of her own time and $15,000 of university funding,
which was provided because she was a 4-H group leader.
MS. THORNELL, on another point, explained that currently,
veterinarians cannot let owners of large animals hold their own
animals while veterinary services are being performed because of
liability issues. The only recourse veterinarians have is to
bring along one of their own employees when treating large
animals. In conclusion, she noted that 44 other states already
had legislation similar to SSHB 111 in place, and she encouraged
the committee to pass SSHB 111 in order to limit liability for
livestock activities in Alaska.
CHAIR ROKEBERG remarked that it would be helpful if her
testimony could be submitted in writing as a formal part of the
bill package. He then closed the public hearing on SSHB 111.
REPRESENTATIVE COGHILL suggested inserting "negligence" after
"gross" on page 2, line 26.
CHAIR ROKEBERG noted that that insertion would cover his
concerns regarding a lack of clear negligence standards. He
added that from his research of the Alaska Statutes, neither was
there a "fully articulated misconduct standard." He restated
that he had only found one reference to the term "gross
misconduct" in statute.
Number 2271
REPRESENTATIVE COGHILL made a motion to adopt Amendment 1, as
follows:
Page 2, line 26:
Following "gross"
Insert: "negligence"
There being no objection, Amendment 1 was adopted.
REPRESENTATIVE COGHILL noted that even without [Amendment 1], he
thought that "we would have been safe because of number three,
as I said, that they would have to show a failure to keep
reasonable efforts, and to manage the activity safely." He said
he still thought that was a very strong standard.
CHAIR ROKEBERG remarked that [Amendment 1] enables an average
person reading the law to understand it. He said he objects to
a lot of Alaska's statutes because they are not clear to the
average person.
Number 2317
REPRESENTATIVE JAMES moved to report SSHB 111, as amended, out
of committee with individual recommendations and the
accompanying zero fiscal notes. There being no objection,
CSSSHB 111(JUD) was reported from the House Judiciary Standing
Committee.
HB 82 - FARM OPERATIONS:DISCLOSURE/NUISANCES
Number 2330
CHAIR ROKEBERG announced that the next order of business would
be HOUSE BILL NO. 82, "An Act relating to agricultural
facilities and operations as private nuisances; and to
disclosures in transfers of real property located within one
mile of an agricultural facility or an agricultural operation."
Number 2339
PETER FELLMAN, Staff to Representative John Harris, Alaska State
Legislature, testified on behalf of the sponsor of HB 82,
Representative Harris. He explained that HB 82 clarifies
existing statute; offers protection against nuisance lawsuits in
Alaska; allows for disclosure, which has stood up to the court's
test in New York; and requires that a soil conservation plan,
which shows that farms are operated in both a productive and
environmentally safe manner, be on file with the local soil and
water conservation district (SWCD). He added that by coupling
the disclosure provisions with the soil conservation plan, HB 82
will offer protection from nuisance lawsuits. He noted that the
Alaska Association of Realtors (AAR) has endorsed [HB 82],
although he did not have anything in writing to that effect.
Mr. Fellman added that in working with the ARR, [the sponsor had
changed] HB 82 so that disclosure, which falls under "Megan's
Law" relating to convicted sexual offenders, will be required by
the purchaser. [Mr. Fellman was referring to a proposed
committee substitute (CS) for HB 82, Version P, 22-LS0348\P,
Kurtz, 3/23/01, which had not yet been offered as a work draft.]
REPRESENTATIVE JAMES said that the realtors to whom she had
spoken to expressed satisfaction with the language currently in
HB 82.
CHAIR ROKEBERG said that inasmuch as he had drafted AS
34.70.050, he was very interested in the language that was to be
inserted [by Version P of HB 82]. He added that he had concerns
about the litany of items that had to be on a disclosure
statement, including odors, fumes, dust, smoke, burning,
vibrations, insects, rodents, operations of machinery including
aircraft, and other inconveniences. He said he thought that if
those items were listed in statute, then they would also have to
be recited on the [disclosure] statement.
MR. FELLMAN clarified that under Version P (page 3, line 24), it
is the person who is purchasing the property - the transferee -
who is responsible for determining whether an agricultural
facility/operation is in the vicinity. The disclosure statement
must simply notify the purchaser of this responsibility and
outline where such information is available.
TAPE 01-55, SIDE B
Number 2473
CHAIR ROKEBERG acknowledged that he now understood that the
disclosure [provision] applied to the purchaser, and also why
[that provision] fell under Megan's Law.
Number 2450
REPRESENTATIVE JAMES made a motion to adopt the proposed
committee substitute (CS) for HB 82, version 22-LS0348\P, Kurtz,
3/23/01, as a work draft. There being no objection, Version P
was before the committee.
MR. FELLMAN again clarified that Version P places the liability
on the purchaser to find out what the circumstances are as they
relate to any agricultural facilities/operations being in the
vicinity of property that he/she intends to purchase.
CHAIR ROKEBERG again noted that he understood [the disclosure
provision] to mean that if any of the aforementioned items
relating to an agricultural facility/operation existed in the
vicinity, it was up to the buyer to find them. Chair Rokeberg
referred to the term "one mile" in the title. He asked if that
was to be the definition of "vicinity", or if it was a mistake.
