03/31/2004 01:20 PM House JUD
| Audio | Topic |
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+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 31, 2004
1:20 p.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson, Vice Chair
Representative Jim Holm
Representative Dan Ogg
Representative Ralph Samuels
Representative Les Gara
Representative Max Gruenberg
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 474
"An Act relating to civil liability associated with aircraft
runways, airfields, and landing areas."
- MOVED CSHB 474(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 339
"An Act relating to negative option plans for sales, to charges
for goods or services after a trial period, and to acts that are
unlawful as unfair trade practices."
- MOVED CSHB 339(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 452
"An Act relating to licensing and regulation of sport fishing
services operators and fishing guides; and providing for an
effective date."
- MOVED CSHB 452(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 484
"An Act imposing a correctional facility surcharge on persons
convicted of a crime under state law, and on persons whose
probation is revoked; relating to fees and expenses for
interstate transfer of probation or parole; and providing for an
effective date."
- MOVED CSHB 484(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 439
"An Act relating to the authority to take oaths, affirmations,
and acknowledgments in the state; relating to notaries public;
relating to fees for issuing certificates with the seal of the
state affixed; and providing for an effective date."
- MOVED CSHB 439(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 244
"An Act relating to the Code of Criminal Procedure; relating to
defenses, affirmative defenses, and justifications to certain
criminal acts; relating to rights of prisoners after arrest;
relating to discovery, immunity from prosecution, notice of
defenses, admissibility of certain evidence, and right to
representation in criminal proceedings; relating to sentencing,
probation, and discretionary parole; amending Rule 16, Alaska
Rules of Criminal Procedure, and Rules 404, 412, 609, and 803,
Alaska Rules of Evidence; and providing for an effective date."
- HEARD AND HELD
HOUSE BILL NO. 336
"An Act limiting recovery of civil damages by an uninsured
driver; and providing for an effective date."
- BILL HEARING POSTPONED
HOUSE BILL NO. 430
"An Act relating to employees under 21 years of age in the
premises of hotels, restaurants, and eating places that are
licensed to sell, serve, deliver, or dispense alcoholic
beverages."
- BILL HEARING POSTPONED
PREVIOUS COMMITTEE ACTION
BILL: HB 474
SHORT TITLE: LIABILITY FOR AIRPORTS AND AIRSTRIPS
SPONSOR(S): REPRESENTATIVE(S) HOLM
02/16/04 (H) READ THE FIRST TIME - REFERRALS
02/16/04 (H) JUD
03/26/04 (H) JUD AT 1:00 PM CAPITOL 120
03/26/04 (H) Heard & Held
03/26/04 (H) MINUTE(JUD)
03/29/04 (H) JUD AT 1:00 PM CAPITOL 120
03/29/04 (H) Bill Postponed To 3/30/04
03/30/04 (H) JUD AT 1:00 PM CAPITOL 120
03/30/04 (H) Scheduled But Not Heard
03/31/04 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 339
SHORT TITLE: TRADE PRACTICES
SPONSOR(S): REPRESENTATIVE(S) MEYER
01/12/04 (H) PREFILE RELEASED 1/2/04
01/12/04 (H) READ THE FIRST TIME - REFERRALS
01/12/04 (H) L&C, JUD
02/02/04 (H) L&C AT 3:15 PM CAPITOL 17
02/02/04 (H) Moved CSHB 339(L&C) Out of Committee
02/02/04 (H) MINUTE(L&C)
02/05/04 (H) L&C RPT CS(L&C) NT 4DP 2NR 1AM
02/05/04 (H) DP: CRAWFORD, LYNN, DAHLSTROM,
02/05/04 (H) ANDERSON; NR: GATTO, ROKEBERG;
02/05/04 (H) AM: GUTTENBERG
03/05/04 (H) JUD AT 1:00 PM CAPITOL 120
03/05/04 (H) -- Meeting Postponed to 3/16/04 --
03/16/04 (H) JUD AT 1:00 PM CAPITOL 120
03/16/04 (H) Heard & Held
03/16/04 (H) MINUTE(JUD)
03/29/04 (H) JUD AT 1:00 PM CAPITOL 120
03/29/04 (H) Bill Postponed To 3/30/04
03/30/04 (H) JUD AT 1:00 PM CAPITOL 120
03/30/04 (H) Scheduled But Not Heard
03/31/04 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 452
SHORT TITLE: GUIDED SPORT FISHING
SPONSOR(S): REPRESENTATIVE(S) HEINZE
02/16/04 (H) READ THE FIRST TIME - REFERRALS
02/16/04 (H) L&C, JUD, FIN
03/17/04 (H) L&C AT 3:15 PM CAPITOL 17
03/17/04 (H) Heard & Held
03/17/04 (H) MINUTE(L&C)
03/19/04 (H) L&C AT 3:15 PM CAPITOL 17
03/19/04 (H) Moved CSHB 452(L&C) Out of Committee
03/19/04 (H) MINUTE(L&C)
03/22/04 (H) L&C RPT CS(L&C) NT 1DP 3NR 1AM
03/22/04 (H) DP: LYNN; NR: CRAWFORD, GATTO,
03/22/04 (H) ANDERSON; AM: ROKEBERG
03/31/04 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 484
SHORT TITLE: CORRECTIONS: FEES/SURCHARGE
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
02/16/04 (H) READ THE FIRST TIME - REFERRALS
02/16/04 (H) JUD, FIN
03/29/04 (H) JUD AT 1:00 PM CAPITOL 120
03/29/04 (H) Bill Postponed To 3/30/04
03/30/04 (H) JUD AT 1:00 PM CAPITOL 120
03/30/04 (H) Scheduled But Not Heard
03/31/04 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 439
SHORT TITLE: OATHS; NOTARIES PUBLIC; STATE SEAL
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
02/05/04 (H) READ THE FIRST TIME - REFERRALS
02/05/04 (H) STA, JUD, FIN
03/04/04 (H) STA AT 8:00 AM CAPITOL 102
03/04/04 (H) <Bill Hearing Postponed to Mon. 3/8/04>
03/08/04 (H) STA AT 8:00 AM CAPITOL 102
03/08/04 (H) Heard & Held
03/08/04 (H) MINUTE(STA)
03/18/04 (H) STA AT 8:00 AM CAPITOL 102
03/18/04 (H) Scheduled But Not Heard
03/19/04 (H) STA AT 8:00 AM CAPITOL 102
03/19/04 (H) Moved CSHB 439(STA) Out of Committee
03/19/04 (H) MINUTE(STA)
03/24/04 (H) STA RPT CS(STA) NT 2DP 3NR
03/24/04 (H) DP: GRUENBERG, LYNN; NR: SEATON,
03/24/04 (H) COGHILL, WEYHRAUCH
03/29/04 (H) JUD AT 1:00 PM CAPITOL 120
03/29/04 (H) Bill Postponed To 3/30/04
03/30/04 (H) JUD AT 1:00 PM CAPITOL 120
03/30/04 (H) Scheduled But Not Heard
03/31/04 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 244
SHORT TITLE: CRIMINAL LAW/SENTENCING/PROBATION/PAROLE
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
04/04/03 (H) READ THE FIRST TIME - REFERRALS
04/04/03 (H) JUD, FIN
04/14/03 (H) JUD AT 1:00 PM CAPITOL 120
04/14/03 (H) Heard & Held
04/14/03 (H) MINUTE(JUD)
04/25/03 (H) JUD AT 1:00 PM CAPITOL 120
04/25/03 (H) -- Meeting Postponed --
05/07/03 (H) JUD AT 1:00 PM CAPITOL 120
05/07/03 (H) Scheduled But Not Heard
05/08/03 (H) JUD AT 3:30 PM CAPITOL 120
05/08/03 (H) Heard & Held
05/08/03 (H) MINUTE(JUD)
05/09/03 (H) JUD AT 1:00 PM CAPITOL 120
05/09/03 (H) Moved CSHB 244(JUD) Out of Committee
05/09/03 (H) MINUTE(JUD)
05/12/03 (H) JUD RPT CS(JUD) NT 1DP 1DNP 4NR
05/12/03 (H) DP: SAMUELS; DNP: GARA; NR: HOLM,
05/12/03 (H) OGG, GRUENBERG, MCGUIRE
05/13/03 (H) FIN AT 1:30 PM HOUSE FINANCE 519
05/13/03 (H) -- Meeting Canceled --
05/14/03 (H) FIN AT 8:30 AM HOUSE FINANCE 519
05/14/03 (H) Heard & Held
05/14/03 (H) MINUTE(FIN)
05/15/03 (H) FIN AT 8:30 AM HOUSE FINANCE 519
05/15/03 (H) Moved CSHB 244(JUD) Out of Committee
05/15/03 (H) MINUTE(FIN)
05/15/03 (H) FIN RPT CS(JUD) NT 2DNP 4NR 4AM
05/15/03 (H) DNP: KERTTULA, FOSTER; NR: MOSES,
05/15/03 (H) CHENAULT, HARRIS, WILLIAMS; AM: HAWKER,
05/15/03 (H) STOLTZE, BERKOWITZ, WHITAKER
05/15/03 (H) RETURNED TO JUD COMMITTEE
05/15/03 (H) IN JUDICIARY
03/19/04 (H) JUD AT 1:00 PM CAPITOL 120
03/19/04 (H) Heard & Held
03/19/04 (H) MINUTE(JUD)
03/24/04 (H) JUD AT 1:00 PM CAPITOL 120
03/24/04 (H) Heard & Held
03/24/04 (H) MINUTE(JUD)
03/30/04 (H) JUD AT 1:00 PM CAPITOL 120
03/30/04 (H) Heard & Held
03/30/04 (H) MINUTE(JUD)
03/30/04 (H) JUD AT 3:00 PM CAPITOL 120
03/30/04 (H) -- Meeting Canceled --
03/31/04 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
SUZANNE CUNNINGHAM, Staff
to Representative Kevin Meyer
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented CSHB 339, Version U, on behalf of
the sponsor, Representative Meyer.
REPRESENTATIVE KEVIN MEYER
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of HB 339.
JON BITTNER, Staff
to Representative Cheryll Heinze
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Assisted with the presentation of HB 452,
Version Q, on behalf of the sponsor, Representative Heinze.
REPRESENTATIVE CHERYLL HEINZE
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of HB 452.
JAMES E. PRESTON, Owner
Big Jim's Charters
Auke Bay, Alaska
POSITION STATEMENT: During discussion of HB 452 testified in
favor of passing the CS, raised a concern, and suggested a
change.
JOEL HANSON
The Boat Company, LTD,
Sitka, Alaska
POSITION STATEMENT: During discussion of HB 452 raised concerns
and suggested changes.
ROB BENTZ, Deputy Director
Division of Sport Fish
Alaska Department of Fish & Game (ADF&G)
Juneau, Alaska
POSITION STATEMENT: Assisted with the presentation of HB 452 by
responding to comments and questions.
DOUG VINCENT-LANG, Assistant Director
Division of Sport Fish
Alaska Department of Fish & Game (ADF&G)
Anchorage, Alaska
POSITION STATEMENT: Assisted with the presentation of HB 452 by
responding to comments and questions.
PORTIA PARKER, Deputy Commissioner
Office of the Commissioner - Juneau
Department of Corrections (DOC)
Juneau, Alaska
POSITION STATEMENT: Presented HB 484 on behalf of the
administration.
BARBARA BRINK, Director
Central Office
Public Defender Agency (PDA)
Department of Administration (DOA)
Anchorage, Alaska
POSITION STATEMENT: Relayed the PDA's concerns regarding HB
484.
TOM GEORGE, Alaska Regional Representative
Aircraft Owners and Pilots Association (AOPA)
Fairbanks, Alaska
POSITION STATEMENT: Provided a comment during discussion of HB
474.
ANNETTE KREITZER, Chief of Staff
Office of the Lieutenant Governor
Juneau, Alaska
POSITION STATEMENT: Presented HB 439 on behalf of the
administration.
SCOTT CLARK, Notary Commission Administrator
Office of the Lieutenant Governor
Juneau, Alaska
POSITION STATEMENT: Provided a comment during discussion of HB
439.
