04/18/2001 01:32 PM House JUD
| Audio | Topic |
|---|
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
April 18, 2001
1:32 p.m.
MEMBERS PRESENT
Representative Norman Rokeberg, Chair
Representative Scott Ogan, Vice Chair (via teleconference)
Representative Jeannette James
Representative John Coghill
Representative Kevin Meyer
Representative Ethan Berkowitz
Representative Albert Kookesh
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 179
"An Act relating to underage drinking and drug offenses; and
providing for an effective date."
- MOVED CSHB 179(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 125
"An Act relating to unlawful and indecent viewing and
photography and to civil damages and penalties for that viewing
and photography."
- MOVED CSHB 125(JUD) OUT OF COMMITTEE
SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 68
"An Act relating to civil liability for transporting an
intoxicated person or for driving an intoxicated person's motor
vehicle; and providing for an effective date."
- MOVED CSSSHB 68(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 67
"An Act requiring proof of motor vehicle insurance in order to
register a motor vehicle; and relating to motor vehicle
liability insurance for taxicabs."
- HEARD AND HELD
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."
- SCHEDULED BUT NOT HEARD
HOUSE BILL NO. 196
"An Act establishing a right of action for a legal separation;
and amending Rule 42(a), Alaska Rules of Civil Procedure."
- SCHEDULED BUT NOT HEARD
HOUSE BILL NO. 114
"An Act relating to abuse of inhalants."
- SCHEDULED BUT NOT HEARD
PREVIOUS ACTION
BILL: HB 179
SHORT TITLE:OFFENSES RELATING TO UNDERAGE DRINKING
SPONSOR(S): JUDICIARY
Jrn-Date Jrn-Page Action
03/13/01 0560 (H) READ THE FIRST TIME -
REFERRALS
03/13/01 0560 (H) JUD, FIN
03/26/01 (H) MINUTE(JUD)
03/28/01 (H) JUD AT 1:00 PM CAPITOL 120
03/28/01 (H) <Bill Postponed TO 3/30/01>
03/30/01 (H) JUD AT 1:00 PM CAPITOL 120
03/30/01 (H) Heard & Held
03/30/01 (H) MINUTE(JUD)
03/31/01 (H) JUD AT 11:00 AM CAPITOL 120
03/31/01 (H) Heard & Held
MINUTE(JUD)
04/10/01 (H) JUD AT 5:00 PM CAPITOL 120
04/10/01 (H) Heard & Held
MINUTE(JUD)
04/18/01 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 125
SHORT TITLE:UNLAWFUL VIEWING
SPONSOR(S): REPRESENTATIVE(S)KOTT
Jrn-Date Jrn-Page Action
02/12/01 0297 (H) READ THE FIRST TIME -
REFERRALS
02/12/01 0297 (H) JUD, FIN
02/26/01 0444 (H) COSPONSOR(S): DYSON
04/06/01 (H) JUD AT 1:00 PM CAPITOL 120
04/06/01 (H) Heard & Held
MINUTE(JUD)
04/18/01 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 68
SHORT TITLE:NO CIVIL LIAB FOR TAXI TRANSPORTING DRUNK
SPONSOR(S): REPRESENTATIVE(S)ROKEBERG
Jrn-Date Jrn-Page Action
01/17/01 0111 (H) READ THE FIRST TIME -
REFERRALS
01/17/01 0111 (H) TRA, JUD
03/19/01 0647 (H) SPONSOR SUBSTITUTE INTRODUCED
03/19/01 0647 (H) READ THE FIRST TIME -
REFERRALS
03/19/01 0647 (H) TRA, JUD
03/29/01 (H) TRA AT 1:00 PM CAPITOL 17
03/29/01 (H) Moved CSSSHB 68(TRA) Out of
Committee
MINUTE(TRA)
03/30/01 0784 (H) TRA RPT CS(TRA) 5DP 1NR
03/30/01 0784 (H) DP: KAPSNER, KOOKESH, WILSON,
SCALZI,
03/30/01 0784 (H) OGAN; NR: MASEK
03/30/01 0784 (H) FN1: ZERO(LAW)
04/09/01 (H) JUD AT 1:00 PM CAPITOL 120
04/09/01 (H) <Bill Postponed>
04/10/01 (H) JUD AT 5:00 PM CAPITOL 120
04/10/01 (H) Scheduled But Not Heard
04/11/01 (H) JUD AT 1:00 PM CAPITOL 120
04/11/01 (H) Scheduled But Not Heard
04/18/01 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 67
SHORT TITLE:MOTOR VEHICLE REGISTRATION/INSURANCE
SPONSOR(S): REPRESENTATIVE(S)ROKEBERG
Jrn-Date Jrn-Page Action
01/17/01 0111 (H) READ THE FIRST TIME -
REFERRALS
01/17/01 0111 (H) L&C, JUD
03/26/01 (H) L&C AT 3:15 PM CAPITOL 17
03/26/01 (H) Bill Postponed
03/28/01 (H) L&C AT 3:15 PM CAPITOL 17
03/28/01 (H) Moved CSHB 67(L&C) Out of
Committee
MINUTE(L&C)
03/30/01 0783 (H) L&C RPT CS(L&C) NT 5DP 2NR
03/30/01 0784 (H) DP: KOTT, CRAWFORD, HAYES,
MEYER,
03/30/01 0784 (H) ROKEBERG; NR: HALCRO,
MURKOWSKI
03/30/01 0784 (H) FN1: ZERO(H.L&C)
04/09/01 (H) JUD AT 1:00 PM CAPITOL 120
04/09/01 (H) <Bill Postponed>
04/10/01 (H) JUD AT 5:00 PM CAPITOL 120
04/10/01 (H) Scheduled But Not Heard
04/11/01 (H) JUD AT 1:00 PM CAPITOL 120
04/11/01 (H) Scheduled But Not Heard
04/18/01 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
MARTI GREESON, Director
Mothers Against Drunk Driving (MADD), Anchorage
3600 Arctic Boulevard, Box 3
Anchorage, Alaska 99503
POSITION STATEMENT: Testified on HB 179; expressed support for
intervention regarding kids who are drinking, including
immediate and effective consequences that include education,
screening, monitoring, and mentoring.
SHARON LEON, Executive Director
Anchorage Youth Court
PO Box 102735
Anchorage, Alaska
POSITION STATEMENT: Testified on HB 179; emphasized the need
for earlier screening and for flexibility in the statutes so
youth courts can hear alcohol-related cases.
JOAN DIAMOND
5700 Rabbit Creek
Anchorage, Alaska 99516
POSITION STATEMENT: Testified on HB 179 as coordinator of group
of concerned people; expressed need for the first violation to
result in screening and for flexibility for a magistrate in
sentencing options, including referrals.
HEATHER M. NOBREGA, Staff
to Representative Norman Rokeberg
House Judiciary Standing Committee
Alaska State Legislature
Capitol Building, Room 118
Juneau, Alaska 99801
POSITION STATEMENT: As committee aide for the House Judiciary
Standing Committee, explained proposed amendments to HB 179,
Version L; and explained the changes encompassed by the
committee substitute to HB 125.
ROBERT BUTTCANE, Legislative and Administrative Liaison
Division of Juvenile Justice
Department of Health and Social Services
PO Box 110635
Juneau, Alaska 99811-0635
POSITION STATEMENT: Commented on Amendment 11 to HB 179,
Version L.
DOUG WOOLIVER, Administrative Attorney
Office of the Administrative Director
Alaska Court System
820 West 4th Avenue
Anchorage, Alaska 99501-2005
POSITION STATEMENT: Commented on Amendment 11 to HB 179,
Version L.
DENISE HENDERSON, Staff
to Representative Pete Kott
Alaska State Legislature
Capitol Building, Room 204
Juneau, Alaska 99801
POSITION STATEMENT: On behalf of the sponsor, Representative
Kott, answered questions regarding HB 125.
JERRY LUCKHAUPT, Attorney
Legislative Legal Counsel
Legislative Legal and Research Services
Legislative Affairs Agency
Terry Miller Building, Room 329
Juneau, Alaska 99801-1182
POSITION STATEMENT: Speaking as the drafter, answered questions
regarding HB 125.