MR. FELLMAN explained that in a prior draft of the proposed CS,
"one mile" was used as a part of the description pertaining to
disclosure.
CHAIR ROKEBERG asked if the title needed to be amended, or if
the standard of the vicinity of the property had been changed
from one mile.
REPRESENTATIVE JAMES commented that she did not think [the
standard had been changed].
CHAIR ROKEBERG asked if there was a definition [included in
Version P] that he was unaware of. He asked why there had to be
a one-mile standard if the burden was on the buyer. The buyer
could object; whether [the agricultural facility's/operation's
conditions] were within 100 yards or 5 miles, it would still be
[his or her] own problem. He clarified that he was referring to
Section 5 regarding the applicability of the uncodified law. He
added that while [the use of the term] "one mile" did establish
a standard, he did not think it was necessary.
MR. FELLMAN acknowledged that the standard of one mile was to be
used when the burden of disclosure was on the seller.
CHAIR ROKEBERG said he would prefer to take out Section 5, and
modify the title.
Number 2299
REPRESENTATIVE JAMES asked if there were any other references in
Version P regarding having the soil conservation plan approved
by the SWCD.
MR. FELLMAN responded yes, and noted that another reference was
located on page 2.
CHAIR ROKEBERG remarked that the title did not seem to be
consistent. He asked if [the term] "agricultural facility" was
adequate to describe Section 1.
MR. FELLMAN said [Version P] contained definitions of
agricultural facilities and agricultural operations.
REPRESENTATIVE JAMES requested clarification regarding whether
the one-mile [standard] applied to [agricultural
facilities/operations] located less than one mile away, more
than one mile away, or just someplace around the [one-mile
range]. She offered that it was possible that someone might be
unhappy with [agricultural facilities/operations] that were
located more than one mile away.
REPRESENTATIVE MEYER commented that there had to be some limits.
He noted that the term "one mile" was also used on page 4, [line
2], and, therefore, if it was used in [the body of] the bill,
then it also needed to be in the title.
REPRESENTATIVE JAMES agreed that there should be some limit,
depending on what that limit was. She clarified that the
language on page 4 was simply applicability language relating to
uncodified law, and therefore [the term] did not need to be
included in the title because it was not actually in the bill.
CHAIR ROKEBERG suggested leaving [the term of "one mile"] in the
applicability [section], and taking it out of the title.
MR. FELLMAN reminded the committee that the parameter of one
mile was set when the burden of disclosure was on the seller;
now that the burden of disclosure is on the buyer, that one-mile
parameter is no longer applicable. He added that regardless of
whether the agricultural facility/operation is 15 feet or 2
miles away, it is the buyer's choice whether to continue with
the real estate transaction.
REPRESENTATIVE JAMES commented that it would be better to remove
the one-mile [parameter] because the responsibility of
identifying any existing [agricultural facility/operation] is on
the purchaser.
Number 2137
CHAIR ROKEBERG made a motion to adopt Amendment 1, as follows:
Page 1, line 2
Delete: "within one mile"
Insert: "in the vicinity"
REPRESENTATIVE JAMES said she thought that Amendment 1 should
also apply to [Section 5, page 4, line 2].
Number 2115
CHAIR ROKEBERG expressed his willingness to include that
suggestion, and restated his motion to adopt Amendment 1, as
follows:
Page 1, line 2
Delete: "within one mile"
Insert: "in the vicinity"
Page 4, line 2
Delete: "within one mile"
Insert: "in the vicinity"
There being no objection, Amendment 1 was adopted.
Number 2088
REPRESENTATIVE JAMES moved to report CSHB 82, version 22-
LS0348\P, Kurtz, 3/23/01, as amended, out of committee with
individual recommendations and the accompanying fiscal notes.
There being no objection, CSHB 82(JUD) was reported from the
House Judiciary Standing Committee.
CHAIR ROKEBERG called an at-ease from 2:07 p.m. to 2:13 p.m.
HB 193 - MODIFIED BLANKET PRIMARY ELECTION
Number 2078
CHAIR ROKEBERG announced that the next order of business before
the committee would be HOUSE BILL NO. 193, "An Act relating to
the primary election; and providing for an effective date."
[Before the committee was CSHB 193(STA).]
CHAIR ROKEBERG said he had prepared a proposed committee
substitute (CS), version 22-GH1089\J, Kurtz, 4/4/01 (Version J),
which has substantive differences, and that Representative
Kookesh had prepared two amendments.
REPRESENTATIVE COGHILL spoke in favor of CSHB 193(STA).
[Although HB 193 was originally sponsored by the House Rules
Standing Committee by request of the Governor, Representative
Coghill had done extensive work in creating CSHB 193(STA), and
had therefore provided additional background material for
members packets.] He called the committee's attention to page
2, Section 3, [subsections] (a) and (b). He explained that
under CSHB 193(STA), primary elections will be held through the
parties. The parties will each have a ballot, and if they
choose to allow anybody in addition to party members to vote on
their ballot, then they can, but they must submit their bylaws
in a timely fashion. He described CSHB 193(STA) as very similar
to what the governor had produced [with the original HB 193]
except for the following:
They presumed that they would have to exclude people,
and then they would have an open ballot, which I
maintain is going in the wrong direction, and so I
said ... I think the parties should be able to choose
their candidate and ... [each party's primary would be
presumed closed to nonmembers] until such time as they
chose to open it to allow other people; and I think
that's being more consistent with what the [U.S.]