JOSHUA FINK, Public Advocate
Anchorage Office
Office of Public Advocacy (OPA)
Department of Administration (DOA)
Anchorage, Alaska
POSITION STATEMENT: Relayed concerns about the proposed
committee substitute (CS) for HB 244 and responded to questions.
SUSAN A. PARKES, Deputy Attorney General
Central Office
Criminal Division
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: Provided comments and responded to
questions during discussion of the proposed committee substitute
(CS) for HB 244.
ACTION NARRATIVE
TAPE 04-54, SIDE A
Number 0001
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 1:20 p.m. Representatives
McGuire, Holm, Ogg, Samuels, Gara, and Gruenberg were present at
the call to order. Representative Anderson arrived as the
meeting was in progress.
HB 474 - LIABILITY FOR AIRPORTS AND AIRSTRIPS
Number 0140
CHAIR McGUIRE announced that the first order of business would
be HOUSE BILL NO. 474, "An Act relating to civil liability
associated with aircraft runways, airfields, and landing areas."
[Before the committee was the proposed committee substitute (CS)
for HB 474, Version 23-LS1745\D, Bullock, 3/23/04, which was
adopted as a work draft on 3/26/04; on 3/26/04 an Amendment 1 to
Version D was adopted, but at the request of Amendment 1's
sponsor, the committee, later in the meeting on 3/26/04,
rescinded its action in adopting Amendment 1.]
REPRESENTATIVE HOLM, speaking as the sponsor, noted that he has
a proposed amendment for HB 474, a new Amendment 1, labeled 23-
LS1745\D.1, Bullock, 3/31/04, which read:
Page 1, line 6:
Delete "A [NATURAL]"
Insert "Except as provided in (c) of this
section, a [A NATURAL]"
Page 2, following line 9:
Insert a new bill section to read:
"* Sec. 2. AS 09.65.093 is amended by adding a new
subsection to read:
(c) The immunity from civil liability under (a)
of this section does not apply to an owner or operator
of an aircraft runway, airfield, or landing area with
respect to the provider of flight services under
contract with the owner or operator."
Number 0185
REPRESENTATIVE HOLM said he would like to "put ... forward"
Amendment 1 because it addresses one of the issues raised at the
bill's last hearing.
CHAIR McGUIRE, after ascertaining that no one wished to testify
on the bill and that a representative from the Aircraft Owners
and Pilots Association (AOPA) was available to answer questions,
closed public testimony on HB 474.
REPRESENTATIVE GRUENBERG said he has an amendment to Amendment 1
that will clarify Amendment 1.
REPRESENTATIVE HOLM said that Amendment 1 would address the
issue of whether someone who contracts another to land on an
airfield would be given immunity from liability. He added that
Amendment 1 proposes to "fix" this issue. He asked
Representative Samuels to comment.
REPRESENTATIVE SAMUELS said that his concern is that there are a
few airports that contract flying and he wanted to exclude from
the bill some of the larger runways. He noted that HB 474 does
not propose to change any of the standards already in current
law with regard to gross negligence, recklessness, or
intentional misconduct.
REPRESENTATIVE GARA pointed out that current law already exempts
owners of private airstrips who "run them voluntarily for no
money" unless they engage in exceptionally bad conduct such as
gross negligence, recklessness, or intentional misconduct. The
bill, he surmised, will extend that exemption from liability to
businesses that run airstrips, adding that he does have a
problem with doing such unless the scope of the bill is very
limited. He offered his belief that Amendment 1 will protect
airplane companies that contract with the owners of an airfield,
but will not protect people.
REPRESENTATIVE GARA, to illustrate his point, offered the
following hypothetical: "What if you're being flown into a ...
fishing lodge ... and you've arranged your own flight service in
...?" If for some reason a massive ditch has been dug across
the runway that the lodge owner is purportedly maintaining,
neither the person nor the flight company would know about that
hazard. In such a situation, neither the person flying in to
use the lodge nor the airplane company have a contract with the
lodge, and so would not be able to seek civil damages under
Amendment 1. He opined that both the bill and Amendment 1 are
flawed in this regard.
Number 0595
REPRESENTATIVE GARA offered what he termed a friendly amendment
to Amendment 1, to add at the end of Amendment 1, the words, "or
passenger" for the purpose of protecting not just the airplane
carrier but the passengers on the airplane carrier.
CHAIR McGUIRE announced that HB 474 would be set aside [with the
amendment to Amendment 1 left pending] for the purpose of
hearing the next [three bills]. [HB 474 was taken up again
later in the meeting.]
HB 339 - TRADE PRACTICES
Number 0618
CHAIR McGUIRE announced that the next order of business would be
HOUSE BILL NO. 339, "An Act relating to negative option plans
for sales, to charges for goods or services after a trial
period, and to acts that are unlawful as unfair trade
practices."
Number 0662
SUZANNE CUNNINGHAM, Staff to Representative Kevin Meyer, Alaska
State Legislature, testified on behalf of Representative Meyer,
sponsor of HB 339. She explained that on March 26, 2004,
committee members received the latest version of HB 339, Version
23-LS1265\U, Bannister, 3/26/04, as well as memorandums from
Legislative Legal and Research Services and Representative
Meyer. She explained that Version U encompasses the amendments
discussed at the bill's last hearing.
Number 0767
REPRESENTATIVE SAMUELS moved to adopt the proposed committee
substitute (CS) for HB 339, Version 23-LS1265\U, Bannister,
3/26/04, as the working document. There being no objection,
Version U was before the committee.
MS. CUNNINGHAM relayed that [Representative Meyer's] memorandum
accompanying Version U outlines the changes encompassed in that
version. In response to Representative Gruenberg, Ms.
Cunningham pointed out that Version U incorporates a definition
of "seller."
REPRESENTATIVE GRUENBERG surmised, "I gather that's not quite
the same as the UCC [Uniform Commercial Code] because it deals
with services also."
MS. CUNNINGHAM answered in the affirmative.
REPRESENTATIVE GARA turned attention to subsection (e) on page 2
of Version U, and noted his appreciation for incorporating the
change he had requested. He explained that if someone offers
something for a free trial period, then that [person or entity]
will have to send out an invoice before charging the consumer.
The invoice would provide instructions with regard to
cancellations. However, Version U specifies that this invoice
has to be provided at least 15 days before charging the
consumer's account rather than the 30 days he requested. He
opined that 15 days aren't enough. He likened [the 15-day
requirement] to how credit card bills arrive and are due
relatively soon after arrival, which results in people missing
the due date. Representative Gara requested changing the
timeframe to 21 days.
MS. CUNNINGHAM offered her belief that the Department of Law
changed the timeframe from 30 days to 15 days in order to be
more in line with the requirements of the Federal Trade
Commission, which requires 10 days. She viewed the matter as a
policy decision for the committee.
Number 0943
REPRESENTATIVE GRUENBERG highlighted that [Version U] changes
"express written consent" to "express verifiable consent", and
inquired as to the reasoning behind that change.
MS. CUNNINGHAM answered that the Department of Law made that
decision. She recalled that there was conversation with regard
to mandating that the entire conversation of telephonic sales be
recorded. There was also conversation with regard to
Representative Gara's amendment requiring [the seller] to send a
form on which the consumer checks a box that he/she understands
and will meet all the obligations specified for the free trial
period. The Department of Law's perspective with regard to
"express verifiable consent" was that the seller will always
have the burden of proving that consent was obtained from the
buyer.
REPRESENTATIVE GRUENBERG remarked that the law often favors
written documents because of the ease of proof, particularly in
consumer matters. He inquired as to how the consent that isn't
in writing will be verified.
Number 1062
REPRESENTATIVE KEVIN MEYER, Alaska State Legislature, sponsor,
said that he'd had the same question. He noted that Clyde (Ed)
Sniffen, Jr., Assistant Attorney General, Commercial/Fair
Businesses Section, Civil Division (Anchorage), Department of
Law, had wanted the "express verifiable consent" language. He
offered his belief that the Department of Law is comfortable
with the "express verifiable consent" language, which is used
elsewhere in statute.
MS. CUNNINGHAM informed the committee that under the federal
telemarketing sales rules, there are requirements for the
express oral authorization for telephonic sales to be recorded.
Therefore, she characterized [the "express verifiable consent"
language] as a compromise.
REPRESENTATIVE GRUENBERG said that he didn't know whether
"express verifiable consent" is a legally defined term.
CHAIR McGUIRE announced her desire to report this legislation
from committee today. She pointed out that there will be an
opportunity to speak with Mr. Sniffen before HB 339 reaches the
House floor. She mentioned that she trusted Mr. Sniffen
immensely.
REPRESENTATIVE GRUENBERG pointed out that "seller" is defined
twice [in Version U]. The definition of "seller" on page 3,
[lines 2-4], includes "... a person who engages in ... arranging
for a free trial period for goods and services." However, the
definition of "seller" [on page 3, line 31, through page 4, line
1] doesn't include the aforementioned language. He inquired as
to why that is.
MS. CUNNINGHAM explained that the definition under AS 45.45.920
pertains to the "seller" in the free trial period, whereas the
"seller" definition under AS 45.45.930 refers to the opt-out
marketing plans. The [definition of "seller" is included in
both] in order to be clear.
REPRESENTATIVE GRUENBERG returned to his earlier question with
regard to the "express verifiable consent" language. He
informed the committee that Black's Law Dictionary has two
definitions of "verify", one of which is a verification as is in
AS 09.63. However, the other definition of "verify" is as
follows: "To prove to be true; to confirm or establish the
truth or truthfulness of; to check or test the accuracy or
exactness of; to confirm or establish the authenticity of; to
authenticate; to maintain; to affirm; to support". He surmised
that the language "verifiable" means provable.
Number 1221
REPRESENTATIVE HOLM moved to report CSHB 339, 23-LS1265\U,
Bannister, 3/26/04, out of committee with individual
recommendations and the accompanying zero fiscal notes. There
being no objection, CSHB 339(JUD) was reported from the House
Judiciary Standing Committee.
HB 452 - GUIDED SPORT FISHING
Number 1250
CHAIR McGUIRE announced that the next order of business would be
HOUSE BILL NO. 452, "An Act relating to licensing and regulation
of sport fishing services operators and fishing guides; and
providing for an effective date." [Before the committee was
CSHB 452(L&C).]
Number 1290
JON BITTNER, Staff to Representative Cheryll Heinze, Alaska
State Legislature, sponsor, noted, on behalf of Representative
Heinze, that the committee has in its possession a proposed
committee substitute (CS).
Number 1314
REPRESENTATIVE GRUENBERG moved to adopt the proposed CS for HB
452, Version 23-LS1619\Q, Utermohle, 3/29/04, as the work draft.
There being no objection, Version Q was before the committee.
Number 1319
REPRESENTATIVE CHERYLL HEINZE, Alaska State Legislature,
sponsor, relayed that she'd at one time owned a sport fish
guiding business, and offered that her experiences have given
her an insider's perspective on the needs and issues of the
sport fishing industry. She said that HB 452 deals with three
major needs in the "sport guide" industry: one, standardized
consumer safety; two, increased information gathering; and
three, improved consumer confidence. By mandating certain
minimum requirements for sport fish guides and operators, such
as first-aid training and liability insurance, people can be
sure that guides and operators are trained and protected in the
event of an emergency.
REPRESENTATIVE HEINZE said that the need for basic reporting
shouldn't be underestimated, and by providing the Alaska
Department of Fish & Game (ADF&G) with comprehensive information
on the number of fish caught, the effort expended, the number of
boats used, and general location where the fish were caught,
then the ADF&G will be able to make more informed decisions that
protect fish stocks and their habitats, and maximize their
current and future yields. Such reporting benefits not just the
sport fishing industry, but also ensures that Alaska fulfills
its constitutional mandate to manage its resources for their
maximum sustained yield. Thirdly, consumer confidence is
improved by the guarantee of certain standards regarding
protection and training that guides would have.
REPRESENTATIVE HEINZE, in conclusion, said that the sport
fishing industry is an important and driving factor in Alaska's
economy; such a vital industry needs to be protected and
supported in order to ensure that it remains that way. She
urged the committee to support HB 452.