RYNNIEVA MOSS, Staff
to Representative John Coghill
Alaska State Legislature
Capitol Building, Room 102
Juneau, Alaska 99801
POSITION STATEMENT: Answered questions related to proposed
Amendment 1 to Version C of HB 125.
JANET SEITZ, Staff
to Representative Norman Rokeberg
Alaska State Legislature
Capitol Building, Room 118
Juneau, Alaska 99801
POSITION STATEMENT: On behalf of the sponsor, Representative
Rokeberg, assisted with the presentations of SSHB 68 and HB 67
and answered questions on both bills.
KACE McDOWELL, Executive Director
Alaska Cabaret Hotel Restaurant & Retailers Association
1111 East 80th Avenue
Anchorage, Alaska 99501
POSITION STATEMENT: Provided comments on Version O of SSHB 68
and answered questions.
ACTION NARRATIVE
TAPE 01-64, SIDE A
Number 0001
CHAIR NORMAN ROKEBERG called the House Judiciary Standing
Committee meeting to order at 1:32 p.m. Members present at the
call to order were Representatives Rokeberg, Ogan (via
teleconference), Coghill, and Meyer. Representatives James,
Berkowitz, and Kookesh joined the meeting as it was in progress.
HB 179 - OFFENSES RELATING TO UNDERAGE DRINKING
[Contains discussion of HB 4 relating to Amendment 5 to HB 179.]
Number 0073
CHAIR ROKEBERG announced the first order of business, HOUSE BILL
NO. 179, "An Act relating to underage drinking and drug
offenses; and providing for an effective date."
[Adopted as a proposed committee substitute (CS) on April 10 was
Version L, 22-LS0564\L, Ford, 4/4/01, which was amended at the
same meeting by Amendments 1-3 (Amendment 4 having been
withdrawn).]
CHAIR ROKEBERG noted that a couple of amendments mentioned at a
previous hearing were needed to clean up the "attorney general's
last major amendment, and with his consent" [Amendment 1 to HB
179, adopted 3/31/01, which is incorporated into Version L]. He
then continued taking public testimony, first calling upon Marti
Greeson and asking that she be brief because he had her written
testimony.
Number 0109
MARTI GREESON, Director, Mothers Against Drunk Driving (MADD),
Anchorage, testified via teleconference, voicing support for
actions to intervene regarding kids who are drinking. She cited
Kodiak as an example, noting that three young people at a party
fell off a cliff; one died, and two were flown to Anchorage for
medical treatment. In addition, when three young men were
involved in an alcohol-related crash, one received a broken back
and the other two were injured. Furthermore, in the last month,
teenagers who had been drinking were involved in a crash in
which two young brothers were killed.
MS. GREESON explained that her presentations in Anchorage-area
schools have focused primarily on eighth-grade health classes,
where about 80 percent of students indicate they have been
offered alcohol, know how to get alcohol, and have friends who
drink. She doesn't ask students whether they themselves drink,
she noted, because they won't tell her anyway. She said that
when asked, students say they don't believe there will be
serious consequences if they are caught.
MS. GREESON told members she strongly supports immediate
intervention, not waiting until the third time to have the
consequences. Furthermore, consequences need to be effective
and should include education or screening at the very beginning.
It is also critical to have monitoring and mentoring of these
young people.
Number 0379
SHARON LEON, Executive Director, Anchorage Youth Court (AYC),
testified via teleconference, noting that she has been AYC's
executive director for 12 years. She explained that AYC doesn't
handle underage drinking because state statutes don't give
authority to the youth courts to do so. Thus AYC didn't keep
data for alcohol-related offenses until 1999, at which time AYC
started recording whether a young person who had broken a law
had a history of using alcohol. In 1999, 25 percent of the
youth court's defendants recorded a history of alcohol abuse,
she said, which is 111 out of 442 students; in 2000, 17.5
percent recorded a history of alcohol abuse.
MS. LEON told members that when young people have used alcohol
while committing a criminal offense, AYC does have statutory
authority to assign, in the sentencing, program participation or
an assessment. However, right now youth courts don't have
authority regarding underage drinking in general.
MS. LEON stated her understanding that part of HB 179 would be
just screening at the third offense. She said there need to be
real consequences early on, however, because AYC has been less
successful with people who have committed more than one offense;
she surmised that the same would be true relating to alcohol.
She asked whether there is a way to do screening earlier, with
assessment following at the second or third offense, and a
follow-through consisting of whatever was determined at the
assessment, so that there would be real consequences.
MS. LEON informed members that youth courts don't have the
ability to hear minor criminal offenses. There needs to be some
flexibility written into the statutes so that youth courts can
hear alcohol-related cases.
Number 0638
CHAIR ROKEBERG responded that he believes screening, or the so-
called JASAP [Juvenile Alcohol Safety Action Program], is
allowed under the new version of the bill [Version L], at the
discretion of the judge; he indicated that this can happen
before the third offense. He also noted that adopted at the
previous hearing was an amendment providing for a community
diversion panel, which would allow youth courts to do that; he
said there was another amendment proposed at the current hearing
to clear that up. He asked Ms. Leon whether, given the maturity
of AYC and length of time it has existed, AYC could handle "a
first-offense-only youth offender for this violation."
MS. LEON replied that she believes so, if there is a referring
authority.
CHAIR ROKEBERG specified that the court would have to refer it,
and, under one scenario, would do a suspended imposition [of
sentence] (SIS).
MS. LEON said that is great and expressed appreciation for it.
Number 0725
JOAN DIAMOND testified via teleconference, noting that [Version
L] had just been handed to her and acknowledging that the
amendments [that she would discuss] may already be built in.
Ms. Diamond said she works for the "department of health for the
city" and is coordinator for a group whose members are listed in
the committee packet; that group has been meeting for more than
two years, and members are people who see violations relating to
underage drinkers, including juvenile magistrates, a district
court judge, a representative of the [Division] of Motor
Vehicles (DMV), representatives from the Anchorage Police
Department (APD), and others.
MS. DIAMOND expressed the need for the first violation to result
in screening so an early pattern of drinking is identified. She
explained that screening, which is much less intrusive, is
designed to see whether there is a pattern of drinking, whereas
an assessment looks at someone who has already developed a
drinking problem to see what level of treatment is needed.
MS. DIAMOND agreed with Ms. Leon regarding the need for a
magistrate - who sees the offender in traffic court - to have
flexibility in sentencing, including referral of a person to
youth court or a juvenile ASAP [Alcohol Safety Action Program].
In that way, monitoring would be built in to ensure that the
person has complied; she noted that accountability has been
difficult to ensure, and emphasized the desire to avoid severe
or punitive measures, especially for youth possibly coming into
the system for the first time. With youth courts' having
flexible sentencing options, different regions will be able to
customize sentences. She expressed hope that these measures
will reduce recidivism and keep youths from becoming DWI
[driving while intoxicated] offenders [as adults].
Number 0949
CHAIR ROKEBERG asked that Ms. Diamond review amendments to be
offered that day, as well as the resulting committee substitute
(CS) that would be moved out that day. Noting that there would
be another hearing in the House Finance Committee, he said he
would appreciate hearing from anybody who believes there should
be additional changes after the bill moved from the current
committee. He then closed the public hearing on HB 179.
CHAIR ROKEBERG informed members that he had asked Ms. Nobrega to
review the proposed amendments with the drafter. He also noted
that there was another proposed amendment that the department
had talked about.
Number 1019
CHAIR ROKEBERG made a motion to adopt Amendment 5, which read
[original punctuation provided]:
Page 2, Line 14
Delete: "by the end of the next business day"
Insert: "within five working days"
Page 3, Line 27, after "revocation"
Insert: "within five working days"
Number 1020
HEATHER M. NOBREGA, Staff to Representative Norman Rokeberg,
House Judiciary Standing Committee, Alaska State Legislature,
speaking as the committee aide for the House Judiciary Standing
Committee, informed members that Amendment 5 conforms with what
was done in HB 4, to require the court, within five working
days, to notify the [DMV] of a revocation of a license. She
concurred with Chair Rokeberg that it gives a more realistic
timeframe.