Supreme Court [ruled].
REPRESENTATIVE COGHILL said he had a few quotations he would
like to put on the record. He noted that he believed the
Supreme Court was trying to give the parties the primary
responsibility for selecting their candidates and also to give
them the choice of who is able to vote within their primary
elections. He said he thought that CSHB 193(STA) would align
best with that thinking.
Number 1936
REPRESENTATIVE COGHILL paraphrased from California Democratic
Party v. Jones [Syllabus]:
In no area is the political association's right to
exclude more important than in its candidate-selection
process. That process often determines the party's
positions on significant public policy issues, and it
is the nominee who is the party's ambassador charged
with winning the general electorate over to its views.
REPRESENTATIVE COGHILL also paraphrased from California
Democratic Party v. Jones [Opinion of the Court]:
There is simply no substitute for a party's selecting
its own candidates.
REPRESENTATIVE COGHILL explained that with CSHB 193(STA), he was
trying to say that parties are assumed to have that right of
association. If they choose to invite others in, then they can
do so by way of petition. Whether or not to include others
would be a decision within the party. He said:
I think it would be wrong for us as a state to say you
must have an open ballot, and then exclude people. I
think it would be going directly against what the
Supreme Court said on the right to that free
association, [because] we would be forcing them to
open, rather than close, their primary. But if we
allowed them the legal opportunity to open their
primary election, then we're well within our limits,
and the party then makes that decision. And I think
we should let it rest at the party [level].
REPRESENTATIVE COGHILL noted that CSHB 193(STA) included the
September 1 deadline recommended by the [Primary Election Task
Force ("Task Force")]. He summarized the main points of CSHB
193(STA) as: normally closed [party primaries], a ballot for
each party, and inclusion of those not registered with that
party. He said he thought that CSHB 193(STA) was good policy
and in keeping with what the U.S. Supreme Court said. He quoted
from California Democratic Party v. Jones [Opinion of the
Court]:
... the Court has recognized that the First Amendment
protects "the freedom to join together in furtherance
of common political beliefs," [Tashjian, supra, at
214-215], which "necessarily presupposes the freedom
to identify the people who constitute the association,
and to limit the association to those people only" [La
Follette, 450 U.S., at 122].
Number 1805
REPRESENTATIVE COGHILL said he thought it would be contrary to
that [statement from the court opinion] for the state to force
an open [primary] ballot upon [the political parties]. He also
paraphrased from California Democratic Party v. Jones [Opinion
of the Court]:
... a corollary of the right to association is the
right not to associate.
Thus, if parties are given the right to include people, it
follows that parties also have the right to stay closed. He
again paraphrased from California Democratic Party v. Jones
[Opinion of the Court]:
There is simply no substitute for a party's selecting
its own candidates.
REPRESENTATIVE COGHILL said that the whole idea of a primary
election is to let parties put forward their own candidates. He
acknowledged that in Alaska, many people have chosen not to
affiliate with a party, but he said he thought that was partly
because the state allows [undeclared and nonpartisan voters] to
participate in determining a party's nominee. "We've got the
cart before the horse here in Alaska," he said. And while he
acknowledged that if parties stay closed, members would become
"purists," he said he believed that at that point, the parties
would be enlivened and thus bring forth a better mix [of
candidates] for Alaska.
Number 1737
REPRESENTATIVE COGHILL recommended reading the U.S. Supreme
Court ruling that struck down California's Proposition 198,
which changed California's partisan primary from a closed
primary to a blanket primary. The CSHB 193(STA) version is more
consistent with [the U.S. Supreme Court] decision than is the
governor's original HB 193, he said.
CHAIR ROKEBERG clarified that Version J actually agrees in very
large part with Representative Coghill in terms of approach,
with one major exception. That exception is found in Section 2;
Version J would have an "opt out" provision for nonpartisan and
undeclared voters, whereas CSHB 193(STA) has an "opt in"
provision. He said at issue was the default mechanism. He said
he believes that all political parties should, via statute, be
able to invite the undeclared and independent voters of the
state to participate in their primary without taking an active
step. By contrast, CSHB 193(STA) requires that a party take an
active step to invite people in. "I think we should be
inclusive to start with and not exclusive, and that's the
distinction," he concluded.
REPRESENTATIVE JAMES agreed with Representative Coghill. She
summarized his position as: the U.S. Supreme Court decision
says parties have a right to choose who can vote for them, so
the parties should have that choice and make that choice. By
contrast, she said, Chair Rokeberg is saying that the
legislature is going to make the choice that every voter is
included in the primary, and then the parties have to take
action if they do not want everyone included. She said she
thought the latter course was automatically making a choice for
the parties.
Number 1574
CHAIR ROKEBERG disagreed with that analysis. "I think it still
gives the party the right to make the choice," he said. "It's
just where we start from, and what is the default ...." He
suggested that the parties in Alaska should be forced to take
overt action to exclude people, rather than to take overt action
to include them.