Number 1440
JAMES E. PRESTON, Owner, Big Jim's Charters, said that he wishes
to speak in favor of passing the CS for HB 452, and that he
agrees with the sponsor's comments regarding the need for the
legislation; this is a bill that is a long time in coming and is
very similar to a bill sponsored by then-Representative
Austerman in the 20th legislature. He relayed, however, that he
does not yet have Version Q in his possession, and so his
comments relate to CSHB 452(L&C). He said that according to his
recollection, there were some proposed changes to the provisions
pertaining to penalties and enforcement.
MR. BITTNER indicated that the penalties have not been changed
in Version Q.
MR. PRESTON said that his concern revolves around potential
penalties that may arise because of a minor paperwork
infraction. Proposed AS 16.40.280, among other things, grants
the department the authority to promulgate regulations necessary
to implement "this section". Proposed AS 16.40.290 is the
penalty provision, and subsections (b) and (c), which refer to
violations of proposed AS 16.40.270(e), provide that a person
is, for a first offense, guilty of a violation and may be
subject to a fine of not more than $500, and is, for a
subsequent offense within a three-year period, guilty of a class
B misdemeanor. However, because subsection (a) of proposed AS
16.40.290 says that knowing violations of proposed AS 16.40.260
- AS 16.40.299, which would include proposed AS 16.40.270(e),
are to be considered class A misdemeanors, it appears that
subsection (a) is in conflict with subsections (b) and (c).
MR. PRESTON said he hopes that when the bill comes out of
committee "there would at least be intent language in there that
a person who unwittingly, or for mitigated circumstances, misses
a deadline by a day or so, of turning in their logbook, that
they would not be guilty of a class A misdemeanor." He relayed
an experience he had wherein he'd had a major [equipment]
breakdown, forgot to turn in his logbook, and had to pay a $200
fine even though his boat was out of the water. He reiterated
that he would prefer that such situations not be charged as
class A misdemeanors. Other than that, he concluded, he is very
supportive of HB 452.
Number 1671
JOEL HANSON, The Boat Company, LTD, after describing how the
company he works for engages in sport fishing activities, said
that the company has two recommendations for change to HB 452,
though he acknowledged that he does not yet have Version Q in
his possession. Referring instead, then, to CSHB 452(L&C), he
said that the company would like to see the language on page 4,
line 24, deleted because it requires an applicant for a guide
license to also hold a current fishing license before he/she
will be issued a guide license. He noted that such a
requirement could be satisfied just by purchasing a one-day
fishing license just prior to applying for a guide license, and
so the requirement appears to be nonsensical. He opined that a
guide should not be required to hold a sport fishing license
because a guide doesn't necessarily participate in sport fishing
activities as they are commonly defined. He offered that what
he is attempting to do is draw a clear distinction between
guiding and sport fishing.
MR. HANSON, still referring to CSHB 452(L&C), said that the
other recommendation the company he works for would offer
pertains to page 5, lines 13-14, which requires a guide to
possess "the current licenses, tags, and permits that are
required to engage in the sport fishery for which the sport
fishing guide services are being provided". He went on to say:
What this means to a sport fishing guide that's
engaging in taking clients out on a saltwater king
salmon fishing trip is that he or she must essentially
have in possession both a personal sport fishing
license and a personal king salmon stamp stuck on the
back of the sport fishing license. This all kind of
makes sense except [for the fact that] fish and game
regulations prohibit the guide from fishing for king
salmon or retaining personal catch along [with] the
client on a guided king salmon fishing trip.
Therefore, there is a conflict with this legislation.
...
MR. HANSON said that the company he works for recommends that
this language be modified to clarify the circumstances under
which a guide would actually need to possess sport fishing
licenses. For example, change the language such that, "whenever
actively personally participating in sport fishing or retaining
personal catch, the current licenses, tags, and permits ..." and
then delete the phrase, "for which the sport fishing guide
services are being provided". Such a change would absolve the
guide from the requirement of having a license and fish tag that
he/she is prohibited from using. In conclusion, he said that he
appreciates all the work that the sponsor and her staff have put
into the legislation.
Number 1969
ROB BENTZ, Deputy Director, Division of Sport Fish, Alaska
Department of Fish & Game (ADF&G), on the issue raised by Mr.
Preston's testimony regarding class A misdemeanors, relayed that
this language currently exists in the ADF&G's saltwater logbook
program, but if HB 452 is adopted, the language would be altered
somewhat and would no longer be exactly the same as in that
program. He noted that a class A misdemeanor can result in a
fine ranging from zero to $10,000, but the exact amount would be
determined by the judge on a case-by-case basis. On the issue
raised by Mr. Hanson regarding sport fishing licenses, Mr. Bentz
pointed out that language in the bill requires a guide to
present a current sport fishing license to law enforcement
officers when requested to do so; therefore, a one-day license
would not suffice to fulfill the requirement.
MR. BENTZ said that the reason for asking a guide to carry a
current sport fishing license is because in many cases, both in
freshwater and saltwater, guides do fish while guiding clients,
particularly if they are trying to teach the clients to fish.
Additionally, in the process of assisting clients, guides bait
the hooks and use the downriggers - in other words, they are
sport fishing. With regard to the assertion that a guide is not
allowed to fish for king salmon and therefore there is no need
for him/her to possess a king salmon tag, Mr. Bentz said this is
not correct; guides in Southeast Alaska are prohibited from
retaining king salmon when they have clients onboard, but they
are not prohibited from fishing for king salmon and then
releasing them. In fact, he explained, a king salmon tag is
required when fishing for king salmon, not just when harvesting
king salmon. In response to a comment, he said that in
Southeast Alaska, one can have up to six lines per vessel in the
water, but only as many lines as there are paying clients.
However, if a paying client pulls his/her line in, then the
skipper can fish.
Number 2138
DOUG VINCENT-LANG, Assistant Director, Division of Sport Fish,
Alaska Department of Fish & Game (ADF&G), added that these
stipulations originated when "we were doing the 'guide/charter
task force' through the Board of Fisheries." Clearly, he
remarked, many guides across the state have realized that to be
a sport fishing guide, one has to be able to show clients how to
fish, and this in turn requires having a sport fishing license
as part of operating as a responsible sport fishing guide.
There is some concern, though, regarding whether one needs to
have that license in his/her possession when in an area that
he/she is prohibited from fishing in. He remarked, however,
that in such situations, the prohibition pertains to certain
species or certain times of day. Therefore, he opined, it is
not unreasonable to require someone to have the license in
his/her possession.
REPRESENTATIVE GARA observed that the state may need to limit or
reduce the number of guides in a particular area, and so he
wants to make sure that they are not giving people a property
right that could later be used to say the state can't take away
someone's license without paying that person a lot of money. He
asked whether current law authorizes the state to limit the
number of licenses in the future. Or should HB 452 be altered
to clarify that the state retains that right?
MR. BENTZ said that the state's ability to limit the number of
guides is unclear at this time, though last year, "when the
moratorium bill for Southeast [Alaska] came up," the Department
of Law (DOL) offered the opinion that the existing "limited
entry amendment" to the Alaska State Constitution is perhaps
broad enough to include charter vessels.
REPRESENTATIVE GARA said that assuming the courts affirm that
the state is allowed to protect its fisheries by limiting the
number of guides on a fishery, he wants to make sure that the
state has the authority to limit licensure.
MR. VINCENT-LANG pointed out that HB 452 is not a limited entry
bill, and opined that neither he nor Mr. Bentz is qualified to
say whether licensing a guide would result in giving that person
a property right. He said he would ask the DOL whether such
would be the case, but noted that it is not the intent of HB 452
to issue a property right to an individual guide. Instead, the
intent is to license sport fishing guides, set minimum standards
and reporting requirements, and set penalties pertaining to
licensing and reporting.
Number 2281
REPRESENTATIVE GARA said that is his understanding of the bill's
intent as well, and relayed that he would probably be offering
an amendment that simply clarifies that intent, that to the
extent the department has the authority to reduce the number of
licenses in order to protect a fishery, it should be allowed "to
do it."
CHAIR McGUIRE opined that Representative Gara makes a good
point, and surmised that many years ago, when the department was
first considering licensure of commercial fisheries, no one
would have envisioned that "we would end up with quotas ... or
the types of restrictions" that are currently in place. She
added that she is vehemently opposed to [issuing property rights
via licensure].
MR. VINCENT-LANG reiterated that HB 452 is not intended to be a
limited entry bill, which would engender both constitutional and
criteria hurdles.
REPRESENTATIVE GARA said he merely wants to preserve the
department's authority - to the extent that the Alaska State
Constitution grants the department that authority - to limit the
number of guides on a river.
CHAIR McGUIRE suggested that the committee could ask Legislative
Legal and Research Services about this issue.
REPRESENTATIVE GARA offered his belief that the bill shouldn't
be delayed just to wait for a response from Legislative Legal
and Research Services. He then turned attention to page 4,
subsection (e), of Version Q, which says that a sport fishing
[operator] is not allowed to assist in the violation of AS 16.05
- AS 16.40 or in the violation of the regulations adopted under
those provisions of statute.
TAPE 04-54, SIDE B
Number 2356
REPRESENTATIVE GARA referred to frustration he has heard voiced
by some sport fishermen with regard to fishing guides who take
clients out for catch and release fishing and leave the fish
flopping on the bank while people get out their cameras. He
stated that the whole point of catch and release fisheries,
citing that the Kenai River has a regulation for rainbow trout
that are under 30 inches long, is to maintain the fisheries with
a vibrant population of large fish that will exist as long as
possible. He stated that behaviors like letting a fish flop
around on the bank are things that the fishing community finds
completely out of line. He mentioned that would be offering an
amendment to add some language that emphasized the rules
governing the catch and release of fish.
MR. VINCENT-LANG said that the ADF&G feels that the regulations
governing catch and release fishing are already in effect via
Title 16, and so the proper way to adopt regulations is through
the Board of Fisheries. Having said that, Mr. Vincent-Lang
acknowledged that emphasizing [the regulations regarding catch
and release fishing] in HB 452 would not cause any problems.
CHAIR McGUIRE asked if there was anyone else that wanted to
testify on HB 452; there being no one, she closed public
testimony.
REPRESENTATIVE GRUENBERG indicated that he wanted to offer a
technical, handwritten amendment [later adopted as Amendment 1]
that read [original punctuation provided]:
page 6 lines 29-30. Strike "and upon conviction is
punishable by a fine of not more than $500".
page 7 lines 1-2. Strike "and upon conviction is
punishable by a fine of not more than $500"
REPRESENTATIVE GRUENBERG explained that he had spoken with Mr.
Bittner as well as the drafter of the bill because the term
"violation" [which is used in HB 452] is a legal term that is
defined in the criminal code in AS 11.81.900(b)(61). Therefore,
Representative Gruenberg remarked, these lines do not need to be
in the bill. He also cited AS 12.55.035(b)(7), wherein the
amount of the fines imposed for violations is set up in statute,
and said that he is offering the amendment because the fines
imposed may change from time to time and he wants the
legislation to be congruent with the normal style and the
current code. Representative Gruenberg said that he had pointed
this out to the drafter, and the drafter was not aware that the
fine for a violation had already been established or else he
would have left the language out of the bill.
Number 2155
REPRESENTATIVE GRUENBERG moved to adopt Amendment 1. There
being no objection, Amendment 1 was adopted.
Number 2132
REPRESENTATIVE GARA moved to adopt Amendment 2 as follows:
Page 4, line 17, after "person"
Insert ", including rules governing the proper release
of fish"
REPRESENTATIVE GARA explained that Amendment 2 would not add any
new rules, but would emphasize that violations include violating
the current rules governing the release of fish.
REPRESENTATIVE HEINZE indicated that she had no objections to
Amendment 2.
MR. BENTZ said that such was alright with the ADF&G as well.
REPRESENTATIVE GRUENBERG questioned the placement of Amendment
2, stating that it might fit better somewhere else in the bill.
He then suggested leaving the placement up to the discretion of
the drafter.
REPRESENTATIVE GARA said it would be fine to leave it up to the
drafter to put the language where he saw fit.
Number 2060
CHAIR McGUIRE clarified that the committee wanted to
conceptually add this language, which would indicate that there
is emphasis on rules governing the proper release of fish,
knowing that there are already regulations dealing with
releasing fish.
Number 2052
CHAIR McGUIRE asked if there was any objections to adopting
[Conceptual] Amendment 2. There being no objection, Conceptual
Amendment 2 was adopted.
