Legislature(1997 - 1998)

03/21/1998 10:07 AM STA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
       HOUSE STATE AFFAIRS STANDING COMMITTEE                                  
                   March 21, 1998                                              
                     10:07 a.m.                                                
                                                                               
                                                                               
MEMBERS PRESENT                                                                
                                                                               
Representative Jeannette James, Chair                                          
Representative Ivan Ivan, Vice Chairman                                        
Representative Ethan Berkowitz                                                 
Representative Fred Dyson                                                      
Representative Kim Elton                                                       
                                                                               
MEMBERS ABSENT                                                                 
                                                                               
Representative Mark Hodgins                                                    
Representative Al Vezey                                                        
                                                                               
COMMITTEE CALENDAR                                                             
                                                                               
SENATE BILL NO. 307 am                                                         
"An Act relating to conditions for filling vacancies in the office             
of United States senator; and providing for an effective date."                
                                                                               
     - MOVED HCSSB 307(STA) OUT OF COMMITTEE                                   
                                                                               
HOUSE BILL NO. 462                                                             
"An Act relating to the contents of certain state documents."                  
                                                                               
     - MOVED CSHB 462(STA) OUT OF COMMITTEE                                    
                                                                               
* HOUSE BILL NO. 466                                                           
"An Act relating to violations of state election laws."                        
                                                                               
     - HEARD AND HELD                                                          
                                                                               
HOUSE BILL NO. 468                                                             
"An Act relating to damages awarded in complaints before the State             
Commission for Human Rights."                                                  
                                                                               
     - SCHEDULED BUT NOT HEARD                                                 
                                                                               
(* First public hearing)                                                       
                                                                               
PREVIOUS ACTION                                                                
                                                                               
BILL: SB 307 AM                                                                
SHORT TITLE: U.S. SENATE VACANCIES                                             
SPONSOR(S): SENATOR(S) HALFORD, Leman, Green, Miller, Torgerson,               
Pearce, Ward, Phillips, Taylor, Kelly                                          
                                                                               
Jrn-Date    Jrn-Page           Action                                          
 2/16/98      2525     (S)  READ THE FIRST TIME - REFERRAL(S)                  
 2/16/98      2525     (S)  JUDICIARY                                          
 3/02/98               (S)  JUD AT  1:30 PM BELTZ ROOM 211                     
 3/02/98               (S)  MINUTE(JUD)                                        
 3/03/98               (S)  RLS AT 11:35 AM FAHRENKAMP RM 203                  
 3/03/98               (S)  MINUTE(RLS)                                        
 3/03/98      2716     (S)  JUD RPT      2DP 1NR                               
 3/03/98      2716     (S)  DP: TAYLOR, MILLER    NR: PARNELL                  
 3/03/98      2716     (S)  ZERO FISCAL NOTE (GOV)                             
 3/04/98      2735     (S)  RULES TO CALENDAR  3/4/98                          
 3/04/98      2737     (S)  READ THE SECOND TIME                               
 3/04/98      2737     (S)  ADVANCED TO THIRD READING UNAN                     
                            CONSENT                                            
 3/04/98      2737     (S)  READ THE THIRD TIME  SB 307                        
 3/04/98      2737     (S)  COSPONSOR: KELLY                                   
 3/04/98      2737     (S)  PASSED Y19 N1                                      
 3/04/98      2737     (S)  EFFECTIVE DATE(S) SAME AS PASSAGE                  
 3/04/98      2737     (S)  DUNCAN  NOTICE OF RECONSIDERATION                  
 3/05/98      2756     (S)  RECON TAKEN UP - IN THIRD READING                  
 3/05/98      2756     (S)  RETURN TO SECOND FOR AM 1  UNAN                    
                            CONSENT                                            
 3/05/98      2756     (S)  AM NO  1     OFFERED BY DONLEY                     
 3/05/98      2756     (S)  AM NO  1     ADOPTED Y11 N9                        
 3/05/98      2757     (S)  AUTOMATICALLY IN THIRD READING                     
 3/05/98      2757     (S)  PASSED ON RECONSIDERATION Y15 N5                   
 3/05/98      2757     (S)  EFFECTIVE DATE(S) SAME AS PASSAGE                  
 3/05/98      2759     (S)  TRANSMITTED TO (H)                                 
 3/06/98      2533     (H)  READ THE FIRST TIME - REFERRAL(S)                  
 3/06/98      2533     (H)  STATE AFFAIRS                                      
 3/19/98               (H)  STA AT  8:00 AM CAPITOL 102                        
 3/19/98               (H)  MINUTE(STA)                                        
 3/21/98               (H)  STA AT 10:00 AM CAPITOL 102                        
                                                                               
BILL: HB 462                                                                   
SHORT TITLE: USE OF STATE MONEY FOR IMAGES/MESSAGES                            
SPONSOR(S): FINANCE                                                            
                                                                               
