03/28/2011 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB169 | |
| SB61 | |
| HB171 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 169 | TELECONFERENCED | |
| + | SB 61 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 171 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 28, 2011
1:11 p.m.
MEMBERS PRESENT
Representative Carl Gatto, Chair
Representative Wes Keller
Representative Bob Lynn
Representative Lance Pruitt
Representative Lindsey Holmes
MEMBERS ABSENT
Representative Steve Thompson, Vice Chair
Representative Max Gruenberg
Representative Mike Chenault (alternate)
COMMITTEE CALENDAR
HOUSE BILL NO. 169
"An Act relating to the review of proposed regulations by the
Legislative Affairs Agency; and providing for an effective
date."
- MOVED HB 169 OUT OF COMMITTEE
COMMITTEE SUBSTITUTE FOR SENATE BILL NO. 61(STA)
"An Act making corrective amendments to the Alaska Statutes as
recommended by the revisor of statutes; and providing for an
effective date."
- MOVED CSSB 61(STA) OUT OF COMMITTEE
HOUSE BILL NO. 171
"An Act relating to arrests without warrants by peace officers
for certain misdemeanors."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 169
SHORT TITLE: LAA REVIEW OF PROPOSED REGULATIONS
SPONSOR(S): JUDICIARY
02/23/11 (H) READ THE FIRST TIME - REFERRALS
02/23/11 (H) JUD
02/23/11 (H) STA REFERRAL ADDED BEFORE JUD
03/15/11 (H) STA AT 8:00 AM CAPITOL 106
03/15/11 (H) Heard & Held
03/15/11 (H) MINUTE(STA)
03/17/11 (H) STA AT 8:00 AM CAPITOL 106
03/17/11 (H) Scheduled But Not Heard
03/22/11 (H) STA AT 8:00 AM CAPITOL 106
03/22/11 (H) Moved Out of Committee
03/22/11 (H) MINUTE(STA)
03/23/11 (H) STA RPT 5DP 1NR 1AM
03/23/11 (H) DP: JOHANSEN, P.WILSON, KELLER,
PETERSEN, LYNN
03/23/11 (H) NR: SEATON
03/23/11 (H) AM: GRUENBERG
03/28/11 (H) JUD AT 1:00 PM CAPITOL 120
BILL: SB 61
SHORT TITLE: 2011 REVISOR'S BILL
SPONSOR(S): RULES BY REQUEST OF LEGISLATIVE COUNCIL
01/24/11 (S) READ THE FIRST TIME - REFERRALS
01/24/11 (S) STA, JUD
02/15/11 (S) STA AT 9:00 AM BUTROVICH 205
02/15/11 (S) Heard & Held
02/15/11 (S) MINUTE(STA)
02/17/11 (S) STA AT 9:00 AM BUTROVICH 205
02/17/11 (S) Moved CSSB 61(STA) Out of Committee
02/17/11 (S) MINUTE(STA)
02/21/11 (S) STA RPT CS 2DP 3NR SAME TITLE
02/21/11 (S) DP: WIELECHOWSKI, MEYER
02/21/11 (S) NR: KOOKESH, PASKVAN, GIESSEL
02/28/11 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/28/11 (S) Heard & Held
02/28/11 (S) MINUTE(JUD)
03/09/11 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/09/11 (S) Moved CSSB 61(STA) Out of Committee
03/09/11 (S) MINUTE(JUD)
03/11/11 (S) JUD RPT CS(STA) 3DP 1NR
03/11/11 (S) DP: FRENCH, WIELECHOWSKI, MCGUIRE
03/11/11 (S) NR: COGHILL
03/16/11 (S) TRANSMITTED TO (H)
03/16/11 (S) VERSION: CSSB 61(STA)
03/18/11 (H) READ THE FIRST TIME - REFERRALS
03/18/11 (H) JUD
03/28/11 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 171
SHORT TITLE: ARRESTS FOR MISDEMEANORS
SPONSOR(S): MUNOZ BY REQUEST
02/25/11 (H) READ THE FIRST TIME - REFERRALS
02/25/11 (H) JUD
03/25/11 (H) JUD AT 1:00 PM CAPITOL 120
03/25/11 (H) Heard & Held
03/25/11 (H) MINUTE(JUD)
03/28/11 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
SARAH MUNSON, Staff
Representative Carl Gatto
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 169 on behalf of the sponsor,
the House Judiciary Standing Committee, chaired by
Representative Gatto.