Number 1056
CHAIR ROKEBERG asked whether there was any objection to
Amendment 5. There being no objection, Amendment 5 was adopted.
[Note: Amendment 6A was in packets, but was neither offered nor
discussed.]
Number 1076
CHAIR ROKEBERG made a motion to adopt Amendment 6B, 22-
LS0564\L.6, Ford, 4/18/01, which read:
Page 2, line 3:
Delete "and"
Page 2, line 4, following "(2)":
Insert "revoke the person's driver's license for
three months;
(3) take possession of the person's
driver's license; and
(4)"
Page 3, lines 20 - 25:
Delete all material.
Insert "suspended incarceration. If the person
was convicted under (c) or (d) of this section, the
court shall revoke the person's driver's license for
an additional six months beyond the revocation imposed
under (c) or (d) of this section. A court revoking a
person's driver's license under this"
Page 5, line 4:
Delete "AS 04.16.050(d)"
Insert "AS 04.16.050(c), (d),"
Page 5, line 10:
Delete "AS 04.16.050(d)"
Insert "AS 04.16.050(c), (d),"
Page 5, lines 28 - 31:
Delete all material.
Insert "AS 04.16.050(c) or (d) shall revoke the
person's driver's license or"
Page 6, line 2:
Delete "AS 04.16.050(d)"
Insert "AS 04.16.050(c) or (d)"
Page 9, line 16:
Delete "habitual"
Page 9, line 17:
Delete "AS 04.16.050(d)"
Insert "AS 04.16.050(c) or (d)"
Page 9, line 18:
Delete "AS 04.16.050(d)"
Insert "AS 04.16.050(c) or (d)"
Page 11, line 27:
Delete "habitual"
Page 11, line 28:
Delete "AS 04.16.050(d)"
Insert "AS 04.16.050(c) or (d)"
Page 11, line 30:
Delete "AS 04.16.050(d)"
Insert "AS 04.16.050(c) or (d)"
Number 1079
REPRESENTATIVE BERKOWITZ objected for discussion purposes.
MS. NOBREGA explained that Amendment 6B revokes the driver's
license of a repeat offender - a person for whom this is the
second time being caught consuming or possessing alcohol. The
second paragraph [relating to page 3, lines 20-25 of Version L]
just adds the repeat offenders to this provision.
CHAIR ROKEBERG said it "makes three months and six months under
revocation."
MS. NOBREGA agreed, if the offender doesn't successfully
complete all the court-ordered probation.
Number 1112
REPRESENTATIVE BERKOWITZ responded that there is a recurring
constitutional problem with basing a subsequent conviction on
previous convictions that don't have the right to counsel
attached. He asked whether there were any [legal] opinions
regarding that.
CHAIR ROKEBERG first suggested that Mr. Guaneli [of the
Department of Law] would be asked to address that. After being
informed that Mr. Guaneli was attending another hearing,
however, he asked Ms. Nobrega to address the question.
MS. NOBREGA stated:
We believe we have circumvented that problem by
putting them on probation until they're 21, on each
level of the offense. So on their first offense,
they're on probation until they're 21, and their
second offense would be when they violate their
probation; and one of the [conditions] of probation is
they never drink again.
Number 1192
MS. NOBREGA, in response to a comment by Chair Rokeberg,
clarified that right now, under Version L, there is no
revocation for any license for the second offense. This adds a
three-month revocation.
REPRESENTATIVE BERKOWITZ asked whether the revocation is based
upon the second offense or upon the violation of probation on
the first offense.
MS. NOBREGA answered that the revocation is part of the penalty
for being a repeat offender, "which is all of the above."
CHAIR ROKEBERG added that a judge would make the determination;
the miscreant would have had the ability to request a jury trial
and probably would have refused it, "statistically speaking."
MS. NOBREGA concurred, then added, "At the second level, since
we are imposing community work service, they already have a
right to a jury trial; so this wouldn't be adding any new right
that they don't already have."
Number 1261
REPRESENTATIVE BERKOWITZ mentioned a person's avoiding the
requirements. He said if one violates a condition of probation
that has been imposed subsequent to the first offense, it
generally would be a new criminal offense - the violation of
probation.
MS. NOBREGA explained that as the bill reads, for a second
offense, for example, a person is guilty of being a repeat
offender if the person is on probation, or has been convicted
previously, and is caught in violation of subsection (a), which
is being caught consuming alcohol. Whether the person is on
probation and then caught or had a previous conviction and then
is caught, it is a "second-time repeat."
REPRESENTATIVE BERKOWITZ pointed out that some statutory
construction rules will be called into play, and the
construction probably will be looked at in the light most
favorable to the defendant. He said he would like to know
whether the court would disregard the probationary purpose and
consider this to be an offense based on a prior offense.
CHAIR ROKEBERG acknowledged the validity of the question but
said he would defer it; he suggested the analysis of the bill
should include it, but said he didn't want to hold it up any
longer. He asked that Representative Berkowitz assist in
getting that clarified.
Number 1374
REPRESENTATIVE JAMES sought clarification that a person would
automatically get probation until age 21, upon a first offense;
she then noted that the language says it is either a violation
of probation or the person's second offense. She asked whether
the only way that someone would have a second offense and not be
on probation, then, would be if the person's first offense
occurred before this became law.
MS. NOBREGA responded that maybe she herself shouldn't have used
the phrase "violation of probation." She explained:
If they're on probation and they are caught drinking,
that is a second offense - and they're on probation
because they had [the first one], or if they have been
previously convicted, which consists of a whole bunch
of other crimes, and they ... consumed alcohol; then
that would be a second offense.
Number 1430
REPRESENTATIVE COGHILL asked whether that doesn't still beg the
question of the removal of the driver's license being immaterial
to the drinking.
MS. NOBREGA answered that she didn't believe that would be a
problem here because the person would have a right to a jury
trial. She said that was the whole problem with [the State v.
Niedermeyer case]: there was no right to due process.
REPRESENTATIVE JAMES said that was on the previous conviction.
CHAIR ROKEBERG said this is a second offense.
MS. NOBREGA clarified that on the first offense, there is no
right to a jury trial.
REPRESENTATIVE BERKOWITZ pointed out that there is no license
revocation, either. For the second offense, there is a license
revocation and a jury trial; it is known to be a second offense
because the person is on probation for the first [offense].
MS. NOBREGA agreed.
CHAIR ROKEBERG asked Representative Berkowitz whether his
concern was that there might be a probation violation as well as
a second violation.
Number 1475
REPRESENTATIVE BERKOWITZ said no, although that obviously would
be the case. He clarified that he believes it is stronger just
to say "probation", without having "or subsequent offense".
REPRESENTATIVE JAMES said she wanted to know what "or subsequent
offense" was, if the person had a first offense before the
automatic probation under this bill went into effect. She asked
what kind of conditions it would require, other than being on
probation. She further asked whether it is possible that a
person on probation for something else [could fall under this].
MS. NOBREGA, in answer to the last question, said that is not
her understanding of how the bill works.
REPRESENTATIVE JAMES asked whether for the previous conviction,
then, the person would have had a jury trial or an attorney.
MS. NOBREGA answered that "previously convicted" is defined in
the bill.
CHAIR ROKEBERG noted that the probation period is for one year
or until the person is 21 years old.
Number 1553
MS. NOBREGA said it is whichever is longer.
CHAIR ROKEBERG asked that the committee move on.
REPRESENTATIVE JAMES replied that she wasn't really happy with
the Amendment 6B.
CHAIR ROKEBERG said all [Amendment 6B] does is add revocation of
a license; the issue brought up by Representative Berkowitz has
to do with the bill, not the amendment.
REPRESENTATIVE BERKOWITZ paraphrased the portion of Amendment 6B
that read, "If the person was convicted under (c) or (d) of this
section, the court shall revoke the person's driver's license
for an additional six months beyond the revocation imposed under
(c) or (d) [of this section]." He asked what that means.
Number 1604
MS. NOBREGA answered that it is in [subsection] (h) of the bill;
it refers to when a person has not successfully completed the
conditions of probation or successfully completed the
adjudication. She called it an "additional hammer." She noted
that it includes failure to do community work service. It just
adds [subsection] (c) to this section, which is the three-month
revocation.