Jrn-Date    Jrn-Page           Action                                          
 2/25/98      2429     (H)  READ THE FIRST TIME - REFERRAL(S)                  
 2/25/98      2429     (H)  STATE AFFAIRS, FINANCE                             
 3/12/98               (H)  STA AT  8:00 AM CAPITOL 102                        
 3/12/98               (H)  MINUTE(STA)                                        
 3/21/98               (H)  STA AT 10:00 AM CAPITOL 102                        
                                                                               
BILL: HB 466                                                                   
SHORT TITLE: CAMPAIGN MISCONDUCT: FALSE INFORMATION                            
SPONSOR(S): STATE AFFAIRS                                                      
                                                                               
Jrn-Date    Jrn-Page           Action                                          
 3/06/98      2542     (H)  READ THE FIRST TIME - REFERRAL(S)                  
 3/06/98      2542     (H)  STATE AFFAIRS, JUDICIARY                           
 3/19/98               (H)  STA AT  8:00 AM CAPITOL 102                        
 3/19/98               (H)  MINUTE(STA)                                        
 3/21/98               (H)  STA AT 10:00 AM CAPITOL 102                        
                                                                               
WITNESS REGISTER                                                               
                                                                               
BILL STOLTZE, Legislative Administrative Assistant                             
  to Senator Rick Halford                                                      
Alaska State Legislature                                                       
Capitol Building, Room 121                                                     
Juneau, Alaska 99801                                                           
Telephone:  (907) 465-4958                                                     
POSITION STATEMENT: Provided information on SB 307.                            
                                                                               
REPRESENTATIVE GENE THERRIAULT                                                 
Alaska State Legislature                                                       
Capitol Building, Room 511                                                     
Juneau, Alaska  99801                                                          
Telephone:  (907) 465-4797                                                     
POSITION STATEMENT:  Sponsor of HB 462.                                        
                                                                               
NANCI JONES, Director                                                          
Permanent Fund Dividend Division                                               
Department of Revenue                                                          
P.O. Box 110460                                                                
Juneau, Alaska 99811-0460                                                      
Telephone:  (907) 465-2323                                                     
POSITION STATEMENT:  Provided testimony on HB 462.                             
                                                                               
PAT CARTER, Legislative Assistant                                              
  to Representative Mark Hodgins                                               
Alaska State Legislature                                                       
Capitol Building, Room 110                                                     
Juneau, Alaska 99801                                                           
Telephone:  (907) 465-2283                                                     
POSITION STATEMENT: Presented sponsor statement for HB 466.                    
                                                                               
ACTION NARRATIVE                                                               
                                                                               
TAPE 98-40, SIDE A                                                             
Number 0001                                                                    
                                                                               
CHAIR JEANNETTE JAMES called the House State Affairs Standing                  
Committee meeting to order at 10:07 a.m.  Members present at the               
call to order were Representatives James, Berkowitz, Dyson, and                
Elton.  Representative Ivan arrived at 10:11 a.m.                              
                                                                               
SB 307 am - U.S. SENATE VACANCIES                                              
                                                                               
Number 0009                                                                    
                                                                               
CHAIR JAMES announced the first order of business was SB 307 am,               
"An Act relating to conditions for filling vacancies in the office             
of United States senator; and providing for an effective date."                
She noted she had before her a committee substitute that was                   
identical to the original bill.                                                
                                                                               
Number 0020                                                                    
                                                                               
REPRESENTATIVE FRED DYSON made a motion to adopt proposed committee            
substitute, 0-LS1574\F, Glover, 3/20/98 as the working draft.                  
There being no objection, that version was before the committee.               
                                                                               
Number 0026                                                                    
                                                                               
BILL STOLTZE, Legislative Administrative Assistant to Senator Rick             
Halford, Alaska State Legislature, explained that the version of SB
307 just adopted by the committee does not contain an amendment                
adopted on the Senate floor that required confirmation by the                  
legislature.   He indicated that he heard Assistant Attorney                   
General Jim Baldwin's testimony given at the previous meeting and              
understood the committee's concerns.  He stated he would have                  
spoken in favor of Representative Berkowitz's amendment on Senator             
Halford's behalf at that same meeting, but did not have the                    
opportunity to do so.                                                          
                                                                               
CHAIR JAMES maintained that there is a good rationale for                      
Representative Berkowitz's amendment but her concern is its cost.              
She asked Mr. Stoltze if Senator Halford would be happy with the               
adoption of that amendment.                                                    
                                                                               
Number 0047                                                                    
                                                                               
MR. STOLTZE said he does not expect the provision of the amendment             
will need to be implemented, and hopes it will not, but Senator                
Halford feels the cost will probably be a one-time expenditure.                
Mr. Stoltze stated, "We've seen the value of a U.S. Senate seat.               
I guess it's a pretty good pay-off if you do it right the first                
time."                                                                         
                                                                               