LISA KIRSCH, Attorney
Legislative Legal Counsel
Legislative Legal and Research Services
Legislative Affairs Agency (LAA)
Juneau, Alaska
POSITION STATEMENT: As one of the drafters, responded to
questions during discussion of HB 169.
DEBORAH BEHR, Chief Assistant Attorney General - Statewide
Section Supervisor
Legislation & Regulations Section
Civil Division (Juneau)
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Provided comments during discussion of
HB 169.
KATHRYN KURTZ, Assistant Revisor of Statutes
Legislative Legal Counsel
Legislative Legal and Research Services
Legislative Affairs Agency (LAA)
Juneau, Alaska
POSITION STATEMENT: As an assistant revisor of statutes,
presented SB 61 on behalf of the Senate Rules Standing
Committee, sponsor by request of Legislative Council.
KENDRA KLOSTER, Staff
Representative Cathy Munoz
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: During discussion of HB 171, responded to
questions and comments on behalf of Representative Munoz,
sponsor by request.
QUINLAN STEINER, Director
Central Office
Public Defender Agency (PDA)
Department of Administration (DOA)
Anchorage, Alaska
POSITION STATEMENT: Responded to questions during discussion of
HB 171, and expressed concerns.
GERALD LUCKHAUPT, Assistant Revisor of Statutes
Legislative Legal Counsel
Legislative Legal and Research Services
Legislative Affairs Agency (LAA)
Juneau, Alaska
POSITION STATEMENT: As the drafter, provided comments and
responded to questions during discussion of HB 171.
ACTION NARRATIVE
1:11:34 PM
CHAIR CARL GATTO called the House Judiciary Standing Committee
meeting to order at 1:11 p.m. Representatives Gatto, Lynn,
Keller, and Holmes were present at the call to order.
Representative Pruitt arrived as the meeting was in progress.
Representative Thompson was excused.
HB 169 - LAA REVIEW OF PROPOSED REGULATIONS
1:12:20 PM
CHAIR GATTO announced that the first order of business would be
HOUSE BILL NO. 169, "An Act relating to the review of proposed
regulations by the Legislative Affairs Agency; and providing for
an effective date."
The committee took an at-ease from 1:13 p.m. to 1:15 p.m.
1:15:23 PM
SARAH MUNSON, Staff, Representative Carl Gatto, Alaska State
Legislature, on behalf of the sponsor, the House Judiciary
Standing Committee, chaired by Representative Gatto, explained
that [by amending AS 24.20.105(e),] HB 169 would fix problems
with the statutes pertaining to regulation review. Existing
AS 24.20.105 enumerates who can request Legislative Legal and
Research Services to conduct a review of proposed regulations -
a standing committee, the Administrative Regulation Review
Committee, and Legislative Council - and who Legislative Legal
and Research Services is allowed to notify of the results of
such a review when it finds a problem with the proposed
regulations - the Administrative Regulation Review Committee,
the president of the Senate, and the speaker of the House of
Representatives. The existing statute does not, however,
currently allow the standing committee or the Legislative
Council that requested the review to be notified of such
results, and HB 169 would address this problem by adding those
entities to the list of those who could be notified.
Furthermore, in order to address situations involving a review
of proposed regulations implementing newly enacted legislation,
HB 169 would add language allowing the prime sponsor of such
legislation to also be consulted by Legislative Legal and
Research Services during the review and to be notified of the
results of the review if a problem with the proposed regulations
is found. The bill would also add language allowing Legislative
Legal and Research Services to notify the requester of the
review in situations where no problem with the proposed
regulations is found.
