04/17/2002 01:10 PM House JUD
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ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
April 17, 2002
1:10 p.m.
MEMBERS PRESENT
Representative Norman Rokeberg, Chair
Representative Jeannette James
Representative John Coghill
Representative Kevin Meyer
Representative Ethan Berkowitz
MEMBERS ABSENT
Representative Scott Ogan, Vice Chair
Representative Albert Kookesh
COMMITTEE CALENDAR
HOUSE BILL NO. 350
"An Act relating to terroristic threatening."
- MOVED CSHB 350(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 499
"An Act relating to the sale, lease, exchange, or other
disposition of business property and assets."
- HEARD AND HELD
CONFIRMATION HEARING
Board Of Governors Of The Alaska Bar
Sheila Selkregg - Anchorage
- CONFIRMATION HEARING POSTPONED
PREVIOUS ACTION
BILL: HB 350
SHORT TITLE:TERRORISTIC THREATS
SPONSOR(S): REPRESENTATIVE(S)MCGUIRE
Jrn-Date Jrn-Page Action
01/23/02 2040 (H) READ THE FIRST TIME -
REFERRALS
01/23/02 2040 (H) TRA, JUD
02/19/02 (H) TRA AT 1:15 PM CAPITOL 17
02/19/02 (H) Moved CSHB 350(TRA) Out of
Committee -- Time Change --
02/19/02 (H) MINUTE(TRA)
02/20/02 2334 (H) TRA RPT CS(TRA) NT 5NR 1AM
02/20/02 2334 (H) NR: SCALZI, OGAN, KOOKESH,
MASEK,
02/20/02 2334 (H) KOHRING; AM: WILSON
02/20/02 2335 (H) FN1: ZERO(CRT)
02/20/02 2335 (H) FN2: INDETERMINATE(ADM)
02/20/02 2335 (H) FN3: INDETERMINATE(LAW)
02/20/02 2335 (H) REFERRED TO JUDICIARY
02/20/02 2348 (H) FIN REFERRAL ADDED AFTER JUD
02/27/02 (H) JUD AT 1:00 PM CAPITOL 120
02/27/02 (H) Heard & Held
02/27/02 (H) MINUTE(JUD)
02/27/02 (H) MINUTE(JUD)
04/17/02 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 499
SHORT TITLE:DISPOSITION OF BUSINESS ASSETS
SPONSOR(S): JUDICIARY
Jrn-Date Jrn-Page Action
02/27/02 2407 (H) READ THE FIRST TIME -
REFERRALS
02/27/02 2407 (H) JUD
02/27/02 2407 (H) REFERRED TO JUDICIARY
03/15/02 (H) JUD AT 1:00 PM CAPITOL 120
03/15/02 (H) Heard & Held
MINUTE(JUD)
04/05/02 (H) JUD AT 1:00 PM CAPITOL 120
04/05/02 (H) Heard & Held
MINUTE(JUD)
04/17/02 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
REPRESENTATIVE LESIL McGUIRE
Alaska State Legislature
Capitol Building, Room 418
Juneau, Alaska 99801
POSITION STATEMENT: Sponsor of HB 350.
HEATHER M. NOBREGA, Staff
to Representative Norman Rokeberg
House Judiciary Standing Committee
Alaska State Legislature
Capitol Building, Room 118
Juneau, Alaska 99801
POSITION STATEMENT: Responded to questions regarding the
proposed CS for HB 350.
STEVE CONN
Alaska Public Interest Research Group (AkPIRG)
601 West 18th Avenue
Anchorage, Alaska 99501
POSITION STATEMENT: Expressed concern with HB 350.
ANNE CARPENETI, Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law (DOL)
PO Box 110300
Juneau, Alaska 99811-0300
POSITION STATEMENT: Assisted with the presentation of the
proposed CS for HB 350 and responded to questions.
ACTION NARRATIVE
TAPE 02-50, SIDE A
Number 0001
CHAIR NORMAN ROKEBERG called the House Judiciary Standing
Committee meeting to order at 1:10 p.m. [stated as 2:10 p.m.].
Representatives Rokeberg, James, Coghill, and Meyer were present
at the call to order. Representative Berkowitz arrived as the
meeting was in progress.
HB 350 - TERRORISTIC THREATS
[Contains mention that HB 350 and HB 328 have been combined into
a committee substitute (CS) for HB 350; contains references to
HB 325.]