CHAIR JAMES stated the committee would have to vote to rescind its             
action on failing to approve Amendment 1.                                      
                                                                               
Number 0066                                                                    
                                                                               
REPRESENTATIVE ETHAN BERKOWITZ made a motion to rescind the                    
committee's previous failure to adopt Amendment 1.  There being no             
objection, it was so ordered.                                                  
                                                                               
REPRESENTATIVE DYSON asked for an explanation of that action.                  
                                                                               
CHAIR JAMES explained Amendment 1 was proposed by Representative               
Berkowitz.  That amendment requires that a vacant U.S. Senate seat             
be filled by a special election, rather than by an appointment by              
the Governor.                                                                  
                                                                               
REPRESENTATIVE DYSON asked if committee members had a copy of the              
amendment.                                                                     
                                                                               
CHAIR JAMES said a copy should be in each committee members'                   
packet.                                                                        
                                                                               
Number 0106                                                                    
                                                                               
CHAIR JAMES announced Representative Ivan had arrived.  She                    
informed him that the committee had just rescinded its action                  
failing to adopt Amendment 1.                                                  
                                                                               
REPRESENTATIVE BERKOWITZ indicated the amendment essentially                   
requires a special election to be held to fill a U.S. Senate seat              
under all circumstances, instead of requiring a gubernatorial                  
appointment.                                                                   
                                                                               
Number 0133                                                                    
                                                                               
CHAIR JAMES noted Representative Ivan wanted to hear from Mr.                  
Stoltze on this issue.                                                         
                                                                               
MR. STOLTZE confirmed that Senator Halford does support the                    
amendment that was proposed by Representative Berkowitz because it             
moves the legislature in the same direction as it is going with the            
constitutional problems of legislative confirmation.                           
                                                                               
CHAIR JAMES stated the motion to adopt Amendment 1 was before the              
committee.                                                                     
                                                                               
REPRESENTATIVE DYSON maintained the election of public officers is             
inordinately precious in our process, and although he appreciates              
the concerns expressed about the cost, he believes a participatory             
democracy is so precious that the legislature should bite the                  
bullet and spend the money.                                                    
                                                                               
Number 0165                                                                    
                                                                               
CHAIR JAMES asked if there are any objections to the amendment.                
There being no objection, Amendment 1 was adopted.                             
                                                                               
Number 0170                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ made a motion to move HCSSB 307(STA) out              
of committee with individual recommendations and the attached                  
fiscal notes.  There being no objection, HCSSB 307(STA) moved out              
of the House State Affairs Standing Committee.                                 
                                                                               
BARBARA COTTING, Legislative Assistant to Chair James, asked if she            
would have to get another fiscal note on the bill.                             
                                                                               
CHAIR JAMES responded there may not be a fiscal note because no                
special election is scheduled.                                                 
                                                                               
HB 462 - USE OF STATE MONEY FOR IMAGES/MESSAGES                                
                                                                               
Number 0190                                                                    
                                                                               
CHAIR JAMES announced the next order of business was HB 462, "An               
Act relating to the contents of certain state documents," sponsored            
by Representative Therriault.  She said she would entertain a                  
motion to adopt the proposed committee substitute.                             
                                                                               
Number 0208                                                                    
                                                                               
REPRESENTATIVE IVAN IVAN made a motion to adopt the proposed                   
committee substitute for HB 462, Version 0-LS1527\H, Bannister,                
3/20/98, for consideration.  There being no objection, it was so               
adopted.                                                                       
                                                                               
CHAIR JAMES called on Representative Gene Therriault, sponsor of               
the bill to testify.                                                           
                                                                               
Number 0217                                                                    
                                                                               
REPRESENTATIVE GENE THERRIAULT, sponsor, Alaska State Legislature,             
stated the changes primarily dropped the restriction on placing a              
message and photo to cover only those who hold an elected state                
office.  Agency personnel would be able to put information on the              
longevity bonus check stub, for example.  Information on the                   
dividend application about the program would be appropriate, if                
signed by the commissioner or director of the program.  Section                
1(b) reads, "A state agency may not place a message on or with an              
application form, a warrant, or a direct deposit notice provided by            
the agency unless the message is (1) from a state agency employee              
who is not an elected state official; and (2) required by law,                 
necessary for the operation of the document, related to seasonal               
health issues including flu shot reminders, or limited to stating              
the requirements or deadlines of a program or activity of a state              
agency."  The wording was changed so that clearly on the longevity             
bonus check stub there could be information about the deadline for             
the permanent fund dividend, for example.  He did not want to                  
preclude that from happening.  The definitions in the rest of the              
bill remain the same.                                                          
                                                                               
Number 0251                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ stated there is no effective date for the             
bill.  He wondered whether there is anything in the "hopper" that              
would violate the bill.                                                        
                                                                               