Number 1638
CHAIR ROKEBERG asked Representative Berkowitz whether he
maintained his objection.
REPRESENTATIVE BERKOWITZ said no. He said he appreciated what
was trying to be accomplished, but that he was a little
concerned about some of the statutory construction.
CHAIR ROKEBERG responded that he shares the concern and wants to
make sure [HB 179] is right, but doesn't want to hold it up. He
said it is imperative that the bill pass the legislature this
year.
Number 1664
CHAIR ROKEBERG announced that with the objection having been
removed, Amendment 6B was adopted.
Number 1667
CHAIR ROKEBERG made a motion to adopt Amendment 7, which read
[original punctuation provided]:
Page 5, Line 24
Delete: "may not"
Insert: "shall"
MS. NOBREGA explained that Amendment 7 requires the DMV to
obtain proof of financial responsibility before restoring a
person's privilege to drive.
REPRESENTATIVE BERKOWITZ asked why this wasn't done before [in
HB 179].
MS. NOBREGA said she had thought it was changed in a previous
version.
CHAIR ROKEBERG indicated the committee had gone back to the
attorney general's version, which then required going through it
with a fine-toothed comb.
Number 1704
CHAIR ROKEBERG, hearing no objection, announced that Amendment 7
was adopted.
Number 1713
CHAIR ROKEBERG made a motion to adopt Amendment 8, which read
[original punctuation provided]:
Page 1, Line 13
Delete: "(e)"
Insert: "(b)"
Page 2, Line 7
Delete: "(e)"
Insert: "(c)"
Page 2, Line 7
Delete: "or under this subsection"
MS. NOBREGA said Amendment 8 isn't changing anything, but is
clarifying a reference. She referred to page 1, line 13
[Version L], and pointed out that it says the person is on
probation under (e); that actually refers to the probation
section, she explained, but what is meant in this instance is
that the person is on probation because of falling under (b).
Therefore, this is how the second offense works. The same
happens under [subsection] (d) when referring to (c). She said
it is a clarification, but also deletes some words that were
confusing.
Number 1743
CHAIR ROKEBERG asked whether there was any objection. There
being no objection, Amendment 8 was adopted.
Number 1749
CHAIR ROKEBERG made a motion to adopt Amendment 9, which read
[original punctuation provided]:
Page 2, Line 19 after "later."
Insert: The defendant may not refuse probabtion
[sic].
MS. NOBREGA apologized for the typographical error, then
explained that Mr. Guaneli had informed her that a defendant has
the right to refuse probation. Ms. Nobrega said if that were to
happen in this instance, there never would be repeat offenders
under the "probation theory." Therefore, Amendment 8 makes it
so that the defendant cannot refuse probation if the person is
in violation of minor-consuming laws. In response to a request
for clarification by Representative Berkowitz, she said Mr.
Guaneli had informed her that a defendant can refuse probation
and request that jail time, for example, be imposed instead.
Number 1787
CHAIR ROKEBERG, hearing no objection, announced that Amendment 9
was adopted.
Number 1790
CHAIR ROKEBERG made a motion to adopt Amendment 10, which read
[original punctuation provided]:
Page 3, Line 18
Delete: "shall"
Insert: "may"
Page 3, Line 18-219 [sic]
Delete: "if the person was convicted under (c) of
this section"
MS. NOBREGA explained that Amendment 10 gives the court
discretion in imposing the suspended fine. It also deletes
words that are confusing, without changing the meaning, because
it actually refers to a person being under (c) or (d); it is for
"any successful," not just under subsection (c).
CHAIR ROKEBERG asked whether there was any objection. There
being no objection, Amendment 10 was adopted.
Number 1829
CHAIR ROKEBERG referred to page 5 [Version L, Section 5, lines
13-14], the words "or drugs" in the heading "Administrative
revocation of license to drive for consumption or possession of
alcohol or drugs." He asked Ms. Norbrega about that.
MS. NORBREGA answered that she had checked again, and there
actually is a reference to drugs; therefore, that language can
remain.
Number 1849
CHAIR ROKEBERG made a motion to adopt Amendment 11, which read:
Section 1. AS 04.16.050(b) is amended to read:
(b) A person who violates (a) of this section and
who has not been previously convicted or granted a
suspended imposition of sentence under (1) of this
subsection, is guilty of minor consuming or in
possession or control [A VIOLATION]. Upon conviction
in the district court, the court [MAY]
(1) may grant a suspended imposition of
sentence under AS 12.55.085 and place the person on
probation for one year or until the person is 21 years
of age, whichever is later, if the person has not been
convicted of a prior version of this section. Among
the conditions of probation, the court shall, with the
consent of a community diversion panel, refer the
person to the panel, and require the person to comply
with conditions set by the panel which may include
counselling, education, treatment, community work
service and payment of fees. In this subsection,
"community diversion panel" means a youth court or
other group approved by the court to dispose of cases
involving violations of this section; or
(2) shall impose a fine of at least $200 but
not more than $600, shall require the person to attend
alcohol information school if the school is available,
and shall place the person on probation under (e) of
this section. The court may suspend a portion of the
fine imposed under this subsection that exceeds $200
if the person is required to pay for education or
treatment required under (e) of this section [NOT LESS
THAN $100].
Number 1864
ROBERT BUTTCANE, Legislative and Administrative Liaison,
Division of Juvenile Justice, Department of Health and Social
Services (DHSS), came forward at the request of Chair Rokeberg.
He explained that Amendment 11 gives the court an option, after
a person has been convicted of minor consuming or possession of
alcohol, to go to a community diversion program under a
suspended imposition of sentence (SIS). The scheme here would
limit that option to those who have been convicted and who never
before have been referred to the court or convicted by the court
for a minor-consuming-alcohol offense.
MR. BUTTCANE said Amendment 11 allows the court to determine
which community diversion program it might want to send these
people to, which is pretty broad; it could include a panel of
elders, a youth court, or some other program that a community
might develop. It is all under the recognized authority of the
court, he said, which makes that decision and negotiates with
whatever local entity it chooses as suitable to provide services
to people who get these first convictions. It is a dual choice
for the court, he noted, which can do an SIS or can proceed and
impose a fine of $200 to $600, and then follow the rest of the
sentencing options in paragraph (2) of Amendment 11.
CHAIR ROKEBERG reported that Amendment 11 had resulted from a
conversation after the last meeting [April 10, 2001], when he'd
asked the administration to "help out" with Amendment 3.
MS. NOBREGA said Amendment 11 would replace Amendment 3.
Number 1991
REPRESENTATIVE JAMES made a motion to rescind the committee's
action [on April 10, 2001] in adopting Amendment 3. There being
no objection, Amendment 3 was rescinded.
CHAIR ROKEBERG stated his understanding that the community
diversion panel is described elsewhere in statute under the
DHSS; he said one of his early drafts had included that. He
asked Mr. Buttcane why the court is specified, rather than the
DHSS [in Amendment 11].
Number 2033
MR. BUTTCANE answered that the phrase "community diversion
panel" isn't included in a definition in the department's
statutes; what is included in statute defines a youth court. He
explained:
We didn't feel that it was real appropriate to just
simply use "youth court", because communities have a
variety of other panels. But rather than to amend the
existing language under Title 47.12, the delinquency
chapter -- it would be a lot more complicated and
involved than taking this route, which vests the court
with the authority to negotiate with their own
community as to the establishment of a community
diversion panel.
It expedites the process of getting people who are
interested in working with underage drinkers. It
still provides some oversight, but it doesn't embroil
it in a bureaucracy that, really, we would have to do
a much more exhaustive adjustment to the delinquency
chapter in order to define "community diversion
panels" to take care of this problem. So what is
proposed in this amendment is the most direct and
simple fix that allows communities to step forward and
address the issues of underage drinking.
Number 2070
CHAIR ROKEBERG asked whether the intention is to give the court
greater flexibility.
MR. BUTTCANE affirmed that.
CHAIR ROKEBERG stated his own intention that it include, for
example, an elder council.
REPRESENTATIVE BERKOWITZ noted that during the previous session,
the legislature had passed "restorative justice" legislation.