REPRESENTATIVE JAMES responded, "I believe that the Supreme
Court decision said that we as ... parties have the right to
choose our own candidates. If we want to let other people in,
we have a right to do that. You're taking the other approach
that ... a state ...[has] a right to include people and so
therefore ... [the parties] have to do something to exclude
them." She offered that her interpretation of the U.S. Supreme
Court's decision was that [parties] had to so something if
[parties] wanted to include more than [party members].
REPRESENTATIVE COGHILL, to clarify a point, quoted from
California Democratic Party v. Jones, Kennedy, J., concurring:
A political party might be better served by allowing
blanket primaries as a means of nominating candidates
with a broader appeal. Under the First Amendment's
guarantee of speech through free association, however,
this is an issue for the party to resolve, not for the
State.
Number 1472
KATHRYN KURTZ, Attorney, Legislative Legal Counsel, Legislative
Legal and Research Services, Legislative Affairs Agency, said
she thinks both versions solve the big problem that is
identified in the Jones decision, which is that parties cannot
be forced to associate with people who don't share the parties'
political beliefs. These two drafts take different approaches
to getting parties out of that situation of forced association,
but she does not think the Supreme Court's decision prescribes a
particular solution to the problem. "I think you have options,"
she said. "I think both of these address the constitutional
problem that we currently have in the statute."
REPRESENTATIVE COGHILL said the difference between prescription
and direction is obvious.
REPRESENTATIVE KOOKESH asked Ms. Kurtz to clarify what she meant
by the two different versions.
MS. KURTZ said the ones she was talking about were CSHB 193(STA)
and [Version J]. The governor's [original HB 193] takes yet a
different approach. She said she thought that all three
[versions] provide ways in which a party can choose not to
associate with people who don't share its political beliefs, and
all three of them get at the major problem.
REPRESENTATIVE KOOKESH said he had brought it up because Ms.
Kurtz had not mentioned the governor's [original HB 193] and he
wanted to make sure that that was included in the group of
alternatives she thought were acceptable.
Number 1313
AVRUM GROSS, Chair, Primary Election Task Force ("Task Force"),
explained that the Task Force was asked by the Lieutenant
Governor to give the legislature something to work on. The Task
Force was made up of all the living lieutenant governors and
former attorneys general. The intent was to reduce some of the
debate. He also explained that the Task Force had tried to
adhere as closely as possible to present law, which provides for
a blanket primary. In a blanket primary, all of the candidates
are listed on the ballot and anyone can vote for anyone
regardless of party affiliation. The U.S. Supreme Court in the
Jones case decided that a state that imposed that kind of a
ballot on parties was interfering with political parties' rights
of association. The court said that if a political party wished
to limit the people who could participate in its primary, it had
the right to do so.
MR. GROSS said the first reason [the Task Force] started with
the blanket primary was because that was in Alaska law, and the
Task Force was trying to vary it as little as possible. The
second reason is a public policy reason. It's one thing for
parties to close the ballot; it's another thing for the state,
which has set up a primary election system as the means of
producing candidates for a general election, to close the
system. If parties decide that they want to exclude people from
voting in their primaries, they have every right to do that.
But, he said, it seemed to him that it would require some sort
of an affirmative act by the party, rather than the state's
saying nobody but party members can participate in a primary
election.
Number 1135
MR. GROSS said that is the fundamental difference between CSHB
193(STA) and the recommendations of the Task Force. Both get to
the same point, but [the original HB 193] ensures that if a
party takes no action, the maximum number of people may
participate, thereby encouraging maximum voter participation in
elections. Mr. Gross observed that there doesn't seem to be
much discussion over the deadlines for parties to notify the
lieutenant governor of their choices, or for individuals to
indicate their party affiliation.
REPRESENTATIVE JAMES said she would prefer a system in which the
political parties had to say, "I want to include," or "I want to
exclude." Beyond that, she would rather not have primaries at
all and just leave it to the parties to figure out how they are
going to choose their candidates; however, she didn't think that
option was available. She asked Mr. Gross to comment on her
position.
MR. GROSS noted that in the only known instance, a major party
(the Republican Party) last year, by allowing only party members
and independents to participate in its primary, had not shown
any reluctance to exclude people. The Task Force had heard
testimony from all of the political parties, and almost every
one of them made it clear that they would choose to exclude
members of other parties, particularly if those parties excluded
them. Small parties were inclined to let only party members
participate because they were afraid of being completely
overwhelmed. However, he said, no one who testified before the
Task Force raised the argument that Representative Coghill is
making - which is not to say that it is not a good argument,
simply that it was not raised - that having to rule out some
people would put the parties under some pressure. Mr. Gross
said he had seen no evidence to indicate that anyone would be
uncomfortable or would find it difficult to "opt out." That
being the case, the Task Force decided to leave the primaries
open and let the parties limit participation as they saw fit.
Number 0839
REPRESENTATIVE MEYER noted that voter turnout in last summer's
primary election was "pathetic," and said people had told him,
"It's because of your [Republican] party, Kevin, that we didn't
participate." He asked Mr. Gross which, version [CSHB 193(STA)
or Version J] would maximize voter participation.