Number 0257                                                                    
                                                                               
REPRESENTATIVE THERRIAULT stated certainly the next permanent fund             
dividend applications are far enough away that they would not be at            
the print shop now.  There might be a problem with the longevity               
bonus check stubs, however.  An immediate effective date isn't                 
necessary, if it would cause some problems with the things in the              
works already.                                                                 
                                                                               
Number 0265                                                                    
                                                                               
CHAIR JAMES stated anything started before an effective date would             
be precluded, unless there was time to change it.  If something had            
already gone to print before the effective date, it wouldn't be                
affected.                                                                      
                                                                               
Number 0276                                                                    
                                                                               
REPRESENTATIVE THERRIAULT stated it is up to the committee to                  
decide if a specific effective date is necessary.  It might be up              
to what the Administration says in terms of what it has in the                 
"hopper," and what type of time line would be needed in order to               
change any kind of document in the works.                                      
                                                                               
Number 0281                                                                    
                                                                               
CHAIR JAMES stated no one from the Administration is here, except              
for Nanci Jones from the Permanent Fund Dividend Division.                     
                                                                               
REPRESENTATIVE THERRIAULT stated Pat Pourchot from the Office of               
the Governor spoke to him about the bill and expressed that the                
Administration thought it might be an encroachment on their basic              
powers.  It was a pleasant conversation, but there was a difference            
in points of view.  "Certainly, the legislative branch, the                    
Administration has money budgeted to get their message out.  But,              
we don't do that on regular, programmatic documents.  And I think              
the -- part of the problem is that you start politicizing those                
documents and those programs.  And there are other means to get                
your message out and I really don't think that we should allow that            
kind of information to be placed on these documents."                          
                                                                               
Number 0302                                                                    
                                                                               
REPRESENTATIVE KIM ELTON stated, in reference to the timing, the               
bill speaks more to when a document is printed rather than when it             
would be distributed.  It seems, therefore, that there would not be            
a problem with the effective date.  Documents prepared up until the            
time of the effective date would not be affected.                              
                                                                               
CHAIR JAMES stated that would be her read too.  She called on Nanci            
Jones from the Permanent Fund Dividend Division, Department of                 
Revenue, to testify.                                                           
                                                                               
Number 0316                                                                    
                                                                               
NANCI JONES, Director, Permanent Fund Dividend Division, Department            
of Revenue, testified in reference to the printing of the longevity            
bonuses, retirement and benefit checks, permanent fund dividend                
checks, and payroll checks stating they all try to buy warrant                 
stocks together.  Each has something different printed on the top              
of the warrant.  "There might be a place where we would have to                
destroy whatever we had in order to buy new stock."  She is not                
sure about the intricacies of the longevity bonus mentioned                    
earlier.  The booklet does not go to print until late fall.                    
                                                                               
CHAIR JAMES entertained a motion to move the bill out of the                   
committee.                                                                     
                                                                               
Number 0332                                                                    
                                                                               
REPRESENTATIVE IVAN made a motion to move the proposed committee               
substitute for HB 462, Version 0-LS1527\H, Bannister, 3/20/98, from            
the committee with individual recommendations and the attached                 
fiscal note(s).  There being no objection, CSHB 462(STA) was so                
moved from the House State Affairs Standing Committee.                         
                                                                               
HB 466 - CAMPAIGN MISCONDUCT: FALSE INFORMATION                                
                                                                               
Number 0345                                                                    
                                                                               
CHAIR JAMES announced the next order of business would be HB 466,              
"An Act relating to violations of state election laws," sponsored              
by Representative Hodgins.                                                     
                                                                               
PAT CARTER, Legislative Assistant to Representative Hodgins, Alaska            
State Legislature, stated HB 466 is an attempt to clean up some of             
the campaign tactics that have been more prevalent in past years.              
The practice of casting unproven dispersions in a desperate attempt            
to sway public opinion in the last days of an election has become              
pervasive in recent elections and needs to be stopped.  HB 466                 
raises the penalty from a class A misdemeanor to a class C felony              
for knowingly distributing false information regarding the                     
candidate.  "We've attached some leeway on that so that if a person            
was so -- the person has to knowingly disseminate that                         
information."  He said for the purposes of this bill, disseminate              
means to convey to another person by any means.  They have to                  
disseminate that information with regard to it relating to a                   
candidate for election and such information will provoke a                     
reasonable person under the circumstances to a breach of the peace             
or to construe as damaging to the candidate's reputation for                   
honesty, integrity, or qualification to serve if elected. Only a               
defeated candidate may contest the nomination or election of a                 
person for violation of this section.                                          
                                                                               
Number 0376                                                                    
                                                                               
CHAIR JAMES stated if someone knowingly distributed false                      
information and the person was elected anyway, they cannot be                  
charged.                                                                       
                                                                               