MS. MUNSON mentioned that under the bill, when proposed
regulations are found to have a problem, notification must be
made in writing, but when no problem is found, notification may
be communicated by [other, less formal means]. She also
mentioned that some people have expressed concern that HB 169
would alter how regulations are promulgated, but pointed out
that those concerns are unfounded because the bill only pertains
to Legislative Legal and Research Services' review of, and
subsequent communications regarding, proposed regulations.
CHAIR GATTO indicated that HB 169 was developed at his request.
MS. MUNSON, in response to questions, reiterated that under
existing law, reviews may be requested by a standing committee,
the Administrative Regulation Review Committee, or Legislative
Council; and offered her understanding that when a problem with
proposed regulations is found by Legislative Legal and Research
Services, just the chair of the committee or council that
requested the review would be notified.
REPRESENTATIVE HOLMES indicated interest in possibly expanding
the list of who could be notified.
1:22:15 PM
LISA KIRSCH, Attorney, Legislative Legal Counsel, Legislative
Legal and Research Services, Legislative Affairs Agency (LAA),
as [one of the drafters], explained that under Alaska's
Administrative Procedure Act (APA), all legislators get notice
of proposed regulations, and so if an individual legislator has
an interest in a particular proposed regulation but is not a
member of one of the aforementioned legislative bodies, under
other provisions of existing AS 24.20, he/she could still
request a legal opinion on the proposed regulation, which would
then undergo a similar, confidential review as that provided for
under AS 24.20.105. In response to a question about the phrase,
"consult with", as used on page 1, lines 6 and 9, she explained
that under current law, when conducting a review of proposed
regulations, Legislative Legal and Research Services is allowed
to discuss the proposed regulation and the issues surrounding it
with the Department of Law (DOL), the requesting legislative
body, and the state agency proposing the regulatory change.
Under the bill, in conducting a review of proposed regulations
implementing newly enacted legislation, Legislative Legal and
Research Services would also be able to discuss those things
with the sponsor of the enabling legislation.
MS. MUNSON - in response to a question about the term,
"statutory standards" as used in the sponsor statement -
clarified that under existing AS 24.20.105(d)(1)-(3), in
reviewing a proposed regulation, Legislative Legal and Research
Services is required to evaluate the legality and
constitutionality of the proposed regulation; whether the state
agency has the statutory authority to adopt the proposed
regulation in order to implement, interpret, make specific, or
otherwise carry out a statute; and whether the proposed
regulation is consistent with the applicable statutes.
MS. KIRSCH noted that during such reviews, Legislative Legal and
Research Services also evaluates whether a proposed regulation
is consistent with legislative intent - at least in so far as
such can be determined.
CHAIR GATTO, after ascertaining that no one else wished to
testify, closed public testimony on HB 169.
1:33:39 PM
DEBORAH BEHR, Chief Assistant Attorney General - Statewide
Section Supervisor, Legislation & Regulations Section, Civil
Division (Juneau), Department of Law (DOL), in response to
questions and comments, indicated that the existing limitations
under AS 24.20.105 regarding who may request a Legislative Legal
and Research Services' review of a proposed regulation and who
receives notification of the results of such a review were meant
to ensure that a review didn't take on a life of its own,
particularly when the proposed regulation raised constitutional
issues. She, too, noted that under Alaska's Administrative
Procedure Act (APA), all legislators get notice of proposed
regulations, and that under other provisions of AS 24.20, any
legislator may request a review of a proposed regulation from
Legislative Legal and Research Services.
CHAIR GATTO indicated that he is disinclined to further expand
the bill's proposed list of who is notified of review results.
MS. KIRSCH, in response to a question, clarified that the bill
is not proposing to expand the list of who can request a review
under AS 24.20.105; reiterated aspects of Ms. Munson's
explanation of the bill; and pointed out that if a legislator
isn't specifically entitled under AS 24.20.105 to receive
notification of the results of a review conducted under that
provision, he/she could simply ask Legislative Legal and
Research Services to conduct a review of the proposed regulation
under other provisions of AS 24.20.
REPRESENTATIVE KELLER expressed favor with keeping the bill's
proposed list of who may receive notification of review results
under AS 24.20.105 as is.