REPRESENTATIVE GARA asked the sponsor if it is her intention to
make the issue of a [fishing license] as a property right
limited, as far as the constitution would allow, and noted that
licenses are only valid for one year.
REPRESENTATIVE HEINZE confirmed that this is her intention.
REPRESENTATIVE GRUENBERG asked if it is the intent of either the
sponsor or the ADF&G to limit the number of licenses given out
in a given area.
REPRESENTATIVE HEINZE said that issue isn't dealt with in HB
452.
REPRESENTATIVE GARA stated that in the future, it may be
determined that there are too many licenses being distributed.
He said that limiting the number of licenses may help protect a
fishery or someone's right to recreational enjoyment. He noted
that there isn't any intention to do that at this time, but
merely to think about it for the future.
REPRESENTATIVE GRUENBERG shared that it is his understanding
that in certain areas, [the ADF&G] limits the number of hunting
licenses for guides. He then clarified that although the issue
isn't dealt with in HB 452, he wanted to know if something like
that would be coming in the future.
REPRESENTATIVE HEINZE explained that HB 452 will provide [ADF&G]
with the number of guides that fish in particular areas and what
kind of load each area can sustain.
Number 1971
MR. BENTZ clarified that HB 452 will provide a fair licensing
standard across the guide industry. He said it will give the
ADF&G an accurate account of who is participating in the guide
industry, as well as information that the ADF&G needs in order
to manage the fisheries. He stated that if there is ever an
attempt to limit guides in the future, there would have to be
additional work done in order to do so. He again cited
constitutional hurdles as one of the issues that would have to
be addressed, as well as setting criteria regarding how the
ADF&G is going to limit the licensing. He stated that the ADF&G
would probably have to create more legislation just to be
granted the authority to do something like that. He reiterated
that HB 452 is necessary to get information that the ADF&G needs
to manage the fisheries.
REPRESENTATIVE GRUENBERG asked if there are any other states
that limit the number of licenses being distributed.
MR. BENTZ stated that the ADF&G has researched eight western
states and only one, Washington, has a moratorium on chartered
guiding. He said that this is the only example of states
limiting licenses. He followed that up by saying that there are
some federal programs, similar to the North Pacific Fishery
Management Council, that have various restrictive measures.
CHAIR McGUIRE shared her concern that licensing sport fishing
guides could be viewed as a quasi-property right. She said she
doesn't want the licenses passed down from generation to
generation, excluding all new entrants that may not have grown
up in fishing families from that opportunity at a livelihood.
She said she believes that passing HB 452 is the responsible
thing to do, and the information that will be gleaned will
assist the department in making future decisions regarding
fisheries. She remarked that it would be interesting to look
back at the discussions had while commercial fishing licenses
were being debated, and view the results of those discussions.
CHAIR McGUIRE began discussion on what would eventually become
Conceptual Amendment 3. She stated that she would like the
license referred to in HB 452 to be one that could be withheld
for failure to pay child support. She asked Representative
Heinze if she would allow this to be included in HB 452. Chair
McGuire said that she would offer the amendment conceptually and
have a conversation with the drafters about the intent. She
stated that she wanted it to be put in the bill under the same
context as other bills containing the same penalty. She offered
that the forthcoming committee substitute (CS) would be subject
to the sponsor's approval before being distributed to the
committee.
REPRESENTATIVE HEINZE said she would be agreeable to that.
Number 1763
CHAIR McGUIRE made a motion to adopt Conceptual Amendment 3,
that this would be a type of license that could be taken away by
Child Support Enforcement Division for failure to pay one's
child support obligations, or could be withheld for a certain
period of time.
REPRESENTATIVE GARA said that he is concerned that the ADF&G
retain whatever authority it has to protect Alaska's fisheries
and to protect the public's right to enjoy the fisheries. He
stated that in order to do that, the ADF&G may need to limit the
number of guides on a certain body of water. He surmised that
given the broad power both the ADF&G and the Department of
Natural Resources (DNR) have to protect the fisheries and the
public's right to enjoy them, there is probably statutory
authority already in place that enable the departments to limit
the number of licenses issued. With regard to an earlier
suggestion that in order to limit the number of guides it would
take another piece of legislation, he said that he would hate
for that to be the case.
Number 1689
CHAIR McGUIRE suggested that the committee resolve the issue of
whether to adopt Conceptual Amendment 3. Noting that there were
no objections, she stated that Conceptual Amendment 3 was
adopted.
REPRESENTATIVE GARA, returning to his earlier comments, stated
that he didn't want the bill to be interpreted such that it
detracted from ADF&G's ability to limit the number of guides and
licenses for a certain area.
MR. VINCENT-LANG clarified that there is nothing in HB 452 that
would limit ADF&G's authority. He noted the constitutional
concerns that the committee had discussed, but reiterated that
HB 452 would not take away the existing authority of the Board
of Fisheries or the ADF&G to deal with their statutory
responsibilities regarding fish and game management.
Number 1642
REPRESENTATIVE HEINZE shared her concern regarding the heavy
burden that the rivers are taking on now. She said that in the
future, as tourism and sport fishing grow, [the legislature] may
have to look at that burden and address it. She stated that for
now, HB 452 is a good first step to determine the number of
guides and the areas that are taking on a heavier burden. She
said that limiting the licenses may be step two, but passing HB
452 is step one.
CHAIR McGUIRE agreed with those assessments, and shared the
concerns that she has regarding the limitation of licenses to
guides. She pointed out that having guides available to a
family that may not have a lot of resources is a concern that
she has. She stated that if the number of guides on Lake Creek
was reduced by one half, for instance, the cost of retaining a
guide would increase considerably. She shared that fishing has
been a considerable part of her life since she was a young girl,
and she wants other people to have the same opportunities. She
stated that if there aren't the resources available, then a
family won't have the opportunity to fish and learn how to do it
responsibly. She said that her experience with guides has been
positive, and explained that they taught her respect for the
resource, how to catch and release, how to trim hooks, and other
things that someone probably wouldn't learn if they didn't have
a mentor.
CHAIR McGUIRE explained that her next concern with limiting
licenses to existing fishing guides is that it would not allow
new people to venture into the occupation of being a guide. Her
final concern dealt with the balance between sport and
commercial fishing. She said that fish are a limited resource,
and although Alaska is lucky because the resource isn't that
limited here, there could be a situation where someone in the
ADF&G would have a desire to see more commercial fishing and
less sport fishing, and then limit the licenses accordingly.
She reiterated that she feels that it is responsible to license
sport fishing guides, but she is leery about where the
legislature goes from here. She noted that HB 452 does not
change any power that the ADF&G has to the extent that the bill
is unconstitutional. She said that this is certainly the first
step in providing the ADF&G with the information it needs in
order to determine whether the number of licenses should be
limited. She said that this is going to be the "first tool in
that tool belt, and I just hope it's used wisely."
Number 1462
REPRESENTATIVE OGG referred to two rivers on Kodiak, and noted
that concerns have been relayed to him about aliens -
nonresidents from other countries - fishing on these rivers. He
observed that page 4 [lines 20-21] contains language that says
it's okay for residents of the U.S., Canada, or Mexico to obtain
a sport fishing guide license. What constituents have relayed
to him is that some visitors from Germany have been forming
"clubs" wherein one of them "takes them down the river" without
formally claiming to be a guide. Representative Ogg asked
whether there is a way, via the bill, to ensure that such groups
have a licensed sport [fishing] guide with them.
MR. BENTZ opined that the language in HB 452 will strengthen the
department's ability to oversee such activities. He elaborated:
Right now, currently, anybody can come into Alaska,
come to [an] area office of [the ADF&G], and register
as a sport fishing guide - costs them nothing - and
they can go out the next day and become a so-called
professional fishing guide even though it's their
first day on a river like the Ayakulik. This [bill]
would restrict it down to people from the U.S.,
Canada, or Mexico at least. So it is a more
restrictive version than what we're currently
operating under.
REPRESENTATIVE OGG asked how they could "get at these club
folks." When there is "a shove" for the resource, he remarked,
he wants such clubs to be accompanied by a licensed guide.
CHAIR McGUIRE mentioned that a licensed guide is much more
likely to be aware of what the rules are.
MR. VINCENT-LANG said that the department does have concern
about requiring every alien to have a guide. He opined,
however, that the way HB 452 is written, if an individual is
organizing "a club" and an enforcement officer can prove that
that individual is providing guide services as defined on page
7, line 12, then that individual would be covered under the bill
and would have to obtain both a sport fishing guide license and
a business license. He relayed that the reason the U.S.,
Canada, and Mexico are listed together in the bill is to satisfy
North American Free Trade Agreement (NAFTA) requirements.
Number 1091
REPRESENTATIVE HOLM turned attention to the fiscal note, and
asked why it did not reflect anticipated revenues from the
licensing fee.
MR. VINCENT-LANG said that it does, and pointed out the sections
of the fiscal note that did so. He relayed that revenues from
the licensing fee will go into "the fish and game fund" rather
than the general fund (GF).
MR. BITTNER added that there is "a slight overshoot" on the
"fines" that would be taken in.
MR. VINCENT-LANG said that the calculation was arrived at from
information received from "registration of guides."
REPRESENTATIVE HOLM said he wanted to make sure that there is
[yearly] oversight on the [fiscal aspect of the bill] so that it
doesn't become a burden on the GF.
MR. BITTNER, in response to a question, confirmed that the
licensing fee was set high enough to cover anticipated costs.
MR. VINCENT-LANG, in response to a further question, said:
Initially what we did was we took a shot at trying to
set this license fee to cover the cost of [the]
administration of the program. Now, we're not going
to come back annually to ask for adjustments to this.
Clearly, the department is probably going to live with
this for four or five years, and we'll deal with it in
the fish and game fund. But if in fact, in the
future, four or five years down the road, we're seeing
that the license revenues coming in are insufficient
to run the program, then we'll probably be coming back
and talking to you about it. But I think this a first
good shot at approximating what other states are doing
in terms of licensing ... sport fishing guides and
what we figured to be the up costs of administering
the program.
REPRESENTATIVE GARA asked about the NAFTA requirement to include
residents of Canada and Mexico in the bill.
Number 0854
MR. VINCENT-LANG said:
When the guide/charter task force went through this
they initially wanted to limit the availability to
have a sport fishing guide license to just residents
of ... the United States. But when we got a legal
opinion back after NAFTA passed, [there have] to be
fair business practices across ... the borders of
those three countries. So at a minimum, we were told
by the Department of Law, you had to include Canada
and Mexico.
REPRESENTATIVE GARA suggested that it might look poorly upon
them if they were to discriminate against residents of other
countries, adding that if someone has the qualifications then
he/she should be granted a sport fishing guide license
regardless of his/her country of residence. He elaborated:
I don't know why we should favor a Mexican person over
an El Salvadoran person - though I probably will faint
the first time I see an El Salvadoran fishing guide on
the Kenai River, but it might happen - and ... as
unlikely as it might be that we ... get guides from
other places in the world, I suppose if we're going to
extend it to certain non-citizens, we might as well
extend it to all non-citizens."
MR. VINCENT-LANG replied: "We're certainly not opposed, if an
individual meets the requirements of what it takes to be a sport
fishing guide, to granting that privilege (indisc.); I can see
cases where somebody (indisc.)."
CHAIR McGUIRE asked what the rationale was behind limiting
licensure to residents of North America.
MR. BITTNER said it was in order to comply with NAFTA's
requirements.
MR. VINCENT-LANG added that the language in then-Representative
Austerman's bill, from which HB 452 is derived, limited
licensure to residents of the U.S., but NAFTA required the
inclusion of Canadian and Mexican residents. He reiterated that
the guide/charter task force wanted to limit licensure to U.S.
residents, but he also reiterated that the department would not
be opposed to expanding licensure to residents of other
countries as well.
REPRESENTATIVE GARA asked members what their thoughts on this
issue were.
REPRESENTATIVE HOLM said that if it were up to him, he would
exclude residents of Canada and Mexico.
Number 0699
CHAIR McGUIRE indicated that she would like to be respectful of
the wishes of the industry task force. If there were ever a
time when licensure must be limited, she added, then she would
prefer that Alaskans get preference, though she acknowledged
that such might not be possible.