He said as he understands it, the attempt [with Amendment 11] is
to allow adjudication by bodies that are consistent with the
principles outlined in that previous legislation.
CHAIR ROKEBERG said that is correct, precisely. He indicated
that relates to his intention behind offering Amendment 11.
MS. NOBREGA reported that Mr. Guaneli had suggested that the
group could be approved by the court or [the DHSS], to add more
flexibility.
CHAIR ROKEBERG said he didn't know whether the courts would like
that, rather than having control. He asked Mr. Wooliver to
comment.
Number 2136
DOUG WOOLIVER, Administrative Attorney, Office of the
Administrative Director, Alaska Court System (ACS), came
forward, noting that he had just seen the amendment. He said
right now he doesn't know how [the court system] approves these
in the first place; however, he didn't think [the court system]
would object to having the department approve things and then
having the court send people to programs approved by the
department. He added that the court system isn't in the
business of approving these ultimate locations or groups,
although he said perhaps some standards could be adopted for
doing that.
CHAIR ROKEBERG said he himself would like to be able to do that.
CHAIR ROKEBERG made a motion to amend Amendment 11 by adding,
after "[approved] by the court", the phrase "or the Department
of Health and Social Services". He said he believes the
discretion of the court is embodied in the entire subsection;
therefore, the court has the discretion to do it either way. If
the department had already pre-approved something, then the
judge could take it up.
REPRESENTATIVE BERKOWITZ objected.
CHAIR ROKEBERG asked why Representative Berkowitz was objecting,
since the proposed wording is "or".
REPRESENTATIVE BERKOWITZ explained that it would say that the
executive branch had the power to adjudicate cases.
CHAIR ROKEBERG disagreed, emphasizing that he was saying it
would be approved by the department, and, therefore, the judge
could take it or leave it.
REPRESENTATIVE BERKOWITZ countered that it puts the executive
branch in the position of authorizing the court [to do
something], which is the legislature's purview.
CHAIR ROKEBERG stated his understanding that youth courts are
approved by the DHSS. As Mr. Wooliver had said, unless the
courts set up an approval mechanism, there would be no way to
approve them right now. By adopting [the proposed language
relating to] the DHSS, they could, for example, utilize the
Anchorage Youth Court if so desired, because it would have been
approved by the department.
REPRESENTATIVE BERKOWITZ requested an explanation of how that
mechanism relating to youth courts works.
Number 2242
MR. BUTTCANE answered that [AS] 47.12.400 right now relates to
the authorities of youth courts; it outlines for youth courts
some very specific jurisdictions relating to crimes. The way
that section is written, it would not currently include any
authority to handle cases involving minors consuming alcohol,
tobacco, or a curfew. In his consultation with the Department
of Law (DOL), he said what is being proposed here is that the
court could refer these cases to bodies such as youth courts, or
to other groups, without needing to change its delinquency
authorities. This is the reason for crafting the referral
scheme. He stated:
If we wanted only the Department of Health and Social
Services to, quote, "authorize" these various
community diversion panels, I think we will really
need to go back into the delinquency chapter and
either amend the youth court section or craft new
language that is broader for community diversion
panels. And we felt that that might not really be
what we were trying to do under this legislation.
The diversion here comes post-conviction by the court,
and becomes somewhat of a sentencing alternative. And
there are courts around the state that have been very
creative in ways of dealing effectively with underage
drinkers. And this, in a sense, recognizes some of
what is already going on by courts who are working
with local community groups to take and address the
problems of underage drinking.
Approval by the court could simply mean that the judge
or the magistrate in a community just recognizes some
working agreement with a local group, to say, "I would
like you to take these kids and work with them after
they have been convicted of minor consuming." The
same thing with tobacco: "I want you take these kids
and have them go through a smoking-cessation course or
an information course."
If the Department of Health and Social Services were,
then, to be required to approve all of these panels,
we really will need to do some more work in terms of
creating some of that regulatory scheme. And we can
do that, but that isn't what we had contemplated with
this wording.
Number 2340
REPRESENTATIVE OGAN, speaking via teleconference, requested that
a copy of the amendments be faxed to him at the [Matanuska-
Susitna] Legislative Information Office (Mat-Su LIO).
CHAIR ROKEBERG said he would do it later because he was about
ready to move the bill. He then confirmed that Representative
Berkowitz maintained his objection.
A roll call vote was taken. Representatives James, Meyer, and
Rokeberg voted for the amendment to Amendment 11.
Representatives Coghill, Berkowitz, and Kookesh voted against
it. Representative Ogan abstained because he hadn't seen the
amendment. Therefore, the amendment to Amendment 11 failed by a
vote of 3-3.
Number 2426
CHAIR ROKEBERG announced that HB 179 would be set aside. [It
was taken up again following the first portion of the hearing on
HB 125.]
HB 125 - UNLAWFUL VIEWING
Number 2456
CHAIR ROKEBERG announced that the committee would next take up
HOUSE BILL NO. 125, "An Act relating to unlawful and indecent
viewing and photography and to civil damages and penalties for
that viewing and photography."
Number 2482
REPRESENTATIVE JAMES made a motion to adopt the proposed
committee substitute (CS) for HB 125, version 22-LS0510\C,
Luckhaupt, 4/10/01, as a work draft.
Number 2488
REPRESENTATIVE BERKOWITZ objected for the purpose of clarifying
the changes proposed by Version C.
CHAIR ROKEBERG called an at-ease from 2:19 p.m. to 2:20 p.m.
TAPE 01-64, SIDE B
Number 2486
HEATHER M. NOBREGA, Staff to Representative Norman Rokeberg,
House Judiciary Standing Committee, Alaska State Legislature,
explained that Version C adds language to Section 2, page 2,
that reads:
(a) A person commits the crime of improper viewing or
photography if the person knowingly and
surreptitiously views or produces a picture of or
knowingly employs a hidden or concealed camera,
peephole, or two-way mirror to view or produce a
picture of another person in the interior of a
residence or domicile without the knowledge or consent
of ....
MS. NOBREGA noted that this change attempts to more accurately
reflect the purpose of HB 125, and should clarify that hallways
and other areas of a home that are not specifically part of "a
room" would be covered under this provision. She went on to
explain that Section 2, subsection (d)(1), now stipulates that
either of the following can be an affirmative defense: that
notice of the viewing [or] photography was posted, or that [any
viewing or use of pictures produced] is done only in the
interest of crime prevention or prosecution. She also explained
that the wording regarding [an affirmative defense for]
journalists has been altered in subsection (d)(2) of Section 2.
Number 2394
DENISE HENDERSON, Staff to Representative Pete Kott, Alaska
State Legislature, explained that the complete change to
subsection (d)(2) initially proposed by Representative Coghill
was not incorporated into Version C by the drafter. She added
that the sponsor has no objections to this change, now called
Amendment 1, which read [original punctuation provided]:
Page 2, line 24, after the words "by a professional
journalist":
Delete: "employed by a legitimate news-gathering
organization for an actual or intended news story"
Insert: who is a member in good standing of the
Society of Professional Journalists performing
journalistic duties in accordance with the Society of
Professional Journalists' principles and standards of
practice.
Number 2351
JERRY LUCKHAUPT, Attorney, Legislative Legal Counsel,
Legislative Legal and Research Services, Legislative Affairs
Agency, speaking as the drafter, explained that the revisor had
concerns about whether the Society of Professional Journalists
referred to in Amendment 1 has any exclusions, and is thus a
closed group, or is open to any professional journalists.
CHAIR ROKEBERG mentioned that the language proposed by Amendment
1 certainly narrows the definition.
MS. HENDERSON remarked that the concern raised by Mr. Buttcane
regarding viewing and photography conducted by personnel of
medical or psychiatric care facilities could be addressed by
another amendment.
MS. NOBREGA explained that such an amendment would not be
necessary because HB 125 only applies to residences and
domiciles.
Number 2239
CHAIR ROKEBERG asked whether there were any further objections
to the adoption of Version C as a work draft. There being no
objection, Version C was before the committee.
Number 2225
REPRESENTATIVE COGHILL made a motion to adopt Amendment 1.