MR. CARTER said that's correct.  They would still be able to pursue            
civil damages.  He said the way the bill reads is only a defeated              
candidate may contest the nomination or election of a person for a             
violation of this section.                                                     
                                                                               
CHAIR JAMES reiterated if you were a defeated candidate and there              
was someone on the other side, not necessarily the candidate, but              
someone else who was supporting that candidate, then they could                
contest the election based on this challenge.  She asked Mr. Carter            
if that is what he meant.                                                      
                                                                               
MR. CARTER said, "I believe so."                                               
                                                                               
Number 0401                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ stated the winning candidate obviously                
will not contest the election, but there might be a third party.               
He asked if the bill would want to preclude a third party from                 
contesting the election.                                                       
                                                                               
MR. CARTER replied the bill states that only a defeated candidate              
may contest the election, not necessarily whether they were damaged            
or not, but that a third party may contest the election.  Mr.                  
Carter referred to Section 2, (1), subsection (b) and read the                 
following:  "(b) Violation of this section is a corrupt practice.              
However, notwithstanding AS 15.20.540, only a defeated candidate               
may contest the nomination or election of a person for violation of            
this section."  He said only the defeated candidate may contest the            
actual outcome of an election; a third party could not.                        
                                                                               
Number 0420                                                                    
                                                                               
REPRESENTATIVE DYSON asked what the burden of proof is like to                 
establish the knowing distribution of false information.  "Is it a             
difficult one."                                                                
                                                                               
REPRESENTATIVE BERKOWITZ replied if it is a criminal case, the                 
burden of proof would lie on the state to prove beyond a reasonable            
doubt that this person knowingly committed a crime.                            
                                                                               
REPRESENTATIVE DYSON asked how difficult is it to establish                    
(indisc.) practice.                                                            
                                                                               
MR. CARTER replied a person would have to have made statements                 
where they had a person come in and testify that this person had               
actually told him that he was going to fabricate this information.             
                                                                               
REPRESENTATIVE BERKOWITZ said "knowingly" is one of the highest                
standards, and you can infer intent through circumstances.  You                
might not need for a person to say, "I'm going to falsify this,"               
but you can observe through the method that he put the information             
out or any of the circumstances around it that it was false.                   
                                                                               
Number 0442                                                                    
                                                                               
CHAIR JAMES interjected and said she wanted to explain what she                
thinks the practicality of "knowingly" is.  The first measure would            
be, is it false.  If it happens to be something that is not false,             
even though it's damaging, it doesn't apply.  Secondly, when it's              
false, did the person who made this statement know that it was                 
false.  Chair James expressed the evidence of that would be if the             
person didn't know, where did the person get the information and               
then that person would have to provide proof that they had                     
information that they believed not to be false.                                
                                                                               
Number 0452                                                                    
                                                                               
MR. CARTER stated if a person made a false statement about a                   
candidate, whether through an advertisement on the radio, or in a              
newspaper publication, or whatever, and that candidate proved that             
it was a false statement, and if that person continued to run the              
false statement, then under the purposes of this legislation, each             
day it continued to run would constitute a separate violation.  You            
would also have a reasonable case if a person declared publicly                
that they will fabricate information about a candidate.                        
                                                                               
CHAIR JAMES asked what if this happened in the last few days of an             
election and that person doesn't have time to prove that it's their            
fault.                                                                         
                                                                               
MR. CARTER replied that is always going to be the problem.  But                
what the legislature is up against is the restriction on freedom of            
speech and the courts have been pretty conservative with regard to             
how to restrict that.                                                          
                                                                               
Number 0475                                                                    
                                                                               
CHAIR JAMES then asked if the candidate gets elected anyway,                   
regardless of this, could they do anything about it and yet maybe              
they would only have a civil case against them for damaging their              
character.                                                                     
                                                                               
MR. CARTER answered in the affirmative.                                        
                                                                               
REPRESENTATIVE DYSON remarked that truth is an ultimate defense                
against defamation of character.  To him, another defense would be             
ignorance and proving the lack of ignorance must be an interesting             
thing to establish in court.  He stated he is very intrigued about             
that.  He also asked what the range of penalties are in a class C              
felony.                                                                        
                                                                               
MR. CARTER referred to Section 2, subsection (a) stating there is              
language which addresses knowing the information is false or with              
reckless disregard for whether the information is false.                       
                                                                               
REPRESENTATIVE DYSON reiterated and asked Mr. Carter what the range            
of penalties are in a class C felony.                                          
                                                                               
MR. CARTER responded a typical class C felony would be similar to              
someone writing bad checks or a vehicle theft.                                 
                                                                               
REPRESENTATIVE DYSON then asked what the penalties would be.                   
                                                                               
REPRESENTATIVE BERKOWITZ interjected and said the penalties would              
be up to five years in jail and he believes $10,000 in fines.                  
                                                                               