REPRESENTATIVE HEINZE opined that as first step, licensure to
non U.S. residents should be as limited as possible.
REPRESENTATIVE OGG indicated a preference for limiting licensure
as much as possible.
REPRESENTATIVE GARA said that to the extent feasible, he would
like to see the bill grant a preference to Alaskan residents,
though the reality is that there are sport fishing guides who
are not residents of Alaska and some even that are not citizens
of the U.S. He noted that if the bill had not specifically
included Canada and Mexico, the issue would not have caught his
attention.
REPRESENTATIVE ANDERSON relayed that he knows folks from
Switzerland who own a lodge and provide sport fishing guide
services and who contribute a great deal to the local economy,
and that until now he'd not realized that HB 452 would affect
these folks.
REPRESENTATIVE OGG remarked that treaty law trumps both state
law and constitutional law, adding that he is not prepared to go
beyond the provisions of NAFTA and offer rights to other aliens.
CHAIR McGUIRE mentioned that the folks that Representative
Anderson knows might have to hire local guides in the future.
MR. VINCENT-LANG said that the restriction in HB 452 goes to
sport fishing guide licenses and not to business licenses, so a
foreign company could still have a business license but under
the bill would have to employ citizens of either the U.S.,
Canada, or Mexico as sport fishing guides.
REPRESENTATIVE GARA relayed that he would not be offering an
amendment to expand who could get a license.
Number 0279
REPRESENTATIVE ANDERSON moved to report the proposed CS for HB
452, Version 23-LS1619\Q, Utermohle, 3/29/04, as amended, out of
committee with individual recommendations and the accompanying
fiscal notes. There being no objection, CSHB 452(JUD) was
reported from the House Judiciary Standing Committee.
HB 484 - CORRECTIONS: FEES/SURCHARGE
Number 0225
CHAIR McGUIRE announced that the next order of business would be
HOUSE BILL NO. 484, "An Act imposing a correctional facility
surcharge on persons convicted of a crime under state law, and
on persons whose probation is revoked; relating to fees and
expenses for interstate transfer of probation or parole; and
providing for an effective date."
Number 0119
PORTIA PARKER, Deputy Commissioner, Office of the Commissioner -
Juneau, Department of Corrections (DOC), said that HB 484
imposes a correctional facilities surcharge. The surcharge will
be $100 for felony convictions, and $50 for misdemeanor
convictions. As currently written, the surcharge only applies
to those who are convicted or plead no contest. The surcharge
will be part of the court judgment and be included as a court
fee, and so it wouldn't set up a whole new collection process.
The bill also imposes a $100 fee as a condition of probation,
but this fee would be suspended unless the probationer violates
probation.
TAPE 04-55, SIDE A
Number 0001
MS. PARKER said that the second part of HB 484 imposes a $100
application filing fee for a person who is on probation or
parole and wishes to go out of state and be supervised in
another state in conjunction with the interstate compact. She
noted that most other states already charge this fee. The third
part of HB 484 involves a requirement that the probationer or
parolee going out of state come up with a $1,250 bond. She
relayed that a big cost to the state - specifically the Alaska
State Troopers - involves having to go and get probationers and
parolees who've gone to other states and violated their
probation or parole. It can cost anywhere from $1,500 to $9,000
to retrieve one offender, and the state is retrieving one to two
offenders every week.
Number 0121
BARBARA BRINK, Director, Central Office, Public Defender Agency
(PDA), Department of Administration (DOA), said that she wished
to speak about the surcharge proposed in HB 484 and how it fits
in with all the other surcharges that are currently being
imposed. She said that her fear, and the fear of those who
represent indigent Alaskans - is that the state is beginning to
impose burdens on people that are just impossible to meet.
Currently, 80 percent of all criminal cases in Alaska are
represented by public counsel - either someone from the PDA, the
Office of Public Advocacy (OPA), or an OPA contractor. What
should be remembered is that those who are released from custody
have financial obligations to meet and perhaps families to
support. Frankly, because of a lot of the mandatory minimum
sentences in Alaska, even those charged with misdemeanor crimes
have lost their jobs and face additional stigmatization when
trying to find employment. Often their most pressing obligation
is paying child support and restitution for their crimes. In
addition, most are disqualified from receiving a permanent fund
dividend (PFD), so that can't be tapped to pay surcharges.
MS. BRINK offered the following synopsis of what people who find
themselves in the criminal justice system are already being
charged:
First of all, we have mandatory minimum fines that
range from $1,500 to $10,000 - just for [driving while
under the influence (DUI)]. We already do have a
surcharge; there's already a $100 surcharge for
felonies, a $50 surcharge for misdemeanors, and a $75
misdemeanor [DUI] surcharge. I'm not entirely
positive, but I think that money goes to law
enforcement officer training. If a client is ordered
to go to ASAP [Alcohol Safety Action Program] and get
some treatment or at least an assessment as a
condition of his sentence, that's a $100 fee per case,
and ASAP will not take them until they come up with at
least 50 percent of that fee. So sometimes, someone
who needs treatment and wants to go to treatment just
has to come up with the cold, hard cash to get the
treatment.
MS. BRINK added:
Then, in [DUI] cases, we already force people to pay
their cost of imprisonment. This can range from a low
of $236.40 for 72 hour mandatory minimum [DUI]
sentence, up to $2,000 for a felony sentence. And
under Rule 39 [of the Alaska Rules of Criminal
Procedure], they also have to pay for their costs of
counsel; they have to pay a minimum of $250 for an
easy misdemeanor that settles quickly, and a maximum
of up to $5,000 for a more serious case that goes all
the way to trial. So I ... think that we're imposing
burdens that instead of providing incentive and
rehabilitation, give people a sense of helplessness
and frustration.
Number 0344
And the felony study recently done by the Alaska
Judicial Council (AJC) indicates that ... our Alaskan
defendants serve more time than ... similarly situated
people outside. I wouldn't want to also increase our
surcharges so that we are the most onerous in the
country. My other point is that in particular it
seems kind of onerous to impose a fee of $100 and a
bond requirement for those who want to get an
interstate transfer. Studies have shown that the
single most significant factor in the rehabilitation
of a person is the support of families in their
efforts to lead a law-abiding life.
What we know is that many of the clients we represent
here in Alaska aren't from Alaska, don't have family
here, and have come up here to take advantage of
economic opportunities, maybe even seasonal economic
opportunities. It seems like we would want to
encourage those people who have family and support
networks outside to go and to be a successful
probationer, rather than ... forcing them to stay
here, especially when they get out of jail and have no
support, no money, and have to struggle.
REPRESENTATIVE HOLM said, "Leave town."
MS. BRINK continued:
Finally, I think that there is some discretion in this
bill that it could be unfairly applied. And it does
seem like there's a difference if you get summonsed in
or if you get arrested - even if you post bail
immediately that day, you're booked in a facility. If
the [district attorney] chooses to summon you in, you
don't get assessed a fee, and if the [district
attorney] just says, "I don't have time to issue a
summons, just go get a warrant," ... it can be totally
arbitrary. There aren't any standards for who gets
arrested and who gets summonsed in, so even in a case
so minor that the defendant gets no jail time imposed,
once the case is resolved, the [surcharge] would be
imposed. Thank you Madam Chair ....
Number 0498
CHAIR McGUIRE announced that HB 484 would be set aside for the
purpose of returning to the hearing on HB 474. [HB 484 was
taken up again later in the meeting.]
HB 474 - LIABILITY FOR AIRPORTS AND AIRSTRIPS
Number 0555
CHAIR McGUIRE announced that the committee would return to the
hearing on HOUSE BILL NO. 474, "An Act relating to civil
liability associated with aircraft runways, airfields, and
landing areas."
CHAIR McGUIRE remarked that Representative [Holm] had offered
Amendment 1 [text provided during the first portion of today's
hearing on HB 474], and that Representative Gara had an
amendment to Amendment 1.
Number 0627
REPRESENTATIVE GARA again offered the amendment to Amendment 1,
to add at the end of Amendment 1, after "operator", the words,
"or passenger".
Number 0630
REPRESENTATIVE HOLM objected.
REPRESENTATIVE GARA said that Amendment 1 as written does not
afford protection to passengers - for example, if the owner of
an airstrip dug a ditch across it and didn't tell anybody even
though he/she knew a passenger was flying in - and the amendment
to Amendment 1 would do just that.
REPRESENTATIVE HOLM offered his understanding that passengers
would be protected because they are covered by the air carrier
they are using.
REPRESENTATIVE GARA argued, however, that an air carrier's
liability insurance would only protect a passenger if the air
carrier was negligent, but not if the owner of the airstrip did
something to cause a mishap, like dig a ditch across the
airstrip without telling anybody.
REPRESENTATIVE HOLM opined that a good pilot wouldn't land on an
airstrip that had a ditch dug across it.
CHAIR McGUIRE invited the representative from the Aircraft
Owners and Pilots Association (AOPA) to comment.
Number 0845
TOM GEORGE, Alaska Regional Representative, Aircraft Owners and
Pilots Association (AOPA), said: "The original clause in this
bill should protect the passengers. Again, if there is a ditch
dug across the airport, then the airport operator is grossly
negligent, and I think that's ... a fairly balanced protection,
both for the consumer and for the person who's trying to operate
the airport."
REPRESENTATIVE GRUENBERG asked that the amendment to Amendment 1
be amended such that the words "or to a passenger" would be
added after "provider of flight services".
REPRESENTATIVE GARA opined that such a change doesn't make
sense.
REPRESENTATIVE OGG mentioned the lack of a relationship between
the owner/operator and the passenger.
REPRESENTATIVE GARA, upon further consideration, agreed to
accept Representative Gruenberg's suggestion on the condition
that he restate it.
Number 0979
REPRESENTATIVE GRUENBERG made a motion, then, to amend the
amendment to Amendment 1 such that after "provider of flight
services", the words "[or] to a passenger" are added.
REPRESENTATIVE GARA indicated that he would accept that change.
Number 1027
REPRESENTATIVE HOLM withdrew his objection [to the amendment to
Amendment 1].
CHAIR McGUIRE stated that the amendment to Amendment 1 has been
adopted, and that Amendment 1, as amended, is now before the
committee.
REPRESENTATIVE GRUENBERG said he has a second amendment to
Amendment 1 [as amended].
The committee took an at-ease from 3:15 p.m. to 3:17 p.m.
Number 1103
REPRESENTATIVE HOLM withdrew Amendment 1 [as amended].
Number 1113
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 2,
which was labeled 23-LS1745\D.1, Bullock, 3/31/04; contained
handwritten changes; and read:
Page 1, line 6:
Delete "A [NATURAL]"
Insert "Except as provided in (c) of this
section, a [A NATURAL]"
Page 2, following line 9:
Insert a new bill section to read:
"* Sec. 2. AS 09.65.093 is amended by adding a new
subsection to read:
(c) The immunity from civil liability under (a)
of this section does not limit the liability of an
owner or operator of an aircraft runway, airfield, or
landing area to a provider of flight services under
contract with the owner or operator."
REPRESENTATIVE GRUENBERG said he would also like to amend
Amendment 2, to add, after "provider of flight services", the
words, "and its passengers".
[Although no motion was made to amend Amendment 2, it was
treated as amended.]
Number 1178
CHAIR McGUIRE asked whether there were any objections to
Amendment 2 [as amended]. There being none, Amendment 2, as
amended, was adopted.
REPRESENTATIVE GARA, referring to HB 474, said that he is still
not sure who this liability limitation is being extended to that
is not already covered by current law. He also said:
It was okay when it was people who ... operate an
airstrip voluntarily, but now it's not just people -
it's also businesses. And I do have a problem with
that. If we want to extend the immunity to people who
do things voluntarily, that's okay. If we want to
extend it to sort of nonprofit associations or
voluntary, that's okay. But to the extent we're
starting to extend it to profit-making businesses,
I've got a problem with the bill.
Number 1200
REPRESENTATIVE SAMUELS moved to report the proposed committee
substitute (CS) for HB 474, Version 23-LS1745\D, Bullock,
3/23/04, as amended, out of committee with individual
recommendations and the accompanying fiscal notes. There being
no objection, CSHB 474(JUD) was reported from the House
Judiciary Standing Committee.