Number 2217
CHAIR ROKEBERG objected. He then noted that with the adoption
of Version C as a work draft, proposed Amendment 1 now addresses
language on page 2, lines 25-27, and added that it makes the
distinction between journalists who are members of the Society
of Professional Journalists as opposed to journalists who are
merely employed by a legitimate news-gathering organization.
REPRESENTATIVE JAMES asked where tabloids fit in.
REPRESENTATIVE COGHILL remarked that he had wanted to address
the issue of tabloid journalists via Amendment 1.
CHAIR ROKEBERG pointed out that a journalist might be a member
of the Society of Professional Journalists and be employed by a
tabloid, and that tabloids might be considered legitimate news-
gathering organizations; thus neither the current language in
Version C nor proposed Amendment 1 really addresses this issue.
REPRESENTATIVE JAMES concurred that the latter could well be
true, but that the former might only perhaps be true.
REPRESENTATIVE OGAN opined that the entire Section 2 is probably
unconstitutional; he said there is no harm in taking a picture
of someone who is unaware that the photography is taking place.
He then noted that he had a time constraint and was prepared to
vote on the previous agenda item.
CHAIR ROKEBERG recessed the hearing on HB 125 for the purpose of
taking up HB 179 again.
HB 179 - OFFENSES RELATING TO UNDERAGE DRINKING
Number 2158
CHAIR ROKEBERG reconvened the hearing on HOUSE BILL NO. 179, "An
Act relating to underage drinking and drug offenses; and
providing for an effective date."
REPRESENTATIVE JAMES made a motion to rescind the committee's
action that day in failing to adopt [the amendment to] Amendment
11.
Number 2160
REPRESENTATIVE BERKOWITZ objected.
A roll call vote was taken. Representatives Ogan, Coghill,
Meyer, James, and Rokeberg voted to rescind the committee's
action in failing to adopt the amendment to Amendment 11.
Representatives Berkowitz and Kookesh voted against it.
Therefore, the committee's action in failing to adopt the
amendment to Amendment 1 was rescinded by a vote of 5-2.
Number 1948
CHAIR ROKEBERG made a motion to adopt the same amendment to
Amendment 11, to add "or Department of Health and Social
Services" after the phrase "approved by the court".
REPRESENTATIVE COGHILL objected, saying it broadens the scope
way beyond the youth court issue.
CHAIR ROKEBERG countered that the youth court is approved by the
Department of Health and Social Services (DHSS).
REPRESENTATIVE JAMES said the first question is whether a
community diversion panel is wanted; if so, where would the
approval come from? She noted that the youth court is approved
by the DHSS. "Unless there is already one out there, that's
already been approved by the court," she added.
CHAIR ROKEBERG remarked that it takes youth courts "out of the
swing of things" unless the court approves them, particularly if
the court doesn't have an approval mechanism. In response to
further questions by Representative Coghill, he said it is in
statute that the [DHSS] approves or disapproves the youth
courts. He explained that the amendment to Amendment 11 is for
a suspended imposition [of sentence] (SIS); a judge who so
desires can send the person to a community diversion panel,
including a youth court or something else. He emphasized that
it is only on the first offense and doesn't involve revocation
of a person's license, for example.
REPRESENTATIVE JAMES said it is only the definition of
"community diversion panel".
REPRESENTATIVE COGHILL withdrew his objection.
Number 1948
CHAIR ROKEBERG asked whether there were any further objections
to the amendment to Amendment 11. There being no objection, the
amendment to Amendment 11 was adopted.
CHAIR ROKEBERG asked whether there was any objection to
Amendment 11, as amended. There being no objection, Amendment
11, as amended, was adopted.
Number 1920
REPRESENTATIVE JAMES moved to report CSHB 179, version 22-
LS0564\L, Ford, 4/4/01, as amended, from committee with
individual recommendations and the attached fiscal notes. There
being no objection, CSHB 179(JUD) was reported from the House
Judiciary Standing Committee.
HB 125 - UNLAWFUL VIEWING
Number 1911
CHAIR ROKEBERG reconvened the hearing on HOUSE BILL NO. 125, "An
Act relating to unlawful and indecent viewing and photography
and to civil damages and penalties for that viewing and
photography." [Before the committee was Version C, adopted as a
work draft earlier in this same meeting, and proposed Amendment
1, the text of which has been included previously.]
REPRESENTATIVE COGHILL, in defense of Amendment 1, offered the
following statement from the organization itself: "The Society
of Professional Journalists is the nation's largest broad-based
journalism organization dedicated to [the] free practice of
journalism and stimulating high standards of ethical behavior."
Number 1827
RYNNIEVA MOSS, Staff to Representative John Coghill, Alaska
State Legislature, on the point of who could be included in the
Society of Professional Journalists, said that the only
possibility for exclusion might be if the [Society of
Professional Journalists] were to decide that a journalist
doesn't qualify under its standards; she added that there is not
even a membership fee to join this organization, simply an
application process and a review by its board.
REPRESENTATIVE KOOKESH asked how many Alaskans employed in the
field of journalism belonged to the [Society of Professional
Journalists].
MS. MOSS replied that quite a few did, and she added that an
Alaskan, a professor at the University of Alaska Fairbanks
(UAF), is a member of the board.
REPRESENTATIVE COGHILL added that according to his information,
every reporter of all the major newspapers, and all those
reporting from Juneau, belonged to the [Society of Professional
Journalists]. He suggested that under Amendment 1, the ethical
standards of the [Society of Professional Journalists] will
apply to the viewing and photographing conduct addressed in
Section 2.
REPRESENTATIVE JAMES indicated she is reluctant to include
journalistic conduct of any type as an affirmative defense.
REPRESENTATIVE BERKOWITZ said he objects to Amendment 1 and the
whole of [paragraph] 2, which he opined amounts to the
equivalent of government censorship of the press. He continued:
Essentially, we're saying that it is only a defense,
(A) if you're a member of this organization; [but]
there might be many legitimate journalists who aren't.
We're secondly saying that [they have] to be employed
by a legitimate news-gathering organization; that
would seem to fly in the face of organizations that
perhaps might not be considered legitimate by some but
are legitimate by others. ... We'd have problems with
freelance journalists; we'd have problems with, say,
high school journalists or college journalists. ...
If we're going to make a journalistic exception, why
don't we just say, "There's a journalistic exception,"
rather than trying to define who qualifies as a
legitimate journalist and who doesn't.
Number 1579
A roll call vote was taken. Representatives Coghill, Meyer, and
James voted for Amendment 1. Representatives Berkowitz,
Kookesh, and Rokeberg voted against it. Therefore, Amendment 1
failed by a vote of 3-3.
Number 1562
REPRESENTATIVE COGHILL made a motion to adopt Conceptual
Amendment 2, which would strike [subsection (d), paragraph (2)]
from page 2, lines 25-27, and would remove any provisions for
journalists of any kind to have an affirmative defense.
REPRESENTATIVE BERKOWITZ surmised that Conceptual Amendment 2
would have a chilling effect on free speech. He pointed out
that Section 2 of Version C simply addresses knowingly and
surreptitiously viewing and/or photographing; if Conceptual
Amendment 2 is adopted, it would be illegal, for example, to
take pictures of 15-year-olds inside a sweatshop, as part of a
news story.
CHAIR ROKEBERG remarked that according to the sponsor's staff,
the primary thrust of HB 125 is to prohibit the taking and
producing of photographs for transmittal on the Internet.
REPRESENTATIVE BERKOWITZ opined that language in Version C does
not specifically say that.
CHAIR ROKEBERG countered that language in Section 1 does address
transmittal to another person.
REPRESENTATIVE BERKOWITZ pointed out that language in Section 1
pertains to AS 09.68.150 and addresses civil liability, whereas
the language in Section 2, which would be altered by adoption of
Conceptual Amendment 2, pertains to AS 11.61.121, which
criminalizes the activity therein. Hence, "we're just saying if
you take a picture of a kid, in any circumstance, it's illegal,"
he added, and he noted that there are legitimate reasons why
someone might wish to document particular circumstances
regarding children.
CHAIR ROKEBERG affirmed that Representative Berkowitz is
correct: there is a distinction between Section 1 and Section 2
of Version C.