REPRESENTATIVE DYSON asked if other political jurisdictions have               
passed similar legislation and what has been the history.                      
                                                                               
MR. CARTER replied he has not had the chance to get the information            
from the Legislative Legal and Research Division (legal division)              
whether or not other states have passed this type of legislation.              
He indicated the legal division is currently working on it.  The               
problem, to date, given that this is a class A misdemeanor, the                
courts have all but ignored this type of violation.  People have               
had their reputations impugned and their integrity, as well as                 
long-term damage to their family standing in the community.  He                
feels the public has clearly shown that they are tired of this type            
of negative campaigning.  The fact that someone can get away with              
damaging one's character with no recourse, is the purpose of this              
legislation.                                                                   
                                                                               
REPRESENTATIVE DYSON asked if the sponsor discussed this with the              
Administration and the Office of the Attorney General.                         
                                                                               
Number 0516                                                                    
                                                                               
MR. CARTER replied the attorney general's office is not weighed in.            
They have not formed an opinion on this legislation.                           
                                                                               
REPRESENTATIVE DYSON again asked if the sponsor has talked to the              
Administration regarding this legislation.                                     
                                                                               
MR. CARTER answered no.                                                        
                                                                               
REPRESENTATIVE KIM ELTON asked, "I'm curious, Pat, as to whether               
this law in its current form were -- it's a simple misdemeanor --              
has ever been applied?"                                                        
                                                                               
MR. CARTER replied, "Someone has actually -- and without mentioning            
names and furthering the spreading of rumor..."                                
                                                                               
REPRESENTATIVE ELTON interjected and said, "For public record, have            
the charges been brought?"                                                     
                                                                               
MR. CARTER said he did not know if charges were actually brought               
and then dropped, but he knows the likelihood of the court taking              
it up weighed in as to whether or not they were going to pursue it.            
                                                                               
Number 0534                                                                    
                                                                               
REPRESENTATIVE ELTON indicated he is concerned with the issue of               
freedom of speech.  To him it seems they are not just holding out              
the thread of serious consequences if someone knowingly distributes            
false information.  They are also creating a situation if, in the              
last days of a campaign, someone says something "nasty" about a                
candidate, that candidate can go to the radio station and ask for              
that advertisement to be removed because it is untruthful, and the             
radio station could incur a penalty of up to five years in jail and            
a $10,000 fine.  He noted that whether the statement was true or               
not, or whether it is misleading which is even more difficult to               
prove, what that candidate in this situation has done is restrict              
speech, specifically political speech, which is very important.                
                                                                               
MR. CARTER remarked he realizes this legislation is treading near              
the edge of stepping on the freedom of speech, but he doesn't                  
believe they have crossed that edge.  If you get into a debate as              
to whether or not a person has impugned a candidate's reputation               
with a false statement, certainly it's hard to disprove it.  It                
would be a judgment call on whether it would be the radio station              
or a newspaper or whatever as to whether or not that information is            
false.  But the person would have to bear the consequences as a                
result of the election.                                                        
                                                                               
Number 0557                                                                    
                                                                               
CHAIR JAMES stated it appears to her if someone purchased some                 
advertisement and it was false, she does not feel that the radio or            
television station could be held liable, unless someone brought in             
proof and they felt it was journalistically proper to say they                 
would not run the advertisement anymore.  She indicated she would              
not want to set up a situation where an innocent bystander to the              
issue would be put in jeopardy.                                                
                                                                               
MR. CARTER explained the way the legislation is currently drafted              
is that a radio station or newspaper would not be held liable                  
unless a journalist that was under their employee was the                      
fabricator of the information himself.  Whether or not they would              
pull the information would be their own decision.                              
                                                                               
REPRESENTATIVE ELTON informed the committee there are two different            
kinds of speech that are involved in a radio station:  journalistic            
speech and paid speech.  An advertisement is paid speech.  He said             
the way he interprets the bill is that a person commits a crime if             
they disseminate false or misleading information.  It's not just               
the person who originates the information, it is also the person               
disseminating the information.  If he went into a radio station and            
asserts as a victim that the information is untrue, whether the                
information is true or not, it puts the radio station in a very                
difficult position.  The radio station has to decide who to                    
believe, especially if it happens a week before an election.  The              
candidate can inform the radio station it will take them four or               
five days to prove the information is untrue, but everyday they                
continue running the advertisement, is another day of liability                
they accrue if they continue to run it.                                        
                                                                               
CHAIR JAMES emphasized the legislature needs to do something to                
stop this kind of activity because it is proliferating.  She said              
there needs to be a deterrent for this type of misconduct.  It                 
appears to her, after reading this legislation, it will probably               
never get to the application.  Chair James' concern is that she                
does not want to have an application that could be misused or get              
to the wrong party.                                                            
                                                                               
Number 0599                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ noted that a radio or television station              
could be guilty the way the legislation is currently written.                  
                                                                               