HB 484-CORRECTIONS: FEES/SURCHARGE
Number 1239
CHAIR McGUIRE announced that the committee would return to the
hearing on HOUSE BILL NO. 484, "An Act imposing a correctional
facility surcharge on persons convicted of a crime under state
law, and on persons whose probation is revoked; relating to fees
and expenses for interstate transfer of probation or parole; and
providing for an effective date."
CHAIR McGUIRE, after determining that no one else wished to
testify, closed public testimony on HB 484.
Number 1274
CHAIR McGUIRE made a motion to adopt Amendment 1, which read
[original punctuation provided]:
Page 2, lines 5 and 6:
Delete: ", as a condition of probation,"
Page 2, line 14:
Between "under" and "this" insert: "(a) of"
Page 2, line 15:
After "conviction." insert: "The court shall
include the imposition of a surcharge under (c) of
this section in the order revoking probation."
Page 2, line 20:
After "28.30.032(o)." insert: "The state may
enforce payment of a surcharge under this section
under AS 09.35 as if it were a civil judgment
enforceable by execution. This subsection does not
limit the authority of the court to enforce
surcharges."
REPRESENTATIVE SAMUELS agreed to object for the purpose of
discussion.
Number 1301
PORTIA PARKER, Deputy Commissioner, Office of the Commissioner -
Juneau, Department of Corrections (DOC), explained that
Amendment 1 contains changes suggested by the [Collections and
Support Section] of the Department of Law (DOL). She
elaborated, "Because the way it was originally drafted, as ... a
condition of probation, [it] didn't work for being able to
collect the surcharge if the ... probation was revoked; it
couldn't be a condition of probation, so they had to the change
the language so it would work as far as how they collect
surcharges and fees."
Number 1328
REPRESENTATIVE SAMUELS removed his objection.
Number 1334
CHAIR McGUIRE asked whether there were any further objections to
Amendment 1. There being none, Amendment 1 was adopted.
REPRESENTATIVE GARA, speaking on the bill itself, said:
It seems to me that the ... [three] highest priorities
in the criminal system ... are: to the extent
possible, restitution to the victim; punishment; and
rehabilitation. And often, when you do something, it
has an unintended consequence. One of the unintended
consequences [in] some of these cases is going to be
that by giving money to the state for booking charges
- and we're requiring people even who aren't jailed,
as part of their sentence, to do that - ... you may
impact somebody's ability to pay restitution to a
victim. You may impact an indigent person's ability
to get back on their feet. You may impact an indigent
person's ability to provide child support when they
get out of jail. That's certainly [what] will happen
in some cases, we just don't know how many.
I understand the competing interest, which is to make
sure that people who commit crimes cost as little to
society as possible. And I'm not comfortable that by
passing this bill, we won't have some unintended
consequences that impact some people's ability to
rehabilitate themselves, in fact, [impact] some
people's ability to pay restitution to victims, and
impact some people's ability to care for their
children when they get out. We're talking about
people who live below the economic margin already; ...
most people who go through the criminal system are
already indigent, and, when they get out, they're
likely not to have a job waiting for them. So they
certainly don't deserve any [more] sympathy than their
situation dictates, certainly many of these people
have committed quite horrific crimes, [but] some of
them have committed very minor crimes .... I'm just
not convinced that on balance this is the right thing
to do. I'm don't think I'm convinced either way at
this point.
Number 1484
REPRESENTATIVE SAMUELS moved to report HB 484, as amended, out
of committee with individual recommendations and the
accompanying fiscal note. There being no objection, CSHB
484(JUD) was reported from the House Judiciary Standing
Committee.
HB 439 - OATHS; NOTARIES PUBLIC; STATE SEAL
[Contains discussion and adoption of an amendment making a
provision of HB 439 conform to provisions of SB 203.]
Number 1504
CHAIR McGUIRE announced that the next order of business would be
HOUSE BILL NO. 439, "An Act relating to the authority to take
oaths, affirmations, and acknowledgments in the state; relating
to notaries public; relating to fees for issuing certificates
with the seal of the state affixed; and providing for an
effective date." [Before the committee was CSHB 439(STA).]
Number 1530
ANNETTE KREITZER, Chief of Staff, Office of the Lieutenant
Governor, relayed that members' packets contain a sectional
analysis for CSHB 439(STA) and a two-page comparison between
current law and CSHB 439(STA). She explained that when the
current lieutenant governor came into office, as his chief of
staff, she researched the issue of what could be done
differently to serve Alaska's 12,000 notaries public better,
adding that she'd looked at what other states have done and at
legislation proposed in prior years.
Number 1589
SCOTT CLARK, Notary Commission Administrator, Office of the
Lieutenant Governor, added that the current notary statutes have
not been changed since 1961.
MS. KREITZER presented CSHB 439(STA) as follows:
These are the highlights. For the qualifications,
we've lowered the minimum age from 19 to 18 years
because we were only one of two states that had 19 as
an age. So now, only [in] Nebraska [do] you have to
be 19-years-old to be a notary - if this bill passes.
The second issue goes to whether or not ... we wanted
to allow felons to be notaries, and in conversations
with the Department of Corrections, their advice was
... [that] within 10 years of getting out of jail, if
a felon doesn't reoffend, then they're likely to not
offend again. And so that has been put into the bill
as a qualification, that an applicant ..., from the
time of release from prison, ... can apply 10 years
later to be a notary. And in your packet ... are ...
what the felonies consist of. ... So those are two
changes on qualifications - major changes.
We looked at whether or not we ought to change the
terms [of a] notary public - [it's] four years; we
haven't changed that. The ... $40 application fee
stays the same. There is an increase for the
certificates, that used to be per folio, which is an
outdated term not used anymore; so now, every time we
have to issue a certificate, it will be $5 rather than
$3. And that just goes to the cost of business from
1961 to today - we're increasing it by $2. We didn't
change the amount of the bond; however, we are now -
thanks to an amendment by Representative Gruenberg -
... required to keep copies of the bond for 10 years,
which isn't a problem for us.
Number 1683
MS. KREITZER continued:
There are two commission types: ... notaries public,
and ... limited governmental notaries public. We've
kept that distinction, but expanded limited
governmental notaries public commissions to include
municipal and federal employees in addition to state
employees. And we've also said that you can hold
concurrent commissions; if you are a private citizen -
... you're not doing this for your job, you just do it
because you want to be a good citizen and be a notary
- you can do that in addition to holding a commission
as a state employee or a federal employee. But when
you're acting as a notary public in your federal job,
you're not going to be charging fees - you're going to
be doing it because in the course of your business
that's what you're required to do. As a private
citizen you can be a notary and you can charge fees
separate from that .... So that's one little change
in the bill, is that you now can hold those concurrent
commissions, but they operate in parallel; they don't
cross over.
There is some information that we wanted to gather
from the notaries to make it easier to go to a more
web-based system working with the 12,000 notaries, and
one of them were e-mail addresses, but we didn't want
to open up notaries to spam, and so we wanted to keep
that information confidential. Everything that
currently is public information about notaries stays
public information; we just wanted to gather a little
bit more information so we could communicate with them
more effectively. And that's a quick overview of the
bill ...; we'll be glad to answer any questions.
There is an amendment in your packet from us that
would make our bill consistent with the administrative
hearing officer bill [SB 203] which you amended in
this committee previously.
Number 1776
CHAIR McGUIRE, after ascertaining that no one else wished to
testify, closed public testimony on HB 439.
REPRESENTATIVE GRUENBERG noted that he has an amendment similar
to the one that Ms. Kreitzer mentioned.
MS. KREITZER expressed a preference for the amendment prepared
by Deborah Behr from Department of Law (DOL) labeled 23G-2,
3/26/2004, (1:46 PM), which read:
Page 16, following line 30:
Insert a new bill section to read:
"* Sec. 12. AS 44.50.068(e) is repealed and
reenacted to read:
(e) If the lieutenant governor finds that formal
disciplinary action may be warranted, the lieutenant
governor shall refer the matter to the office of
administrative hearings for a hearing."
Renumber the following bill sections accordingly.
Page 17, line 25, following "Sec. 15.":
Insert "(a)"
Page 17, following line 27:
Insert the following new material:
"(b) AS 44.50.068(f) is repealed."
Page 18, line 2:
Delete "secs. 1- 14"
Insert "secs. 1 - 11 and 13 - 15(a)"
Page 18, line 7:
Delete "secs. 1- 14"
Insert "secs. 1- 11 and 13 - 15(a)"
Page 18, following line 16:
Insert new bill sections to read:
"* Sec. 18. The uncodified law of the State of
Alaska is amended by adding a new section to read:
CONDITIONAL EFFECT. Sections 12 and 15(b) of
this Act take effect only if a bill is passed by the
Second Session of the Twenty-Third Alaska State
Legislature, and enacted into law, that establishes
procedures for administrative hearings conducted by an
office of administrative hearings in the Department of
Administration.
* Sec. 19. If secs. 12 and 15(b) of this Act take
effect under sec. 18 of this Act, they take effect on
the effective date of the provisions described in sec.
18 of this Act."
Renumber the following bill sections accordingly.
Page 18, line 17:
Delete "Section 16"
Insert "Section 17"
Page 18, line 18:
Delete "sec. 17"
Insert "secs. 19 and 20"
Number 1894
REPRESENTATIVE GRUENBERG, calling the aforementioned Amendment
1, [moved] to adopt Amendment 1.
CHAIR McGUIRE asked whether there were any objections to
Amendment 1.
REPRESENTATIVE GARA asked for an explanation of what Amendment 1
does.
MS. KREITZER relayed that Amendment 1 provides for the
administrative hearing process outlined in SB 203 to be used
after 7/1/2005 should SB 203 pass.
REPRESENTATIVE GARA indicated that he did not object to
Amendment 1.
Number 1917
CHAIR McGUIRE announced that Amendment 1 was adopted.
Number 1932
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 2,
which read [original punctuation provided]:
Page ___, Line ___: Insert new bill section to read:
*Sec. ___. AS 44.50 is amended to by adding a new
section:
Sec. 44.50.___. Unauthorized practice. (a) A
notary who is not an attorney may complete but may not
select notarial certificates, and may not assist
another person in drafting, completing, selecting, or
understanding a document or transaction requiring a
notarial act.
(b) This section does not prohibit a notary who
is qualified in, and, if required, licensed to
practice, a particular profession from giving advice
relating to matters in that professional field.
(c) A notary may not make representations to have
powers, qualifications, rights or privileges that the
office of notary does not have.
Number 1937
CHAIR McGUIRE objected for the purpose of discussion.
REPRESENTATIVE GRUENBERG said that Amendment 2 will prohibit a
notary from practicing law, and opined that the Hams case
illustrates that the exact language of notarization certificates
is extremely important.
Number 1992
CHAIR McGUIRE removed her objection and asked whether there were
any further objections to Amendment 2.
REPRESENTATIVE OGG noted that Amendment 2 does not specify where
in the bill its language will be inserted. He asked whether
Amendment 2 would be conceptual.
REPRESENTATIVE GRUENBERG confirmed that Amendment 2 would be
conceptual.
Number 2007
CHAIR McGUIRE, after ascertaining that there were no further
objections, announced that [Conceptual] Amendment 2 was adopted.
Number 2015
REPRESENTATIVE GRUENBERG moved to report CSHB 439(STA), as
amended, out of committee with individual recommendations and
the accompanying fiscal note. There being no objection, CSHB
439(JUD) was reported from the House Judiciary Standing
Committee.
HB 244 - CRIMINAL LAW/SENTENCING/PROBATION/PAROLE
Number 2034
CHAIR McGUIRE announced that the final order of business would
be HOUSE BILL NO. 244, "An Act relating to the Code of Criminal
Procedure; relating to defenses, affirmative defenses, and
justifications to certain criminal acts; relating to rights of
prisoners after arrest; relating to discovery, immunity from
prosecution, notice of defenses, admissibility of certain
evidence, and right to representation in criminal proceedings;
relating to sentencing, probation, and discretionary parole;
amending Rule 16, Alaska Rules of Criminal Procedure, and Rules
404, 412, 609, and 803, Alaska Rules of Evidence; and providing
for an effective date." Before the committee was
[Before the committee, adopted as a work draft on 3/19/04, was a
proposed committee substitute (CS) labeled 04-0033, 1/16/2004.]