1:40:45 PM
REPRESENTATIVE PRUITT moved to report HB 169 out of committee
with individual recommendations and the accompanying fiscal
notes. There being no objection, HB 169 was reported from the
House Judiciary Standing Committee.
The committee took an at-ease from 1:41 p.m. to 1:43 p.m.
SB 61 - 2011 REVISOR'S BILL
1:43:16 PM
CHAIR GATTO announced that the next order of business would be
CS FOR SENATE BILL NO. 61(STA), "An Act making corrective
amendments to the Alaska Statutes as recommended by the revisor
of statutes; and providing for an effective date."
1:43:35 PM
KATHRYN KURTZ, Assistant Revisor of Statutes, Legislative Legal
Counsel, Legislative Legal and Research Services, Legislative
Affairs Agency (LAA), explained that revisor's bills are
prepared annually to correct or remove deficiencies, obsolete
provisions, and conflicts in statute; and that members' packets
contain a sectional analysis of SB 61. [Sections 6-8, 14, 23-
35, 39-40, and 44 would amend various provisions in Titles 9,
18, 22, 24, 33, 36, 39-40, and 44] to create uniformity among
the statutory references to the administrative director of the
Alaska Court System (ACS). [Sections 1 and 36-37 would change
references in AS 03.22.050 and AS 38.07] to the United States
Soil Conservation Service, to references to the United States
Department of Agriculture, Natural Resources Conservation
Service, to reflect a 1994 renaming of that service.
Sections 42 and 45 would amend references to federal laws [in
AS 42.06.430(7)(A) and AS 45.68.120(a)] to reflect renumbering
changes in those referenced federal laws. [Sections 10-12 would
remove references in AS 14.40.809(b) and AS 14.42.015(a) and
(d)] to Sheldon Jackson College because that institution no
longer exists.
MS. KURTZ explained that Sections 15, 18-19, and 41 would delete
obsolete, and therefore unnecessary, date references in
[provisions of AS 29, and in AS 42.04.080(b)]. Section 2 would
add a definition of the term, "department" in AS 08.02 to
clarify that as used in that chapter, that term means the
Department of Commerce, Community & Economic Development
(DCCED). Section 9 would make a conforming change in AS
14.07.020(a)(16)(B) by replacing the term, "math" with the term,
"mathematics", which is the term used elsewhere in Alaska's
statutes.
MS. KURTZ, in response to a question, clarified that for
purposes of avoiding the use of a split infinitive in
AS 14.40.809(b)(5), [Section 10] is also proposing to replace
the phrase, "to annually report on", with the phrase, "to report
annually on". In response to further questions, she reiterated
that [Sections 10-12] are proposing to delete the obsolete
references to Sheldon Jackson College, and explained that
although the legislature could choose to remove [Sections 10-12
of the bill - thereby leaving existing AS 14.40.809(b) and AS
14.42.015(a) and (d) as is] - retaining the references to
Sheldon Jackson College could put [the Board of Regents of the
University of Alaska and the Alaska Commission on Postsecondary
Education] in the difficult position of being statutorily
required to treat with, and include individuals from, a
nonexistent entity. Should another private college come to the
legislature's attention at some point, then the legislature
could decide at that time whether to add the appropriate
statutory references via a substantive bill.
CHAIR GATTO indicated favor with the bill's proposal to delete
the obsolete references to Sheldon Jackson College; retaining
such references would only serve to mislead people, he
predicted. In response to a question, he pointed out that even
if the legislature was already considering other private
colleges, it couldn't insert statutory references to any of them
via SB 61 because SB 61 is a revisor's bill and as such is
precluded from proposing substantive changes.
MS. KURTZ, in response to comments, ventured that perhaps
researching legislative history could provide insight into the
reasoning behind the initial inclusion of references to Sheldon
Jackson College in AS 14.40.809(b) and AS 14.42.015(a) and (d).
2:00:06 PM
REPRESENTATIVE KELLER moved to report CSSB 61(STA) out of
committee with individual recommendations and the accompanying
fiscal notes. There being no objection, CSSB 61(STA) was
reported from the House Judiciary Standing Committee.