MR. CARTER emphasized that a person must knowingly distribute that             
information.  If a candidate advised the radio or television                   
station that the information was false, that would not constitute              
them knowingly continuing to do it.                                            
                                                                               
REPRESENTATIVE BERKOWITZ asked if that would put the radio or                  
television station on notice.                                                  
                                                                               
MR. CARTER answered in the affirmative.                                        
                                                                               
REPRESENTATIVE BERKOWITZ stated if at that point, a candidate did              
not check it out, is there a recklessness to what they are doing.              
                                                                               
MR. CARTER said he agreed.                                                     
                                                                               
Number 0608                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ referenced the word "misleading" stating              
there is no parallel structure with that word throughout Section 2,            
subsection (a) which reads "...if the person disseminates false or             
misleading information, knowing that the information is false or               
with reckless disregard for whether the information is false..."               
He noted there is no mention of the word "misleading" in the latter            
phrases of this section which is an ambiguity.  Representative                 
Berkowitz advised that the purpose of this legislation is to try to            
limit attack advertisements and get campaigns back to discussions              
of issues which need to be based on fact and not innuendo.                     
                                                                               
REPRESENTATIVE BERKOWITZ wanted to clarify the courts have nothing             
to do with bringing the charge.  Charges are brought by prosecuting            
agencies by district attorneys.  He pointed out the courts are not             
imposing penalties because cases are not being brought forth.  He              
expressed there is a misunderstanding of the process and referred              
to the sponsor statement, "the courts have all but ignored any                 
attempt to curb this practice."  He said it is not up to the courts            
to enforce the law.  "They execute the law when it comes to them."             
Representative Berkowitz stated, "This is a 1996 law, as far as I              
understand.  I'd like to see it get a chance to grow some legs and             
see if it works as a misdemeanor because it is a serious penalty.              
I'm also concerned that only a defeated -- well, I guess it's post             
campaign..."                                                                   
                                                                               
Number 0630                                                                    
                                                                               
CHAIR JAMES stated she believes it means only the damaged person               
and they have to be damaged first.                                             
                                                                               
REPRESENTATIVE BERKOWITZ commented he feels there is an inequity               
with that because "what we're trying to do is you want to have more            
parallelism."  It's not the winning or losing at some point that is            
important, it's how you play the game.  "And we're saying if you               
win, then it doesn't matter how the other side plays the game.  And            
if we're trying to clean up the process, I think the folks who play            
the game badly and still lose should still suffer consequences for             
that."                                                                         
                                                                               
Number 0635                                                                    
                                                                               
CHAIR JAMES gave an example, if a particular candidate was having              
an affair with someone else and it was false, there is also the                
someone else who was misused in this case.  She asked if that                  
person were not a candidate, they could not make these charges.                
                                                                               
MR. CARTER replied that this was a suggestion put in by the legal              
division.  He said he could get a written description of why they              
felt it was necessary.                                                         
                                                                               
REPRESENTATIVE ELTON commented the way he reads the legislation is             
the restriction on the defeated candidate is only on whether or not            
you contest the election, not whether or not you committed a class             
C felony.                                                                      
                                                                               
MR. CARTER indicated the violation of this section is a corrupt                
practice.  The bill would still constitute corrupt practice, but               
the election could not be contested.                                           
                                                                               
Number 0651                                                                    
                                                                               
REPRESENTATIVE DYSON referred to page 2, line 23 and asked why                 
"breach of the peace" is included in the legislation.                          
                                                                               
MR. CARTER informed the committee that during the last election                
there was an incident where a candidate distributed false                      
information about a person who was not a candidate.  The person who            
was not the candidate went to the candidate's house and as a                   
result, a fist fight ensued.  That is what he feels would                      
constitute a breach of the peace.                                              
                                                                               
REPRESENTATIVE DYSON referred to Section 2, subsection (2) of HB
466 and asked "You're guilty of campaign misconduct if what you do             
would be construed as provoking a reasonable person to punch                   
somebody's lights out?"                                                        
                                                                               
MR. CARTER answered in the affirmative.  He said it would also have            
to include a candidate who is running for election.  In non-                   
election years, it would not be applicable.                                    
                                                                               
REPRESENTATIVE DYSON asked if there is language in the legislation             
that requires the state to prosecute the action.                               
                                                                               
CHAIR JAMES expounded on Representative Dyson's point asking if the            
candidate whom false statements were made against loses the                    
election, can they contest the election on that point as well as               
recounting the ballots.                                                        
                                                                               
MR. CARTER answered "they could."                                              
                                                                               
Number 0690                                                                    
                                                                               
CHAIR JAMES said if a candidate contested an election because false            
statements were made against them, she would assume the next step              
would be to determine whether the offense was done and that there              
was a direct relationship to the election.  She asked, "If that                
candidate challenges the election, who picks up the other ball and             
runs with it to go to the prosecuting attorney and files a case?"              
                                                                               