MR. GROSS replied:
Let me answer that by suggesting there are three
levels. The first [level] was the original [HB 193],
... which started off with everybody having a blanket
primary ballot, and the parties reducing it as they
saw fit. The second level is [Version J], in which
... party candidates run on a ballot for which members
of that party and independents may vote ... (unless
parties open it further ....) The third level down is
... CSHB 193(STA), which says that the only people who
can vote in primary elections for a party's candidates
are ... registered members [of that party], and then
the parties can open it up beyond that ... [to
independents, or beyond, to members of other
parties].... All [versions] satisfy the Jones case
because they allow the parties to make decisions ....
The question [is] of whether parties have to take
affirmative actions to open, or close.
REPRESENTATIVE MEYER asked if [the procedure outlined in CSHB
193(STA)] was the same as what occurred last summer.
MR. GROSS said no. Last summer, Independents and Republicans
were allowed to vote in the Republican primary. The CSHB
193(STA) version says that only party members would get that
party's ballot automatically, and then the party would have to
affirmatively act to open it up to Independents.
CHAIR ROKEBERG pointed out that both [CSHB 193(STA) and Version
J] would differ from last year's primary in that there would not
be an open or "other" ballot; there would just be a party
ballot.
MR. GROSS said the Task Force also had been concerned about last
year's voter participation's being so dismal, "and I think
that's another thing that motivated us to start with a blanket
primary."
REPRESENTATIVE COGHILL noted that there were several
circumstances around the last primary that could have
contributed to the dismal turnout. He mentioned the emergency
regulations, a great deal of press coverage, a court case, and
many uncontested races, saying there were too many dynamics
involved to interpret the cause.
Number 0588
REPRESENTATIVE JAMES said although she believes there should not
be primary elections for all races, there is an entirely
different dynamic operating in the gubernatorial race. "You
have a statewide vote and a limited amount of time for those
candidates to get around to the entire state to be chosen, and
so if you were to have any other kind of a system such as a
convention or a caucus (which is the one I would prefer), you'd
never be able to get a good feel, it would be easy to stack it,"
she said. She asked if it would be legal to have primaries just
for gubernatorial candidates.
MR. GROSS said he guessed [the state] probably could do that.
REPRESENTATIVE JAMES continued, "So, we'd only be having a
primary every four years."
MR. GROSS said the reason the Task Force tried to stick as close
as it could to existing law was because everybody has a
different view about how to nominate candidates. In recognition
of that and the fact that there is an election coming up next
year, the Task Force was trying to narrow the choices. But it
would be possible to do an infinite variety of things as long as
they were reasonable and fair to all candidates.
REPRESENTATIVE JAMES said her experience indicates that
intensive efforts within a precinct will get more people out to
vote, and that is what caucuses would do.
CHAIR ROKEBERG asked Mr. Gross to take off his "Task Force hat"
and give his personal opinion as a long-time observer of the
Alaskan political milieu.
MR. GROSS said:
I was perfectly content with the blanket primary. I
realize that there are people who feel quite strongly
that the parties were not nominating people who were
pure enough for them, ... but I always could tell the
difference. It seemed to me that the Republicans
nominated people [whom] I could pretty well identify
as Republicans, and the Democrats always seemed to
nominate the people [whom] I could reasonably identify
as Democrats, and whereas I may have disagreed with
the voters' choice from time to time, I thought the
system worked reasonably well in terms of getting
different views in front of the voters. So [I think]
a lot of the fears that people have ... about this are
exaggerated. So to the extent that the Supreme Court
ruled that parties could have a greater control over
the election process than they had had in the past -
because this is ... a state election process we're
talking about ... - I believe we should recognize [the
U.S. Supreme Court ruling], ... but at the same time,
I would not vary the existing system any more than we
had to. That's my own personal view.
Number 0264
CHRISTIAN WARREN, Chairman, Election Committee, Libertarian
Party, testified by teleconference. He agreed with
Representative Coghill that the open ballot is going in the
wrong direction. He also agreed that the salient point is that
the parties have the right to exclude. He asked if the [Alaska
State] Constitution mandates a primary, and asked the committee
to consider that Alaska was recognized as a state through the
agency of a constitutional convention. Mr. Warren said the
mainline parties select their presidential aspirants through a
straw poll, going from caucus to state convention, and selecting
candidates via convention is a faithful application of the
principles of republican government and follows Mr. Gross's
advice about adhering as closely as possible to present law.
Mr. Warren also agreed with Representative James about
eliminating primaries.
MR. WARREN noted that Washington State is in a similar dilemma
is attempting to restructure its primaries, and he also noted a
recent Associated Press story reporting that Washington's House
Select Committee on Elections had written a bill providing for
state conventions for major parties. At those conventions,
endorsements would be made for partisan offices, and the
endorsed candidates' names placed on the ballot automatically,
with no need for declaration. He spoke in favor of choosing
candidates through conventions, with participation limited to
party members only, saying he thinks that upholds the principles
of the Jones decision and is congruent with republican
government.
TAPE 01-56, SIDE A
Number 0001
CHAIR ROKEBERG asked Mr. Warren if he understood the proposed
CS, Version J.
MR. WARREN explained that he was working from the premise that
the U.S. Supreme Court decision was not a prescriptive
[solution] but a proscriptive [solution], with the intention
being to limit the interference of the state. He said that he
thought the place to start was with the principle that parties
have the right to exclude, and then take it from there.
CHAIR ROKEBERG responded that there was no question that either
of the alternatives being discussed provides that right.