The committee took an at-ease from 2:01 p.m. to 2:03 p.m.
HB 171 - ARRESTS FOR MISDEMEANORS
2:03:41 PM
CHAIR GATTO announced that the final order of business would be
HOUSE BILL NO. 171, "An Act relating to arrests without warrants
by peace officers for certain misdemeanors."
2:04:06 PM
REPRESENTATIVE HOLMES made a motion to adopt Conceptual
Amendment 1, which read [original punctuation provided]:
Page 2, line 5
following "AS 11.41":
Insert "and there is reasonable cause to
believe arrest without warrant is a practical
necessity to prevent imminent physical harm to the
public"
CHAIR GATTO objected.
REPRESENTATIVE HOLMES ventured that Conceptual Amendment 1 would
address the concerns raised during HB 171's last hearing that
the bill would allow warrantless arrests for all misdemeanor
offenses against a person, even very low-level offenses such as
reckless endangerment, and those wherein no additional danger to
the public exists if someone isn't arrested.
2:07:30 PM
KENDRA KLOSTER, Staff, Representative Cathy Munoz, Alaska State
Legislature, on behalf of Representative Munoz, sponsor of
HB 171 by request, in response to a question, indicated that
many other states do allow, to some degree or another,
warrantless arrests for certain misdemeanor offenses committed
outside the presence of an officer. The sponsor, she relayed,
feels that when a person [poses a danger to others,] he/she
should be removed from the [vicinity]. Similar to the laws in
some other states, HB 171 would only apply in situations
involving a misdemeanor offense against a person. She noted
that members' packets contain a memorandum by Legislative Legal
and Research Services detailing the specifics of the
warrantless-arrest authority granted in other states.
REPRESENTATIVE KELLER expressed concern that Conceptual
Amendment 1 wouldn't actually narrow the bill much, and that
insufficiently-trained law enforcement officers could still end
up abusing the arrest authority granted by the bill.
MS. KLOSTER relayed that the concept of HB 171 was brought forth
by the Juneau Police Department (JPD), and that other law
enforcement organizations throughout Alaska have also requested
the type of warrantless-arrest authority the bill would provide
for. The goal, however, is to sufficiently narrow the bill
while still giving law enforcement officers an adequate tool
with which to address situations that involve imminent danger to
the public. She offered her understanding, and hope, that law
enforcement officers already receive the training necessary to
make determinations about whether there is probable cause to
make an arrest and whether the behavior in question constitutes
an offense against a person.
REPRESENTATIVE PRUITT expressed concern that the warrantless-
arrest authority being granted by the bill would still be abused
regardless of the training law enforcement officers receive.
2:15:51 PM
QUINLAN STEINER, Director, Central Office, Public Defender
Agency (PDA), Department of Administration (DOA), in response to
a question, paraphrased portions of AS 11.41.250, AS 11.41.230,
and AS 11.41.220 to illustrate what kinds of activities could
constitutes the misdemeanor crime of reckless endangerment, what
kinds of activities could constitute the misdemeanor crime of
assault in the fourth degree, and what kinds of activities could
constitute the felony crime of assault in the third degree.
REPRESENTATIVE LYNN [speaking as a former law enforcement
officer] opined that police officers are already cognizant of
the substantial consequences of making a false arrest,
particularly given that anytime they are called to a scene or
come across a situation, they are faced with the decision of
whether or not to arrest somebody - such decision-making is
already part of their job.
MR. STEINER, in response to a question, said that the language
of Conceptual Amendment 1 does appear to "reduce the discretion
in a definable way, to kind of mimic what the other parts of ...
[AS 12.25.030(b)] are getting at, which is inferred exigency or
some necessary reason for concluding that if something doesn't
happen now, the public's at risk"; in so doing, Conceptual
Amendment 1 somewhat targets one of the concerns he has with
HB 171. He pointed out, however, that a police officer would
still have to make a judgment call regarding whether, at that
moment, there's a practical reason for trying to control the
situation by making an arrest. Furthermore, because there is no
statutory time limit by which the state must act to indict
someone arrested for a misdemeanor offense, such cases tend to
go on quite a bit longer without judicial or state review than
what occurs with a felony case, which, by statute, must be acted
upon within 10 days of the person being put in jail.