Number 0070
CHAIR ROKEBERG announced that the first order of business would
be HOUSE BILL NO. 350, "An Act relating to terroristic
threatening." [Before the committee was CSHB 350(TRA).]
Number 0076
REPRESENTATIVE LESIL McGUIRE, Alaska State Legislature, sponsor,
mentioned that she and staff from her office, from
Representative Berkowitz's office, and from Representative
Rokeberg's office have been working with Anne Carpeneti from the
Department of Law (DOL) to create a committee substitute (CS)
that incorporates aspects of both HB 350 and HB 328, which are
similar in intent. She posited that this proposed CS would
address the statutory changes needed as a result of the
terrorist attacks of September 11, 2001.
REPRESENTATIVE McGUIRE explained that the concept of [CSHB
350(TRA)] has been incorporated into Sections 6-8 and 17-18 of
the proposed CS. She noted that language pertaining to schedule
delays and threats has been inserted into Sections 17 and 18 of
the proposed CS. In addition, the proposed CS creates a new
statute - AS 11.56.807 - which adds an additional level of
terroristic threatening [in the first degree].
REPRESENTATIVE McGUIRE, in closing, remarked that while there is
a tenuous balance between protecting an individual's rights and
living in a police state, there is also a need to recognize the
new threats to security arising from the terrorist attacks of
September 11th. She reiterated that it was both her intent and
the governor's, via HB 350 and HB 328, to take a comprehensive
look at, and possibly update, Alaska's statutes regarding this
issue.
Number 0281
HEATHER M. NOBREGA, Staff to Representative Norman Rokeberg,
House Judiciary Standing Committee, Alaska State Legislature, in
response to a question, mentioned that although there would be
fiscal notes accompanying the proposed CS, they were unavailable
at this time.
Number 0319
REPRESENTATIVE JAMES moved to adopt the proposed committee
substitute (CS) for HB 350, version 22-LS1300\B, Luckhaupt,
4/15/02, as a work draft. There being no objection, Version B
was before the committee.
Number 0373
STEVE CONN, Alaska Public Interest Research Group (AkPIRG),
testified via teleconference and mentioned his concern that HB
350 could allow a political act to be interpreted in such a way
as to trigger provisions of HB 325 that allow the governor to
invoke emergency powers. For example, he said, a person could
make a false report regarding the threat of an avalanche that
results in the delay of a bus going from Anchorage to Seward,
and if the governor invokes emergency powers via HB 325, it
could result in the suspension of a variety of legal rights
including property rights. He opined that [HB 350] creates a
vague crime that would be open for challenge, and that the word
"terroristic" is extremely unhelpful.
MR. CONN, in response to questions, said that he was looking at
language in Section 2 [of CSHB 350(TRA)] which provides that
under AS 11.56.810:
(a) A person commits the crime of terroristic
threatening if the person knowingly makes a false
report that a circumstance (1) dangerous to human life
exists or is about to exist and ... (D) disrupts the
schedule of an entity providing transportation
services for persons or property; (2) exists or is
about to exist that is dangerous to the proper or safe
functioning of an oil or gas pipeline....
REPRESENTATIVE BERKOWITZ indicated that [Section 18] of Version
B has similar language although it has been changed to say:
(a) A person commits the crime of terroristic
threatening in the second degree of the person
knowingly makes a false report that a circumstance (1)
dangerous to human life exists or is about to exist
and ... (E) substantially disrupts the schedule of an
entity providing transportation services for persons
or property; or (2) exists or is about to exist that
is dangerous to the proper or safe function of an oil
or gas pipeline....
MR. CONN, acknowledging that he does not yet have Version B at
his location, opined that language in [CSHB 350(TRA)] "ill
serves the public need by diminishing terrorism to an
individualized crime, rather [than] one that is, effectively, an
attack on the state, on the community."
Number 0766
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law (DOL),
surmised that Mr. Conn's comments apply to current law, too,
since terroristic threatening, in present law, prohibits a
person [from] making a false report that a circumstance
dangerous to human life exists or is about to exist and causes
various results, for example, placing a person in fear, causing
evacuation of a building, [or causing a serious public
inconvenience]. Version B, she noted, adds the crime of
substantially disrupting the schedule of an entity providing
transportation services. Therefore, she opined, Version B is
not making any change in the law that [would warrant Mr. Conn's
concerns].
REPRESENTATIVE BERKOWITZ argued, however, that under current
law, causing a serious public inconvenience is a class C felony,
whereas under Section 17 of Version B, causing a serious public
inconvenience [could be] a class B felony. He noted, too, that
Version B adds the new component of substantially disrupting the
schedule [of an entity providing transportation services].