MR. WARREN countered that the question was one of the starting
point. One alternative assumes that the parties are active
participants in their own affairs, and that they can take it
upon themselves to find out what suits them best. The other
alternative assumes that [the parties] are passive agents that
need to be directed by a "higher source," because [the parties]
are in flux and need intermittent, if not constant, intervention
by the state to provide guidance in their decisions. He added
that [the Libertarian Party] thought the latter was a
paternalistic way of viewing the situation.
CHAIR ROKEBERG asked Mr. Warren if he was an official of the
Libertarian Party.
MR. WARREN explained that he was chair of the election
committee, and that [any solution] that is worked out is of
great interest to [the Libertarian Party]. He also explained
that he was speaking as a representative of the [the
Libertarian] Party; the executive committee had instructed him
to attempt to convince [the House Judiciary Standing Committee]
of the desirability of having caucuses and conventions in lieu
of primaries. He added that because of the special rules
regarding the election of the governor, he would accept the
proposal voiced by Representative James to have a primary every
four years exclusively for governor, and the rest of the time
candidates could be managed through a convention. Mr. Warren
concluded his remarks with the following observation: although
Mr. Gross argued that his approach for blanket primaries would
encourage greater [voter] turnout, that rational was explicitly
rejected by the [U.S. Supreme] Court, which said that neither in
the interest of privacy, increased turnout, greater choice,
greater fairness, voter alienation, expansion beyond partisan
thresholds, nor better representation was there a valid rational
for blanket primaries.
Number 0355
SARAH FELIX, Assistant Attorney General, Governmental Affairs
Section, Civil Division (Juneau), Department of Law (DOL), noted
that she had just received Version J. She said she wondered if
the committee - via Version J - intended that the "nominating
petition candidates" (the candidates who are not affiliated with
a political party) would appear on the primary ballot of the
political parties. She added that she did not see that issue
addressed in Version J, and she needed to know if that was the
intent in order to implement that type of provision. She noted
that under current law, nominating petition candidates appear on
the primary election ballot.
CHAIR ROKEBERG said that if Ms. Felix meant individuals who file
for office as nonpartisan or undeclared candidates, he did not
intend for the names of those individuals to appear if they did
not "draw a party."
REPRESENTATIVE JAMES added that she did not see any reason [to
have those names appear].
REPRESENTATIVE COGHILL asked if, historically, nonpartisan
candidates have appeared on primary [ballots].
MS. FELIX responded that this had occurred, and was in fact
required by existing law.
CHAIR ROKEBERG commented that he thought that same question
should be applicable to both Version J and CSHB 193(STA).
MS. FELIX said that she had assumed from her reading of [CSHB
193(STA)] that those candidates would appear on the ballots
provided for in that bill version.
REPRESENTATIVE COGHILL added that he thought [CSHB 193(STA)] was
very clear; those names would not appear unless included in a
partisan ballot.
MS. FELIX said it seemed to her that [CSHB 193(STA)] included a
provision to place those names on the ballot, and that [Version
J] seemed different to her in that it precluded placing those
names on the ballot. [She referenced language in Version J,
Section 4, page 3, lines 6-7, which is identical to language in
CSHB 193(STA), Section 4, page 2, line 31, and page 3, line 1.]
She added that it was a technical point that she thought could
be fixed.
Number 0560
MS. KURTZ agreed with Ms. Felix that that point could be fixed,
and she added that it should be fixed for clarity.
REPRESENTATIVE JAMES reiterated that she did not see any reason
to have the [names of nominating petition candidates] on the
primary ballot.
REPRESENTATIVE KOOKESH offered that the suggestion was to
clarify in the legislation whether those names would be
included.
REPRESENTATIVE COGHILL said he agreed that it should be
clarified that those names would not be included on the ballot.
He paraphrased again from [California Democratic Party v. Jones,
Opinion of the Court]:
The voter who feels himself disenfranchised should
simply join the party. That may put him to a hard
choice, but it is not a state-imposed restriction upon
his freedom of association, whereas compelling party
members to accept his selection of their nominee is a
state-imposed restriction upon theirs.
He added that he thought the parties should have the right to
say [who is on their ballots], and it is wrong [for the state]
to impose any restrictions upon parties unless those
restrictions are self-imposed.
Number 0698
CHAIR ROKEBERG announced that public testimony was closed.
After noting that Representative Kookesh had two amendments,
Chair Rokeberg inquired if both amendments were applicable to
Version J.
REPRESENTATIVE KOOKESH said that he thought they were.
REPRESENTATIVE JAMES noted that the committee should decide
whether to adopt Version J as a work draft before taking up any
amendments.
Number 0772
CHAIR ROKEBERG made a motion to adopt the proposed CS for HB
193, version 22-GH1089\J, Kurtz, 4/4/01, as a work draft.
Number 0786
REPRESENTATIVE COGHILL objected. He said that in his view,
Version J went in the wrong direction. He added that he thought
the committee should go in the direction of having parties allow
the inclusion of other candidates on their primary ballots via
an affirmative action. He opined that to do otherwise would be
bad political policy, bad public policy, and bad legal policy,
and would go in the wrong direction from the [U.S.] Supreme
Court ruling.