Number 2092
JOSHUA FINK, Public Advocate, Anchorage Office, Office of Public
Advocacy (OPA), Department of Administration (DOA), indicated
that he would be focusing on the sections of the proposed CS
that he finds the most problematic. First are Sections 15-17
and 20, the sections on immunity. On page 9, lines 29, through
page 10, line 1, it speaks about the judge informing the
prosecution what level of crime the person wishes immunity for.
He said:
For this legislation to be constitutional under [State
v. Gonzales, 853 P.2d 526 (Alaska 1993)], an
individual who has the privilege, that would be the
witness about to self incriminate, if they are forced
to testify to a judge or tell a judge their story back
in chambers, and the judge comes out and tells [the]
prosecution what level of crime, Gonzales requires
that that individual with the privilege be in the same
position they'd be in had they not opened their mouth.
And if you think of it that way, if the judge comes
out and says, "It would be a high-level felony; this
person does have a privilege to not testify," are they
in the same position? The district attorney now knows
what level of crime, how serious the conduct was that
they would be testifying about; that's another way to
think about it.
That is a link; the judge providing the information,
about what level of crime, is in fact a link. And if
you look at Gonzales, it talks about a link being a
thing that would help the police focus an
investigation. It might help the district attorney
decide whether to initiate prosecution against a
witness. It might help the district attorney
determine whether to offer a plea bargain, or how to
interpret evidence, or how to plan cross examination,
or develop trial strategy. All of those things are
links. And ... it's just implausible to me, the
district attorney's position that ... the immunity
section would survive constitutional scrutiny by the
[Alaska] Supreme Court. I'm going to use an example
that I thought was very insightful, that I [was] given
by Senator French just about an hour ago in [the
Senate Judiciary Standing Committee].
Number 2167
MR. FINK continued:
Assume ... this is a murder case, a woman hears some
shots, watches the front door of a house, no one comes
in and leaves, the police arrive, there are four
people in the house. The police go in, one person's
dead - has been shot - they find a baggie of marijuana
under ... a bed, and they find a bloody gun under
another bed. There's a set of fingerprints on the bag
of marijuana - that's suspect A. And then they find
two sets of fingerprints on the bloody gun - suspect B
and suspect C. They charge suspect A with possession,
they want to put ... suspects B and C - or the
witnesses - on the stand, and they both take the Fifth
Amendment. The judge takes them in chambers. So what
happens? One of them says, "Well, I shot the guy."
The other one says, "All I did was throw the bloody
gun under the bed." So the judge comes out, he says,
"Well, both of them have a privilege; suspect B would
be an unclassified or class A felony, and suspect C
would be a class C [felony]."
The judge has just informed them who committed the
murder. That is clearly a link. And I would just ask
the committee to really look at that provision. I'm
confident it would not survive a constitutional
challenge, but it will cost money ... [and] resources
to get there, so I believe that this committee should
follow the Senate's lead in deleting that provision
from the bill.
REPRESENTATIVE GARA asked whether, in that example, suspects B
and C are immune from prosecution under the proposed CS.
MR. FINK said they were not, because at that point the district
attorney still has the option of whether or not to grant
immunity; the district attorney could decide not to grant
immunity and instead refocus the investigation on the murder.
Number 2242
MR. FINK then turned attention to Section 9 of the proposed CS,
and said that he understands the district attorney's desire,
when an individual has been drinking - but is not above the
legal limit - and gets in an accident and harms someone, to
tighten the laws up so as to be able to charge assault in the
third degree. But Section 9 goes much further than that, he
opined, because it takes away the mental element of awareness.
Currently, in order to be charged with assault in the third
degree, a person has to have done something with recklessness,
which involves being aware of and consciously disregarding a
substantial and unjustifiable risk.
MR. FINK pointed out, however, that Section 9 specifies criminal
negligence, which merely involves failing to perceive a
substantial risk, and noted that such could result from simply
coming up to a stop sign that has black ice under a light
dusting of snow and sliding through and hitting someone. Having
a car accident while talking on a cell phone or putting on
makeup could also be considered criminal negligence. Section 9
proposes to make all such instances, wherein an accident occurs
and someone gets hurt, assault in the third degree, which is a
felony. He said he did not believe such conduct warrants a
felony charge, and predicted that the public would find the
accompanying penalty grossly disproportionate to the charge. He
concluded by characterizing the new language being proposed in
Section 9 as too broad.
CHAIR McGUIRE asked Mr. Fink how he reconciles the fact that
under existing law, if one of those same errors is made and
someone dies, then the person making the error is held
responsible, but if someone is merely badly injured - for
example, has to have a leg amputated - then such is not the
case.
MR. FINK offered that loss of life does warrant the charge
available under existing law. He noted that the definition of
serious physical injury currently includes an injury caused by
an act performed under circumstances that create a substantial
risk of death, and remarked that any car accident could be
considered such.
CHAIR McGUIRE indicated disagreement with Mr. Fink's latter
remark, but suggested that perhaps they should focus on
clarifying what would be meant by serious physical injury as it
relates to the language in Section 9.
TAPE 04-55, SIDE B
Number 2389
CHAIR McGUIRE mentioned that there is already a public policy
that says mental intent will be disregarded if the circumstances
involving a death involve actions that are so careless as to
constitute criminal negligence. Section 9 proposes the same
policy if the circumstances result in serious physical injury
such as becoming paralyzed. She indicated that she could agree
to making the language narrower with regard to what is meant by
serious physical injury.
MR. FINK offered his belief that that aspect of Section 9 needs
to be tightened up, and indicated that he would work on some
possible alternatives to the current language. He reiterated
that criminal negligence does not involve an awareness of a
substantial risk and that the definition of serious physical
injury could involve something as simple as running into someone
riding a bicycle and breaking his/her leg.
CHAIR McGUIRE mentioned that she does have concern that serious
physical injury could involve such a circumstance, and remarked
that that issue should be clarified.
REPRESENTATIVE GARA suggested that rather than changing the
definition of serious physical injury, because it appears that
Section 9 is intended to deal with alcohol-related crimes, they
could instead alter Section 9 so that it only addresses serious
physical injuries that have been caused by those who've been
driving under the influence (DUI). He asked whether it is
already a crime to injure someone while DUI.
Number 2200
MR. FINK offered his belief that anytime alcohol is involved, a
person will meet the mens rea of reckless, which would lead to a
charge of assault in the third degree. He added:
I've defended people ... where there was no alcohol
involved where the state's charged assault [in the
third degree]. I represented someone in the valley
who was driving a friend home, it was late at night on
a pretty bad road out there, [and] they went off the
road. The friend hit their nose and broke their nose.
The state charges the driver with assault [in the
third degree]. The passenger said, "We hit a rut;
there was no alcohol." He asked the state not to
prosecute the case. The state refused [and] went for
it on the prosecution - again, no alcohol - and ... I
used the passenger as a witness at trial.
[The] guy got acquitted, but the state pursued assault
[in the third degree] on a reckless theory because of
serious physical injury being the broken nose. So
they're doing this now. [Proposed Section 9] is just
going to make it a heck of a lot easier. ... If you
want to narrow it to alcohol, put that in here. But
right now, this is going through a stop sign, this is
[talking] on the cell phone.
REPRESENTATIVE GARA asked: "Are you saying that if we limit it
to alcohol, then in effect we'll just be doing what we're
already doing currently if it's alcohol-related and you break a
nose? Is that a felony?"
MR. FINK responded:
Well, it makes it a lot easier. I mean, currently,
yes, ... if you're in an accident now and there's
alcohol involved, you're going to be charged with
assault [in the third degree] and there's a really
good possibility you're going to get convicted. In
all likelihood you'll be convicted - the jury hears
"alcohol," that's going to be reckless. [Proposed
Section 9] just makes it a lot easier to get those
convictions. So ... I think the law's fine as it is,
but if you wanted to pass this but add an alcohol
requirement, you would make it easier to get those
assault [in the third degree] charges where alcohol
was involved and there's an accident but it's below
the level of a [DUI].
REPRESENTATIVE OGG suggested looking to the workers'
compensation statutes and making the language in proposed
Section 9 dependant on the percentage of loss someone
experiences due to a serious physical injury.
REPRESENTATIVE GARA, in response to a question, suggested
perhaps using the phrase found in AS [09.17.010], "severe
permanent physical impairment or severe disfigurement".
Number 2084
SUSAN A. PARKES, Deputy Attorney General, Central Office,
Criminal Division, Department of Law (DOL), noted that the
definition of serious physical injury - AS 11.81.900(55) -
contains two provisions:
(A) physical injury caused by an act performed
under circumstances that create a substantial risk of
death; or
(B) physical injury that causes serious and
protracted disfigurement, protracted impairment of
health, protracted loss or impairment of the function
of a body member or organ, or that unlawfully
terminates a pregnancy;
MS. PARKES noted that "physical injury" is also defined in
statute. She added that her experience has been that a clean
broken arm or leg doesn't necessarily rise to the level of
serious physical injury, though it does depend on whether there
has been protracted impairment of health. She went on to say:
I'd like to also address this idea that criminal
negligence is somehow not a very heightened mental
state. As has been referenced, we have a homicide for
criminal negligence, we have [assault in the fourth
degree] that uses criminal negligence as the mental
state, and what it is, it's got to be a gross
deviation from the standard of care that a reasonable
person would observe. That's what the definition is.
Although alcohol-related cases are ... what cause us
to see a hole in the statutes, there's a loophole in
the law right now. If you, with criminal negligence,
cause physical injury by means of a dangerous
instrument, you're guilty of assault in the fourth
degree.
Number 2027
There is no provision that covers causing, with
criminal negligence, serious physical injury by means
of a dangerous instrument. So, if you do the same
conduct that you could be prosecuted in the [assault
in the fourth degree] statute for but cause serious
physical injury, there's nothing that recognizes that
heightened level of damage as is referenced in the
criminally negligent homicide [statute]; there's
nothing that recognizes that, it's still going to just
be a misdemeanor. And that appears to be just a hole
in the statutes.
MS. PARKES continued:
And I'd like to point out, actually, people ... are
charged with reckless conduct when [they have a blood
alcohol concentration (BAC) of .08] or over; we've got
statutes that cover when people are legally
intoxicated - they are per se reckless - and they are
charged under the statutes, under the recklessness.
And right now I would point out that there is an
[assault in the third degree], that if you are
reckless and cause simply physical injury by means of
a dangerous instrument, that's a felony.
So, yes, if you're drunk and you get in a car
collision and your buddy busts his nose and it's not
serious physical injury, it's still a felony. So it's
a felony to cause physical injury if you're a drunk
driver. So I just want to clear up that
misconception. But there's no statute right now that
covers criminally negligent conduct with a dangerous
instrument that causes serious physical injury, and we
need that.
REPRESENTATIVE GARA opined that unless paragraph (4) of Section
9 is limited to intoxication-related crimes, it will say that
with essentially just a tad more than just regular negligence, a
car accident case becomes a felony. He added that he would not
be comfortable with that; "I don't think we should be
considering people who make accidents, even dumb accidents,
felons.
Number 1871
MS. PARKES, in response to a question, relayed that currently,
if a person, with criminal negligence, blows through a stop sign
and puts someone in coma, the highest level of crime that that
person could be charged with would only be assault in the fourth
degree, which is a class A misdemeanor, but if someone was
killed under the same circumstances, the charge could be
homicide, which is a class B felony.
REPRESENTATIVE GARA said he could guarantee, however, that if a
person sped through a stop sign and put someone in a coma, that
person would be charged with "a recklessness crime," and that
would result in a felony. The jury is going to consider the
extent of the injury even if it's not in the jury instruction,
he predicted. He remarked, though, that he could agree to, "if
we want to do a coma definition or some sort of similar level of
injury," making that a felony.
MR. FINK suggested limiting proposed paragraph (4) of Section 9
so that it applies only to serious physical injuries as defined
in AS 11.81.900(55)(B). Currently under paragraph (4), he
opined, a broken finger could result in a felony being charged
because serious physical injury is defined as one of two things,
the first being any physical injury caused by an act performed
under circumstances that create a substantial risk of death, and
anytime someone is in "a couple-thousand-pound vehicle" going
down the road, it constitutes a circumstance that could create a
substantial risk of death. Another alternative, he suggested,
if the goal is to get at circumstances involving alcohol
consumption, would be to alter page 6, line 24, to say in part,
"after the consumption of alcohol and with criminal negligence
causes". Doing such would tie the alcohol consumption with the
criminal negligence.