REPRESENTATIVE COGHILL pointed out that in Version B, [this new
component pertaining to substantially disrupting the schedule of
an entity providing transportation services] would still be a
class C felony.
REPRESENTATIVE BERKOWITZ noted that under terroristic
threatening in the first degree - Section 17, page 9, line 4 -
it is a crime to cause serious public inconvenience.
MS. CARPENETI pointed out that the new terroristic threatening
in the first degree [Section 17] involves different conduct than
the current statute, whereas terroristic threatening in the
second degree, as proposed by Section 18, remains a class C
felony and adds new ways of committing this crime [including
substantially disrupting the schedule of an entity providing
transportation services].
REPRESENTATIVE BERKOWITZ suggested that in Section 18, it would
be sufficient to have one of the components be causing serious
public inconvenience, rather than add language pertaining to
substantially disrupting the schedule [of an entity providing
transportation services].
CHAIR ROKEBERG noted that the language "causes serious public
inconvenience" is in both Section 17 and Section 18.
REPRESENTATIVE BERKOWITZ said that he does not understand what
[subparagraph] (E) adds to Section 18.
Number 0949
REPRESENTATIVE McGUIRE pointed out, for example, that the
original qualifier of Section 17 - the predicate element - is:
(a) A person commits the act of terroristic threatening in
the first degree if the person sends, delivers, or attempts
to send or deliver a package or any other item containing a
biological or chemical substance or an imitation biological
or chemical substance with intent to....
That then modifies the phrase "causes serious public
inconvenience". She offered that it is a policy decision
whether to additionally have that qualifier modify the phrase
that begins "substantially disrupts the schedule of an entity".
REPRESENTATIVE BERKOWITZ, referring to Section 18
[subparagraphs] (C) and (E), offered that there could
potentially be a situation in which substantial disruption of a
schedule does not rise to the level of serious public
inconvenience. The language is written disjunctively, he added.
MS. CARPENETI said that Representative Berkowitz is correct; the
language in Section 18 is written in the disjunctive.
Therefore, she noted, the issue is whether causing public
inconvenience will encompass every instance of substantially
disrupting the schedule of an entity providing transportation
services for persons or property. She recommended that the
language currently in Section 18 of Version B remain as is in
order to cover circumstances in which the substantial disruption
of public transportation does not cause widespread public
inconvenience.
REPRESENTATIVE McGUIRE said that it is a policy decision whether
to include both components as being worthy of rising to the
level [of a class C felony]. She pointed out that the qualifier
for Section 18 is "knowingly making a false report that a
circumstance ... dangerous to human life exists or is about to
exist and", so there are some elements that have to be met
first, before any of the components becomes a class C felony.
MR. CONN indicated that he has received a copy of Version B. He
relayed that one of his concerns is that at the same time HB 350
is moving forward as an amendment to the criminal law, HB 325,
which adds the term "terrorist attack" to language pertaining to
an actual enemy attack, will trigger the imposition of martial
law in Alaska and the subsequent suspension of all rights. He
remarked that the language in HB 350 regarding terrorism could
become the defining language used as the basis for invoking
provisions of HB 325.
Number 1173
MR. CONN pointed out that the current statutory language, which
HB 350 proposes to modify, "relates to pre-September 11th
thinking about the terror evoked in any single victim by certain
acts of the perpetrator." In contrast, HB 325 introduces into
Alaska law, coincidental with the word "enemy", "a kind of non-
state domestic entity ... whose threat can be such that all laws
are suspended." He opined that public policy demands that HB
350 and HB 325 be read jointly so as not to do great harm to HB
325.
REPRESENTATIVE McGUIRE, in response, offered that saying that
someone commits a crime of terroristic threatening does not
necessarily mean that that person is a terrorist. Terroristic
threatening is already a crime under current statutes, so HB 350
would not be setting any precedents. She posited HB 350 is very
narrow and pointed out that the individual components of
Sections 17 and 18 rely on the predicate elements of their
respective subsections (a). She remarked that HB 325 is a
separate issue but assured Mr. Conn that she has noted his
concerns and would try to address them should HB 325 make it to
the House floor for debate.
CHAIR ROKEBERG remarked that Mr. Conn raises an interesting
point, that it should be clearer that there is disconnection
between HB 350 and HB 325. He also said that he did not
necessarily agree with Representative McGuire that defining the
crime of terroristic threatening does not also define what a
terrorist is.