REPRESENTATIVE BERKOWITZ noted additionally that Section 2 even
precludes members of the legislature from photographing or
viewing photographs of children under the age of 13 for
legislative purposes such as changes to statutes related to
child abuse.
Number 1384
JERRY LUCKHAUPT, Attorney, Legislative Legal Counsel,
Legislative Legal and Research Services, Legislative Affairs
Agency, speaking as the drafter, countered that [Version C] does
not exactly do that. He then explained that the criminal
statute is narrower than the civil remedy section, and, further,
that the criminal statute would make it illegal to employ a
hidden or concealed camera, and to use that hidden or concealed
camera, peephole, or two-way mirror to surreptitiously view a
person without his/her consent. It doesn't have to be a child;
it can be an adult, but consent has to be given. He added that
if the viewing or photography involves a subject that is under
the age of [16], then the parents [or guardians] have to consent
to the activity. He also explained that the viewing or
photographing has to occur [while the subject is] in the
interior of a residence.
MR. LUCKHAUPT offered that the affirmative defense provision for
news-gathering organizations is intended to allow the use of
hidden cameras - as are used in "60 Minutes" and similar
television programs - for some purposes. He said he'd attempted
to narrow this affirmative defense provision similar to New
York's statute, which seemed, to him, to apply to legitimate
news-gathering organizations. He noted that the burden of this
provision falls on the person who chooses to view or photograph,
without consent, another person [who is in the interior of a
residence or domicile]. On the issue of whether the legislature
has the right to engage in this activity, he opined that it did
not have the authority; he did, however, acknowledge that law
enforcement could obtain authority for such activity via a
search warrant. He added that the scope of Version C has been
narrowed per comments from the last hearing, and now includes
"domicile", which allows for hotel rooms and the like. He noted
that HB 125 no longer applies to places of business.
REPRESENTATIVE BERKOWITZ asked Mr. Luckhaupt to discuss some of
the First Amendment implications of [Version C].
Number 1162
MR. LUCKHAUPT said that there will always be First Amendment
implications. He added that he can't say that the First
Amendment allows a reporter "to go into your home, place a
hidden camera in your home, and videotape you or your family."
REPRESENTATIVE BERKOWITZ pointed out that there are a number of
torts available when someone has taken peoples' images without
their consent; he said that there are four, according to his
recollection.
MR. LUCKHAUPT confirmed that this was correct, and he said that
[the torts] are encompassed within the general term of invasion
of privacy. He added that there is also intentional infliction
of emotional harm whenever a person captures someone's likeness
and parades it all over. He explained that in the general
concept of invasion of privacy, there is a general remedy;
Section 1 of Version C is designed to provide a separate means
of recovery for persons whose images have been captured.
REPRESENTATIVE BERKOWITZ referred to a privacy protection bill
that he had introduced. He recounted how opposition had arisen
from community patrols who oftentimes used cameras to take
pictures of people; because they are not official law
enforcement, the pictures taken would be illegal under the
provisions encompassed in Version C.
MR. LUCKHAUPT affirmed that a person, even as part of a
community patrol, would have no right to take pictures of
someone in the interior of a residence or domicile, which can
include hotel rooms. He acknowledged, however, that a subject
out on the street is "fair game for everybody" with regard to
being photographed or viewed.
REPRESENTATIVE BERKOWITZ explained that his previous comments
are related to the fact that part of his district encompasses
Spenard, which has a lot of prostitution activity. He recounted
how a lot of community patrols spend quite a bit of time
documenting who the "Johns" are and taking pictures of them;
some of those pictures taken are of people within a residence or
domicile and are clearly done without the knowledge and consent
of the "John" or the prostitute. He added that merely taking
the pictures has a deterrent affect on prostitution. He
reiterated that the activity of these community patrols would be
precluded by passage of HB 125.
CHAIR ROKEBERG said he is not so sure that Mr. Luckhaupt's
analysis is correct.
Number 0939
REPRESENTATIVE JAMES stressed that she did not want to give
journalists the option of an affirmative defense to
surreptitiously view or photograph children between the ages of
13 and 16, because she said she considered such a defense an
affront to the right of privacy.
REPRESENTATIVE KOOKESH asked Mr. Luckhaupt to voice his opinion
on Conceptual Amendment 2, which would remove the affirmative
defense provision for journalists.
MR. LUCKHAUPT opined that a court would still infer some First
Amendment rights for legitimate journalists engaging in
legitimate activities in pursuit of a news story. He further
opined that simply taking this provision out of Version C would
not prevent a journalist from ever raising the issue of First
Amendment rights as an affirmative defense.
REPRESENTATIVE KOOKESH suggested that merely by having the
removal of this provision on record it might be construed by
prosecutors that journalists would no longer have any
affirmative defense.
MR. LUCKHAUPT countered that a journalist's rights under the
First Amendment to the U.S. Constitution would "trump" any state
law that is placed on the books. Therefore, if the First
Amendment is read in such a way as to allow someone to videotape
someone else in the manner prohibited by Version C, then the
First Amendment right could still be raised as an affirmative
defense.
Number 0530
A roll call vote was taken. Representatives Meyer, James,
Coghill, and Rokeberg voted for Conceptual Amendment 2.
Representatives Berkowitz and Kookesh voted against it.
Therefore, Conceptual Amendment 2 was adopted by a vote of 4-2.
Number 0526
REPRESENTATIVE JAMES moved to report CSHB 125, version 22-
LS0510\C, Luckhaupt, 4/10/01, as amended, out of committee with
individual recommendations and the accompanying fiscal notes.
Number 0518
REPRESENTATIVE BERKOWITZ objected and said he still has a number
of questions about HB 125. He asked why Version C is limited to
residences and domiciles, and why such places as offices,
stores, and hospitals are not included.
MR. LUCKHAUPT reported that Version C was drafted in this manner
at the direction of the committee from the meeting held on
4/6/01.
CHAIR ROKEBERG concurred that "we tightened the scope because
there [were] concerns about business surveillance and what they
were allowed ... to do under common law as far as looking at
employees." Currently, Version C does not speak one way or
another to the issue of a business's surveillance of its
employees, he added.
REPRESENTATIVE BERKOWITZ, after noting that Version C is limited
to visual [reproductions], asked whether any thought has been
given to expanding Version C to include audio [representations].
He opined that with the technology available, there is as great
a danger of "audio peeping" as there is of "visual peeping."
REPRESENTATIVE JAMES remarked that the activity that is being
objected to - via HB 125 - is the viewing or photography,
without their consent, of persons who are nude or clothed only
in underwear. She opined that this activity does not lend
itself to an audio format.
REPRESENTATIVE BERKOWITZ offered that someone's privacy could
still be invaded via audio methods.
CHAIR ROKEBERG cautioned that the issue of audio activity is
outside the scope of HB 125.
REPRESENTATIVE BERKOWITZ argued that if there is a concern about
prurient viewing, then there ought to also be some concern about
prurient listening; if "we're" worried about invading the
privacy of a couple's bedroom just by looking in through the
window, "we" ought to worry about listening in through the
window.
CHAIR ROKEBERG suggested that Representative Berkowitz introduce
a bill that covers that subject, because HB 125 does not cover
it.
REPRESENTATIVE BERKOWITZ remarked upon the tendency of his bills
to not move [out of committee].
Number 0210
A roll call vote was taken. Representatives James, Coghill,
Meyer, and Rokeberg voted to report CSHB 125, version 22-
LS0510\C, Luckhaupt, 4/10/01, as amended, out of committee.
Representative Berkowitz voted against it. Therefore, CSHB
125(JUD) was reported from the House Judiciary Standing
Committee.
REPRESENTATIVE BERKOWITZ served notice of reconsideration on his
vote on reporting CSHB 125, version 22-LS0510\C, Luckhaupt,
4/10/01, as amended, out of committee.
CHAIR ROKEBERG, after much heated discussion, ruled that notice
of reconsideration is not appropriate at the committee level;
thus CSHB 125(JUD) was reported from the House Judiciary
Standing Committee.