Number 1742
MR. FINK next directed attention to the provision pertaining to
violation of a custodian's duty - Section 12. He said:
I would just like the committee to know, most
custodians take their duties very, very seriously. I
think the committee was correct in identifying the
larger problems [as] far too many people are put under
a third-party restriction - which costs them their
jobs, keeps them incarcerated for, oftentimes, a
significant period of time before their "Rule 45ers"
(ph) seek trial-right routes - and they might even ...
then be found innocent or acquitted at a trial, and
yet, effectively, they've served a sentence and been
presumed guilty, really, because they can't get a
third-party [custodian]. I think that's the bigger
problem; ... I'd love if the committee would address
the third-party custodian problem.
Having said that, ... I would just like to say, I
think the current contempt statute is sufficient.
Right now it is difficult to get [third-party
custodians]. You almost can't work; the judge tells
you about the contempt possibility, that you could be
looking at ... six months in jail [and a] $300 fine.
You know, it's something oftentimes people are on the
fence [about], and you can't have a criminal record,
you have to have the time to do it, and I'm concerned
that this provision ... is really put in there to kind
of bully potential [third-party custodians] so that
they can be frightened more. I mean, if you're on the
fence and then the [district attorney] says, "Well,
you know you could go to jail for a year and have a
$10,000 fine if you don't ... report this person,"
well you've just upped the stakes significantly.
And I think at the margins you've made it that much
more difficult for [third-party candidates] to get ...
decent people without criminal histories that are kind
of on the fence; well, you've just kind of given them
a little extra push on getting off that fence ... [so
they] don't agree to do that. And I think the
upshot's going to be [that] more people stay in jail
for longer periods of time because they can't get
[third-party custodians]. I think our statutes, with
contempt, are adequate now. In the event the
committee was going to go forward with this section, I
would ask them to limit it to a class B misdemeanor,
which doubles the current penalties under the contempt
law.
Number 1608
MR. FINK continued:
And I'd ask that the committee consider putting
"knowingly" on line 20 between "person" and "fails".
That's because ... right now, if there's no mens rea
or culpable state listed, it's knowingly as to conduct
[and] reckless as to circumstance, and I'm concerned
that ... [if a young person] goes out the window at 3
in the morning [and the] parents don't catch it until
[later in] the morning, you could potentially make an
argument [that] they were reckless as to that
circumstance. You could ... threaten prosecution
where there really was no bad behavior on the part of
the [third-party custodian]. And so I would ask that
you put "knowingly" in there to at least indicate the
culpable state to that - the knowing failure, which
means you have to know about the violation.
And again, I think limiting [it] to [a] class B
misdemeanor, which doubles the current penalties,
would be sufficient but not as onerous as -- you know,
it's scary when someone's there, never been to court
before, offers themselves as a third-party
[custodian], when the judge then says, "You realize
you could go to jail for a year and pay $10,000 if you
don't report this person." It's just a scary thing,
and it's going to discourage ... [third-party
custodians], and the upshot is, there are going to be
fewer [third-party custodians].
CHAIR McGUIRE relayed that the issue of a lack of mental intent
had been noted at a prior hearing on the bill.
MS. PARKES clarified that although a class A misdemeanor would
double the current penalty, a class B misdemeanor would reduce
that penalty by half. She noted that Section 12 proposes to
charge a class A misdemeanor when the failure pertains to a
felon, and a class B misdemeanor when the failure pertains to a
misdemeanant.
REPRESENTATIVE GRUENBERG mentioned that he has long been in
favor of creating a class C misdemeanor, which would have a
maximum jail sentence of 30 days, and suggested that perhaps
Section 12 ought to be altered to that effect.
Number 1502
MS. PARKES said she did not want to reduce the penalty that low.
She indicated that the differentiation in the penalties
currently provided for in Section 12 adequately addresses the
differences in the seriousness of the responsibility of being a
third-party custodian for a felon as compared to being one for a
misdemeanant.
REPRESENTATIVE GRUENBERG remarked:
On a policy basis and a constitutional basis, there is
a right to bail. And all we want, as a society, is to
be sure that they obey the conditions and that they
don't flee. And assume for the purposes of discussion
that there is a problem in finding third-party
custodians, how do we solve that problem?
MS. PARKES said she does not know the answer to that, but
agrees, to an extent, that third-party requirements may be being
used too often by magistrates and judges. "I think it's become
very routine to require it, and maybe that needs to be looked
at," she remarked, adding, "My view is, though, anyone who ...
isn't planning to neglect their duties as a third-party
[custodian] is not going to be put off by being told there's
potentially criminal liability, which they're already told -
this really doesn't change that ... in any way."
REPRESENTATIVE GRUENBERG said he'd like to see both sides -
prosecutors and defense attorneys - come up with some guidelines
regarding when a judge or a magistrate is to appoint a third-
party custodian.
MS. PARKES, noting that there are provisions in the bail statute
that speak to when the courts should appoint a third-party
custodian, said she'd be happy to research that issue at a later
time to see whether that statute is being applied properly, but
doesn't anticipate anything to that effect being done with the
current bill.
REPRESENTATIVE GRUENBERG suggested that they should either fix
Section 12 to everyone's satisfaction or take it out altogether
until more work is done on the issue. He asked Ms. Parkes which
option she prefers.
MS. PARKES remarked that she does not accept the assumption that
Section 12, as written, will discourage people from agreeing to
be third-party custodians. Violation of a custodian's duties is
already a criminal offense; Section 12 will merely provide a
cleaner way to prosecute it and is not a major change, she
opined.
Number 1291
REPRESENTATIVE GARA commented:
The reality as I see it is, this crime bill is
probably going to move. The reality as a I see it is,
if next year somebody comes up with a bill to make it
harder to impose third-party custodianship, it's not
going to pass. So if we're going to address that
issue in a way that's acceptable to everybody, now is
the time to do it. ... I'm not able to do this, [so] I
would entertain any language that any of ... you feel
is reasonable to put some limits on the circumstances
where third-party custodianship is required by judges.
This committee can't stop the judges from interpreting
the current law the way they are interpreting it, so
that's not going to happen. We need more guidance in
the statute, apparently.
And I would say that if we make it very difficult for
judges to impose third-party custodianship, that
amendment's not going to pass, but if we can come up
with some limited way just to make [it] more clear
that third-party custodianships should not be granted
so reflexively, I think that probably will pass. So
if anybody can come up with any suggested language to
the current third-party custodianship statute on the
standards applicable to when you require third-party
custodianship, ... I will try and offer an amendment.
...
CHAIR McGUIRE suggested to Mr. Fink that he check with someone
with the Alaska Superior Court because, according to prior
testimony by Ms. Brink, it appears that the Alaska Superior
Court applies the current statutory standards more consistently
than do magistrates.
REPRESENTATIVE GRUENBERG asked Ms. Parkes to do what she could
to help solve the problem.
MR. FINK relayed that he would work on that issue.
Number 1147
MR. FINK next turned attention to Section 5 of the proposed CS.
He said:
Section 5 ... makes it a felony to provide alcohol to
a minor in a local option area. ... I almost find this
the most outrageous section in the bill. This is
going to "felonize" conduct that I don't believe the
public believes is felony conduct. It's also going to
grossly discriminate between rural and urban
residents.
MR. FINK offered the following scenarios:
[If you are] 22-years-old and you give your 20-year-
old brother a beer in Anchorage, if it's ever even
prosecuted you may get a fine and maybe suspended
time. If you're in the Bush, you've just made that a
felony. That means that 22-year-old can't join the
... the military, now is a felon for the same conduct
that in the urban areas would be a slap on the hand.
I think this section just goes simply too far. I have
spoken with the [Alaska Native Justice Center, Inc.],
... I know they're adamantly opposed to this from my
conversations with them. ... You're "felonizing"
conduct in the Bush that's not a felony in the urban
areas, and I just think there's a real problem with
this.
CHAIR McGUIRE noted that that point was raised by the Public
Defender Agency during a prior hearing on the proposed CS. She
pointed out that currently such behavior is already a class A
misdemeanor, and so the penalty can't be raised without moving
into the felony arena. She also noted that just by virtue of
allowing local option areas to begin with, similar behavior is
treated differently in urban and rural areas: Someone in
Anchorage can go to a liquor store and buy alcohol, but someone
in a dry or damp village cannot do the same thing without it
being considered criminal conduct and thus he/she would be
subject to criminal penalties. She opined that although it's a
good argument to say that a felony conviction is with someone
forever, Section 5 sends the message that in local option areas,
such conduct does rise to a different level because of all of
the problems that come about due to alcohol abuse in those
areas.
MS. PARKES relayed that [the DOL] contacted the Bush caucus and
spoke with Representative Kapsner, the chair, on this issue;
Representative Kapsner expressed concern about the heightened
penalties but supports them overall because if a village or
community made the decision to go dry or damp, it is because of
the recognition that alcohol has been such a social scourge on
that community or village.
REPRESENTATIVE GRUENBERG suggested as a solution adding language
to the effect that the behavior referred to in Section 5 would
be felony in a location that had gone dry or damp if that
locality voted to make the behavior a felony.
MR. FINK expressed approval of Representative Gruenberg's
suggestion.
Number 0821
MR. FINK then turned attention to Sections 13 and 14 of the
proposed CS. He said:
On Section 13 I would just indicate ... [that] you are
disenfranchising an entire group of the citizenry from
self defense. ... Let's say you're a prostitute - and
we just had a trial in Anchorage on this - and your
john attacks you, under this language you lose the
right to self defense. ... [let's say you're] in a bar
and you're 20-years-old and you have a fake ID - and
we just had a tragedy ... last week ... with some
rough conduct in a bar that ... potentially led to a
death - ... if you're in a bar underage ... and
someone attacks you, ... you can't defend yourself.
So I would just suggest to the committee [that] this
language ... way overreaches .... And I understand
what the [district attorney] is trying to do, but it
needs some significant work.
REPRESENTATIVE GARA asked why the latter example would result in
not being able to defend oneself.
MR. FINK said it is because the person has a criminal objective,
since being in a bar while underage is illegal. He noted that
the language in the bill says, "acting alone or with others",
and so it wouldn't matter that the person is in the bar by
himself/herself. He mentioned that the Senate altered this
provision in the Senate version of the bill, and thus took care
of his concern; he suggested that the committee follow the
Senate's lead on this issue and adopt a similar amendment.
MS. PARKES relayed that a similar amendment is in members'
packets and that it proposes to require that the person come
armed with a deadly weapon and that felonious criminal conduct
or a felonious drug transaction take place.
Number 0656
MR. FINK, in closing, offered the following regarding HB 244:
I understand that we want to ... be safe in our homes,
safe in public, but I would suggest [that] this
legislation last year grossly overreached. And
because of outcries, particularly on [the] self
defense [provisions], it was held on to and it's back
before the legislature now and it's in better shape.
However, while we want to be safe in our homes and in
public, we also don't want to live in a police state.
I would suggest [that] in certain [provisions], this
bill criminalizes conduct in a way that is
disproportionate to the conduct, and criminalizes
conduct [that] the public doesn't consider criminal.
So while ... the district attorney might say, or law
enforcement might say [that] this is an important tool
for us, that, really, said another way, ... will
lessen the level of civil rights, lessen the level of
protection for our citizenry. So from a philosophical
perspective, I understand what the committee is trying
to do and what the [district attorney] wants, but just
keep in mind ... [that] this is a free society, and to
the extent [that] you give law enforcement more tools,
you are diminishing citizenry's rights and legal
protections. And with that I would just thank you for
allowing me to testify.
CHAIR McGUIRE asked that forthcoming amendments be in writing
and be made available to members before the bill's next hearing.
She indicated that a representative from the Department of
Public Safety has been on line and available for questions, and
that a representative from the Public Defender Agency might
provide possible amendments at the bill's next hearing.
[HB 244 was held over.]
ADJOURNMENT
Number 0503
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 4:30 p.m.
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