CHAIR ROKEBERG closed public [testimony] on HB 350.
REPRESENTATIVE BERKOWITZ, referring to Section 16, lines 20-22,
asked why that language has been added to AS 11.56.800(a)(3).
MS. CARPENETI explained that it was added as a precautionary
measure to make it clear that if conduct arises to the level of
terroristic threatening in the second degree, it should be
charged under that. In response to a question, she acknowledged
that depending on the facts, such conduct might possibly be
considered a lesser included offense under AS 11.56.800.
REPRESENTATIVE BERKOWITZ asked whether there have been any
problems in the past that require adding language to the
criminal code, specifically to AS 11.56.800. He remarked that
he doesn't like to add language to the criminal code without a
demonstrable need to do so. He asked what the addition of the
new language proposed by Section 16 adds to the criminal code,
or what it corrects.
MS. CARPENETI said that in drafting Version B, [she and the
sponsor] wanted to make it clear that conduct covered under AS
11.56.810 - terroristic threatening in the second degree -
should be charged under that provision. Thus, addition of
language in Section 16 would ensure that if there were any
confusion that certain conduct came under both AS 11.56.800 and
AS 11.56.810, the conduct would be charged under the latter.
Number 1490
REPRESENTATIVE BERKOWITZ made a motion to adopt Amendment 1,
which would delete [subparagraph] (E) from Section 18.
Number 1499
CHAIR ROKEBERG objected.
REPRESENTATIVE BERKOWITZ, in defense of Amendment 1, opined that
"causes serious public inconvenience" would include the
substantial disruption of the schedule of an entity providing
transportation, which, by contrast, could have no practical
effect if, for example, a bus or ferry was delayed but was not
carrying any passengers.
CHAIR ROKEBERG said he disagreed.
REPRESENTATIVE McGUIRE opined that it is important to retain the
language in [subparagraph] (E) in case it could apply to certain
circumstances.
REPRESENTATIVE BERKOWITZ opined that [subparagraph] (E) is
superfluous, and that retaining it would be an invitation for
trouble.
Number 1615
A roll call vote was taken. Representatives Berkowitz voted for
Amendment 1. Representatives Meyer, James, Coghill, and
Rokeberg voted against it. Therefore, Amendment 1 failed by a
vote of 1-4.
Number 1623
REPRESENTATIVE JAMES moved to report the proposed committee
substitute (CS) for HB 350, version 22-LS1300\B, Luckhaupt,
4/15/02, out of committee with individual recommendations and
the accompanying fiscal notes. There being no objection, CSHB
350(JUD) was reported from the House Judiciary Standing
Committee.
HB 499 - DISPOSITION OF BUSINESS ASSETS
Number 1640
CHAIR ROKEBERG announced that the last order of business would
be HOUSE BILL NO. 499, "An Act relating to the sale, lease,
exchange, or other disposition of business property and assets."
[Before the committee was committee substitute (CS) for HB 499,
version 22-LS1490\S, Bannister, 4/5/02, which was adopted as a
work draft on 4/5/02.]
CHAIR ROKEBERG asked members to comment on the retroactivity
provision of Version S.
REPRESENTATIVE COGHILL said he that he has concerns with that
provision.
CHAIR ROKEBERG said that he would be willing to delete the
retroactivity provision - Section 9 on page 7 - in order to move
the bill.
REPRESENTATIVE MEYER remarked that in a conversation he'd had
with Mr. Theodore M. Pease, Jr., attorney at law, regarding the
retroactivity provision, Mr. Pease "had a pretty good defense"
for it.
CHAIR ROKEBERG said that he agreed with Mr. Pease but [did not
want to overlook members' concerns].
REPRESENTATIVE JAMES said that she, too, agreed with Mr. Pease.
REPRESENTATIVE BERKOWITZ indicated that he, in addition to
Representative Coghill, has some serious concerns with the
retroactivity provision.
CHAIR ROKEBERG said that he wanted to move this bill from
committee, and that he is willing to work on it as it continues
in the process.
REPRESENTATIVE MEYER said that he would rather have the bill
remain as is.
REPRESENTATIVE BERKOWITZ stated that he would like to remove the
retroactivity provision.
REPRESENTATIVE JAMES said that [she] objects to taking it out.
Number 1780
CHAIR ROKEBERG announced that HB 499 would be held over.
ADJOURNMENT
Number 1818
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 1:48 p.m.
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