HB 68 - NO CIVIL LIAB FOR TAXI TRANSPORTING DRUNK
TAPE 01-65, SIDE A
Number 0001
CHAIR ROKEBERG announced that the next order of business would
be SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 68, "An Act relating to
civil liability for transporting an intoxicated person or for
driving an intoxicated person's motor vehicle; and providing for
an effective date." [Before the committee was CSSSHB 68(TRA);
the bill was sponsored by Representative Rokeberg.]
Number 0118
JANET SEITZ, Staff to Representative Norman Rokeberg, Alaska
State Legislature, explained that SSHB 68 provides [an exemption
from] civil liability for driving the vehicle of an intoxicated
person under certain circumstances.
Number 0156
CHAIR ROKEBERG made a motion to adopt the proposed committee
substitute (CS) for SSHB 68, version 22-LS0300\O, Ford, 4/6/01,
as a work draft. There being no objection, Version O was before
the committee.
MS. SEITZ explained that Version O provides that a person will
not be liable for injury, death, or property damage resulting
from a motor vehicle accident, if the person who was driving a
vehicle involved in the accident had permission to do so from
the owner of the vehicle or was requested to do so by a law
enforcement official, and the person was not intoxicated and was
employed by a taxicab, limousine, or a holder of such a permit.
She added that Version O does not preclude civil liability as a
result of gross negligence, or reckless or intentional
misconduct. She remarked that introduction of Version O is part
of an effort to remove drunk drivers from their vehicles, yet
make sure that the intoxicated person's vehicle returns to the
person's home safely. She noted that there is a concern by many
people who drink that if their vehicles are left in a location
near licensed premises, they might be subject to damage; Version
O allows for a way to get the vehicle home without the
intoxicated person's driving it.
Number 0232
KACE McDOWELL, Executive Director, Alaska Cabaret Hotel
Restaurant & Retailers Association (CHARR), testified via
teleconference. She noted that after looking over Version O,
the only concern she and various representatives of the taxicab
industry have is that should the vehicle break down and the
taxicab driver have to leave it someplace, they would like to
ensure that the taxicab driver is not held liable for any
damages that might ensue. She reminded the committee that the
taxicab drivers will not be making any money for providing the
service of taking both the intoxicated person and his/her
vehicle home. In fact, she said, the "industry" is going to
absorb the $40 "fee" for this service.
MS. McDOWELL explained that the Anchorage Downtown Partnership
and CHARR will be working together to establish a network of
taxicab companies that will provide this service. There will be
a specific phone number to call, and certain drivers will be
assigned to pick up the intoxicated person and his/her
automobile. She added that the bars will have a disclaimer
notice posted regarding release from liability for the drivers.
One taxicab driver will take the intoxicated person home, and
the other taxicab driver will take the vehicle to the
intoxicated person's home, and nowhere else. The taxicab
drivers will bill "us," she said, so the "industry" will pay for
this service; hence no money needs to change hands between the
intoxicated person and the taxicab drivers, except any
gratuities.
REPRESENTATIVE JAMES inquired whether the "industry" would be in
any way liable for any accidents that might occur while
providing this service; her concern is that if the "industry" is
paying for it, it might be held liable for what occurs to, or
because of, the taxicab drivers.
MS. SEITZ offered that subsection (b) on page 2, lines 6-8,
addresses this possibility.
REPRESENTATIVE JAMES asked if a similar exemption from liability
could be created for the situations wherein the vehicle is not
drivable and has to be left someplace.
CHAIR ROKEBERG said he is not so certain that an exemption
should, or could, be made regarding damage to the vehicle if it
has to be left someplace other than the owner's home. He noted
that Version O "is intended to allow for recovery of any
damages, if there is an accident, against the existing insured
vehicle; it's only in instances where there is no insurance that
there would be no remedy for collection unless there was gross
negligence or recklessness." He remarked that he had not yet
considered the property damage aspect, aside from that which
results from an accident. He asked if what Ms. McDowell is
saying is that the taxicab drivers want some sort of immunity
from "broken down" vehicles.
Number 0669
MS. McDOWELL said yes; if the vehicle has to be left on the side
of the road and then towed away, the taxicab drivers did not
want to be responsible for paying the tow charges.
REPRESENTATIVE BERKOWITZ surmised that it doesn't seem as if it
would be a problem because the immunity offered by Version O
applies once [the driver] starts driving a vehicle away from the
licensed premises, and exists until [the driver] reaches the
residence, which is the objective; therefore, if the residence
is not reached and something happens in transit, [the driver] is
still immunized from responsibility. He suggested that this
particular provision could be altered to reflect that most
people don't park exactly at the licensed premises, perhaps by
inserting "or near [the]", after "from", on page 1, line 10, so
that it would then read "from or near the licensed premises;".
Representative Berkowitz also suggested that a conforming
amendment be adopted that would change any reference to
"intoxicated" to "under the influence".
Number 0948
REPRESENTATIVE BERKOWITZ, on that point, made a motion to adopt
Conceptual Amendment 1, such that on page 1, line 1; page 2,
line 1; page 2, line 5, in two places; and elsewhere as
appropriate, the word "intoxicated" is changed to "under the
influence". There being no objection, Conceptual Amendment 1
was adopted.
Number 0960
REPRESENTATIVE BERKOWITZ made a motion to adopt Conceptual
Amendment 2, such that on page 1, line 10, "or near the" is
inserted after "from". There being no objection, Conceptual
Amendment 2 was adopted.
REPRESENTATIVE BERKOWITZ noted that nowhere in Version O are
taxicab companies given any kind of an "insurance break" for
providing this service; he added that this is an issue that
should be considered.
Number 1037
REPRESENTATIVE JAMES moved to report CSSSHB 68, version 22-
LS0300\O, Ford, 4/6/01, as amended, out of committee with
individual recommendations and the accompanying fiscal notes.
There being no objection, CSSSHB 68(JUD) was reported from the
House Judiciary Standing Committee.
HB 67 - MOTOR VEHICLE REGISTRATION/INSURANCE
Number 1063
CHAIR ROKEBERG announced that the next order of business would
be HOUSE BILL NO. 67, "An Act requiring proof of motor vehicle
insurance in order to register a motor vehicle; and relating to
motor vehicle liability insurance for taxicabs." [Before the
committee was CSHB 67(L&C).]
Number 1086
JANET SEITZ, Staff to Representative Norman Rokeberg, Alaska
State Legislature, explained that the proposed committee
substitute (CS) for HB 68, version 22-LS0299\J, Ford, 4/4/01,
merely establishes minimum requirements for taxicab insurance.
She added that Version J has lower requirements than the
previous version because of concerns expressed by some of the
taxicab companies.
CHAIR ROKEBERG added that his research indicates that currently
the state does not require insurance for taxicabs.
Number 1143
CHAIR ROKEBERG made a motion to adopt the proposed CS for HB 68,
version 22-LS0299\J, Ford, 4/4/01, as a work draft.
Number 1147
REPRESENTATIVE BERKOWITZ objected for the purpose of discussing
the distinctions between Version J and CSHB 67(L&C).
MS. SEITZ explained that in CSHB 67(L&C), the limit for coverage
was set at $300,000 for the bodily injury or death of one person
in one accident (in Version J it is set at $100,000); at
$500,000 for the bodily injury or death of two or more persons
in one accident (in Version J it is set at $300,000); and at
$100,000 for injury to or destruction of property (in Version J
it is set at $50,000). She again said that this change is a
result of concerns expressed by the taxicab companies. She
noted that in some areas of Alaska, local ordinances require
insurance for taxicabs; she also noted that included in the
members' packets is a chart detailing these specific local
requirements.
REPRESENTATIVE BERKOWITZ requested that HB 67 be held over until
the next scheduled meeting.
REPRESENTATIVE JAMES commented that if there is not insurance
available specifically for taxicabs, then there should not be
taxicabs [operating]. She said she was under the impression
that there were laws requiring all vehicles to be insured,
regardless of whether the vehicle was owned by a company or a
person.
CHAIR ROKEBERG added that this lack of insurance requirements is
an "obvious hole in our statutes."
[HB 67 was held over, with the adoption of Version J as a work
draft pending.]
ADJOURNMENT
Number 1284
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:27 p.m.
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