Theoretically, therefore, adoption of Conceptual Amendment 1
would limit the proposed warrantless-arrest authority to only
those situations in which there is a physical danger to the
public if someone isn't arrested, thereby mitigating the bill's
potential to further increase law enforcement's already-
substantial misdemeanor workload.
REPRESENTATIVE HOLMES - in response to questions/comments
regarding Conceptual Amendment 1's use of the phrase, "imminent
physical harm to the public" - indicated that she would be
amenable to replacing that language with the phrase, "imminent
physical harm to a person".
2:23:36 PM
GERALD LUCKHAUPT, Assistant Revisor of Statutes, Legislative
Legal Counsel, Legislative Legal and Research Services,
Legislative Affairs Agency (LAA), as the drafter of HB 171,
concurred that Conceptual Amendment 1 would narrow the [arrest]
discretion that would be available under the bill, and
acknowledged that in some situations involving misdemeanor
offenses against a person, law enforcement officers simply
aren't going to be able to show that physical harm would occur
absent an immediate arrest. He added that he would be able to
draft appropriate replacement language for Conceptual
Amendment 1. In response to questions and comments, he offered
his understanding that the fact of an arrest does stay on a
person's record even if he/she isn't convicted; that for
purposes of the criminal justice system, juveniles are treated
differently than adults and by statute cannot be held in adult
jails; that law enforcement officers must still have probable
cause to make an arrest regardless of what the offense is and
HB 171 wouldn't change that; and that with the other offenses
for which law enforcement officers are already permitted to make
a warrantless arrest without having witnessed the offense -
whether felony or misdemeanor - officers are already making such
probable-cause determinations. In conclusion, he surmised that
law enforcement officers' responsibility to make good choices
and apply their training would somewhat increase under the bill,
which currently addresses seven misdemeanor offenses against a
person.
REPRESENTATIVE KELLER indicated that he'd been considering a
conceptual amendment that would allow for a warrantless arrest
for the crimes addressed by the bill [only] if the victim
expressed or claimed fear of being in imminent danger absent an
arrest of the alleged perpetrator.
REPRESENTATIVE PRUITT, referring to testimony heard during
HB 171's last hearing, offered his understanding that law
enforcement officers are in favor of the bill because they
believe that their current inability to make a warrantless
arrest for certain misdemeanor offenses against a person
committed outside their presence does put the public in imminent
danger.
CHAIR GATTO, in response to a question, surmised that [having
the warrantless-arrest authority proposed by the bill for the
misdemeanor offenses outlined therein] would better allow law
enforcement officers to put end to whatever crisis they are
responding to.
REPRESENTATIVE PRUITT indicated disfavor with the bill's current
language.
CHAIR GATTO relayed that HB 171 would be held over [with the
motion to adopt Conceptual Amendment 1 left pending].
2:37:28 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 2:37 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB169 Sponsor Statement 03-08-11.pdf |
HJUD 3/28/2011 1:00:00 PM |
HB 169 |
| HB169 Version A 02-23-11.pdf |
HJUD 3/28/2011 1:00:00 PM |
HB 169 |
| HB169 Relevant Statutes 24.20.105.pdf |
HJUD 3/28/2011 1:00:00 PM |
HB 169 |
| HB169 Fiscal Note-LEG-COU 03-10-2011.pdf |
HJUD 3/28/2011 1:00:00 PM |
HB 169 |
| HB169 Supporting Documents-Memo Legal Services 02-18-11.pdf |
HJUD 3/28/2011 1:00:00 PM |
HB 169 |
| SB61 Sectional Analysis 03-21-11.pdf |
HJUD 3/28/2011 1:00:00 PM |
SB 61 |
| SB61 Version B 01-24-11.pdf |
HJUD 3/28/2011 1:00:00 PM |
SB 61 |
| SB61 CS (STA) Version I 02-21-11.pdf |
HJUD 3/28/2011 1:00:00 PM |
SB 61 |