REPRESENTATIVE JAMES added that while she agreed with
Representative Coghill, she could accept either Version J or
CSHB 193(STA), but would not accept the original HB 193.
CHAIR ROKEBERG, in defense of Version J, suggested that the poor
turnout in last year's primary election was a direct result of
the [U.S. Supreme Court decision] that raised this particular
issue. Speaking as a candidate in the 1992 primary election, he
surmised that the vast majority of people in the state resented
closure of the primary. He added that as a new candidate he was
reluctant to knock on many doors because of poor reception due
to the closure of the primary. He also said that he thought the
"body politic" of Alaska rejected the concept [of closed
primaries]. He noted that he was putting himself on the side of
the Primary Election Task Force by offering [with Version J] a
position of openness as the default with regard to primary
election ballots. He said that because he believed that both
case law and the U.S. Supreme Court allowed it, he wanted
primary ballots to be inclusive for nonpartisan and undeclared
voters, which make up in excess of 50 percent of registered
Alaskan voters.
REPRESENTATIVE JAMES said she understood Chair Rokeberg's
position on that issue and she agreed that that was the attitude
of the public. She suggested, however, "If that's a direction
we want to go in, then maybe we should file as 'N's or use our
'I's and let all those people support us, that are in our
group."
CHAIR ROKEBERG noted further that both Version J and CSHB
193(STA) allow the party to be completely exclusive. The nuance
is the point at which exclusion starts. He said he did not
disagree with the opinion of either the [U.S. Supreme] Court,
the Republican Party, or most other political parties, that
parties shall have the right to exclude if they so desire; both
Version J and CSHB 193(STA) embody the right to exclude.
Number 1045
REPRESENTATIVE MEYER commented that he agreed with the
statements made by Chair Rokeberg. He added that during his own
primary race, many undeclared [voters], Independents, and
conservative Democrats would have voted for him if not for the
closed primary. He also said that with so many Independents and
undeclared [voters] in the state (and certainly in his
district), there was a need for a "user friendly" system.
Further, he said that he thought it would be easier for the
parties to adjust rather than ask the voters to adjust to the
parties.
REPRESENTATIVE COGHILL concluded that [Version J] would force
"inclusion" on the party - that is, the party would be presumed
open - unless the party specifically chooses to exclude. He
opined that that was backward; he said that instead, he wanted
to be able to say to a party that it had a right to be "purist"
if it wished, or to be inclusive if so stated in the party's
rules. With Version J, the state would be compelling a party to
include voters who had not had anything to do with building that
party.
CHAIR ROKEBERG declared, "Absolutely not. I disagree with you
entirely. The party has every right to close the primary under
both versions."
REPRESENTATIVE JAMES called for the question.
Number 1170
A roll call vote was taken. Representatives Kookesh, Meyer, and
Rokeberg voted for the adoption of proposed CS for HB 193,
version 22-GH1089\J, Kurtz, 4/4/01, as a work draft.
Representatives James and Coghill voted against it. Therefore,
Version J was adopted as a work draft by a vote of 3-2.
Number 1188
REPRESENTATIVE KOOKESH made a motion to adopt Amendment 1,
which, after being altered to conform to Version J, read as
follows [original punctuation provided]:
Page 3, line 3,
Add a new subsection "(d) If a political party's
bylaws do not permit voters not registered with a
political party or registered with another political
party to participate in that political party's primary
ballot, all costs incurred by the state to administer
that political party's primary election shall be
reimbursed by that political party"
REPRESENTATIVE KOOKESH explained that while he suspected that
Amendment 1 would not pass, he wanted to have it on record. He
went on to say, "There is only, in reality, one political party
[the Republican Party] that is asking for a closed primary in
the state; I have not seen anybody else step up and ask for one.
And it is my opinion that if you want a closed primary, then you
ought to pay for it." He also noted that in this legislature,
many individuals have said that costs to the state will continue
to be cut; thus, when looking at [the issue] of a closed
primary, which is only being requested by one political party,
the cost alone (last year's closed primary cost $270,000) would
cover the cost of 4.5 Village Public Safety Officers (VPSOs) in
rural Alaska. He said his intention in offering Amendment 1 was
to have on record his recognition that funds for a closed
primary could be better spent on other purposes (such as VPSOs).
Number 1320
REPRESENTATIVE JAMES objected.
Number 1375
A roll call vote was taken. Representative Kookesh voted for
Amendment 1. Representatives James, Coghill, Meyer, and
Rokeberg voted against it. Therefore, Amendment 1 failed by a
vote of 1-4.
Number 1390
REPRESENTATIVE KOOKESH made a motion to adopt Amendment 2,
which, after being altered to conform to Version J, read as
follows:
Page 3, line 12
Delete "not"
Page 3, line 12, following "writing"
Delete "or pasting in"
Number 1392
REPRESENTATIVE JAMES objected.
REPRESENTATIVE KOOKESH explained that the reason for deleting
"not" was because he would like the ability to have write-in
blanks for the primary election, and the deletion of "or pasting
in" was in recognition that pasting names on a ballot would have
adverse effects on the "Accu-Vote" machine.
Number 1448
GAIL FENUMIAI, Election Program Specialist, Division of
Elections, Office of the Lieutenant Governor, confirmed that
sticking or pasting names on the ballot would gum up the "reader
heads" of the Accu-Vote machine.
REPRESENTATIVE KOOKESH further explained that Version J
currently says, "Blank spaces may not be provided", and
Amendment 2 would allow names to be written (or stamped) in,
although not pasted in, on the ballot.
REPRESENTATIVE MEYER asked Chair Rokeberg why blank spaces were
precluded from ballots in Version J.
CHAIR ROKEBERG suggested directing the question to
Representative Coghill because that language in Version J was
taken directly from CSHB 193(STA) [which, in turn, was taken
from HB 193].
MS. KURTZ explained that current statutes do not allow write-in
names on ballots in the primary election, just in the general
election.
REPRESENTATIVE JAMES asked if it says somewhere else in the
election laws that write-in [candidates] are not allowed in
primaries.
MS. KURTZ said she was not sure if it appears elsewhere or only
in the section that is being repealed and re-enacted by [Version
J]. It is complicated because there are a lot of references to
write-ins throughout the statutes, so she did not want to answer
off the top of her head. "The way this is would maintain the
status quo on write-ins," she said.
Number 1615
REPRESENTATIVE JAMES said she thought the only way a person can
get on the primary ballot now is by filing as a party member or
coming forward with a petition signed by a certain number of
voters. The latter route is only for non-party members. But
for the general election, she said she thought anyone, including
a party member, can get on the ballot by petition.
MS. KURTZ said currently, if a person qualifies by petition, his
or her name goes on the primary election ballot. A person who
does not succeed in the primary can also file as a write-in
candidate in the general election. It used to be the case that
all the names of candidates by petition just went straight to
the general election ballot, rather than being in the primary.
That is no longer the case. Now they go in the primary. In
response to a question by Representative James, she said she did
not know why that change had been made.
CHAIR ROKEBERG asked if they would still be allowed on the
primary ballot under this [Version J].
MS. KURTZ said that is the question that came up earlier because
it was unclear.
CHAIR ROKEBERG remembered that was to be Conceptual Amendment 3,
and the committee would address that issue next. [Still before
the committee was the question of Amendment 2.]
REPRESENTATIVE KOOKESH expressed continuing concern about the
paste-in part [that Amendment 2 would address].
CHAIR ROKEBERG said by leaving [that portion of Version J]
alone, the committee was prohibiting it.
REPRESENTATIVE JAMES said she thought it might be necessary to
come back and fix it again if Amendment 2 were adopted. She
said, "I see absolutely no reason to have any candidates on a
primary election [ballot] if they're not competing with
anybody."
CHAIR ROKEBERG observed that Version J reads, "Blank spaces may
not be provided on the ballot for the writing or pasting in of
names." Thus it was prohibited.
REPRESENTATIVE KOOKESH indicated he did not want to withdraw
Amendment 2.
Number 1765
A roll call vote was taken. Representatives Kookesh and James
voted for Amendment 2. Representatives Coghill, Meyer, and
Rokeberg voted against it. Therefore, Amendment 2 failed by a
vote of 2-3.
CHAIR ROKEBERG concluded, "So we have the status quo, where
we're prohibiting the writing in of names and 'paste-ons,' on
the primary ballot only."
MS. KURTZ confirmed, "This is only about primary election
ballots, so here we're saying you can't leave spaces to write in
or paste in names on the primary ballot."
Number 1778
CHAIR ROKEBERG made a motion to adopt Conceptual Amendment 3,
"which would exclude from any party's ballot the names of any
nonpartisan or undeclared candidates," who he surmised were
those who had qualified by petition.
REPRESENTATIVE JAMES questioned whether [those names] would go
directly to the general election ballot.
MS. KURTZ said that used to be the case, but now [names of
nominating petition candidates] go on the primary election
ballot.
CHAIR ROKEBERG said this committee wants to exclude [those
names] entirely.
MS. KURTZ asked, "Is your wish to exclude them by putting them
on the general [election ballot]?"
Number 1831
CHAIR ROKEBERG said yes, that the committee wanted to prohibit
their names appearing on any primary ballots. He asked if that
was the sense of the committee. After noting there was no
objection, Chair Rokeberg announced that Conceptual Amendment 3
was adopted.
Number 1841
REPRESENTATIVE JAMES moved to report CSHB 193, version 22-
GH1089\J, Kurtz, 4/4/01, as amended, out of committee with
individual recommendations and the accompanying fiscal notes.
REPRESENTATIVE KOOKESH objected.
Number 1850
A roll call vote was taken. Representatives Coghill, Meyer,
James, and Rokeberg voted in favor of moving CSHB 193, version
22-GH1089\J, Kurtz, 4/4/01, as amended. Representative Kookesh
voted against it. Therefore, CSHB 193(JUD) was reported out of
the House Judiciary Standing Committee by vote of 4-1.
HB 120 - DISCLOSURE OF CRIMINAL HISTORY RECORDS
Number 1870
CHAIR ROKEBERG announced that the next order of business would
be SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 120, "An Act adopting
the National Crime Prevention and Privacy Compact; making
criminal justice information available to interested persons and
criminal history record information available to the public;
making certain conforming amendments; and providing for an
effective date." [With the reading of the title, SSHB 120 was
held over.]
ADJOURNMENT
Number 1878
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:20 p.m.
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