MR. CARTER replied the state would pursue that as a criminal action            
and they would have to prove beyond a reasonable doubt that the                
person who knowingly distributed that false information did do that            
action.                                                                        
                                                                               
CHAIR JAMES stated in this situation the state would be the                    
plaintiff.                                                                     
                                                                               
MR. CARTER said that was correct.                                              
                                                                               
CHAIR JAMES asked, "As a result of that person challenging the                 
election, what if the person won anyway, then what happens?"                   
                                                                               
MR. CARTER responded it's a civil case.                                        
                                                                               
CHAIR JAMES asked if a candidate won an election, but still wanted             
to file charges against the person making false statements about               
them, would they have to file a civil case and pay their own                   
attorney's fees.                                                               
                                                                               
MR. CARTER answered in the affirmative.                                        
                                                                               
Number 0706                                                                    
                                                                               
CHAIR JAMES inquired if a person were found guilty in a civil case             
which has a different level of proof than a criminal case, would               
the same penalty apply or would there be a different penalty in a              
civil case.                                                                    
                                                                               
MR. CARTER responded the way he understands the legislation is that            
the penalties would be substantially different.  One would be                  
monetary damages and the other would be criminal damages.                      
                                                                               
CHAIR JAMES stated a candidate already has the opportunity to go to            
a civil case on this.                                                          
                                                                               
MR. CARTER responded that is correct.                                          
                                                                               
CHAIR JAMES inferred, "And probably what happens is that it's                  
expensive and they don't do it.  And so if we mandate it so that               
the state has to do it in these cases, then it will get done and it            
won't be at the expense of the person who was ..."                             
                                                                               
REPRESENTATIVE ELTON interjected and stated if a person is                     
convicted of a felony, they are not allowed to vote.                           
                                                                               
REPRESENTATIVE ELTON asked if a person is not allowed to vote, are             
they allowed to serve.                                                         
                                                                               
MR. CARTER responded no.                                                       
                                                                               
REPRESENTATIVE ELTON commented a person would not have to be an                
undefeated candidate to get that person out of office.  "Another               
person could ...                                                               
                                                                               
TAPE 98-40, SIDE B                                                             
Number 0001                                                                    
                                                                               
REPRESENTATIVE ELTON continued, "...false or misleading                        
information."  If that person were convicted they would be out of              
office if, in fact, it had been the other candidate who had been               
responsible for distributing the information.                                  
                                                                               
MR. CARTER advised Representative Elton a campaign manager could               
not seek criminal charges.  They could propose the case to the                 
state and have the state file the criminal charges.                            
                                                                               
REPRESENTATIVE ELTON stated he thought the defeated candidate is               
the only one who can contest the election.                                     
                                                                               
MR. CARTER stated that is correct.                                             
                                                                               
REPRESENTATIVE ELTON asked if the legislation allows only the                  
defeated candidate to seek the felony charges.                                 
                                                                               
MR. CARTER responded in the negative and explained anyone could ask            
the state to pursue those charges, and then the state would pursue             
the charges, not a campaign manager or an innocent bystander.                  
                                                                               
REPRESENTATIVE ELTON asked if a person wanted to file charges                  
against someone who knowingly distributed false information about              
a person, the state could then pursue that case.  And if the person            
who distributed that information was in fact the other candidate,              
that person would be out of office because, if they were convicted,            
they would be a felon.                                                         
                                                                               
MR. CARTER stated he believes that is correct, depending on the                
timing of it and how long it would take to go before the court.  In            
the meantime, the defeated candidate would be able to contest the              
election.  The way he understands the legislation is that any                  
person could bring information to the state and ask that this                  
person be prosecuted given the information that is presented to                
them.  At that point, the state would decide if there is a case or             
not.  An innocent bystander or campaign manager would not be the               
people that would actually bring the charges against this person.              
                                                                               
Number 0059                                                                    
                                                                               
CHAIR JAMES stated a number of legal questions need to be answered             
regarding this legislation and informed the committee they have                
some options.  Since HB 466 has a referral to the Judiciary                    
Committee, she feels the legal issues should be addressed there, as            
well as having representation from the legal division and attorney             
general's office.  The other option would be for the sponsor to try            
to work through some of the issues in this committee or put in a               
subcommittee and deal with it.  Chair James stated the committee               
could also decide to put a stop to this practice because it is in              
the best interest of the state and proceed to do some law changes.             
She asked the sponsor what he would prefer to do.                              
                                                                               
Number 0120                                                                    
                                                                               
MR. CARTER requested a tighter definition on the questions proposed            
by the committee.  He said the committee just debated issues                   
regarding this legislation and he is unclear what questions the                
committee wants answered.                                                      
                                                                               
CHAIR JAMES stated the questions are quite clear to her, for                   
example:  1) who gets to bring these charges; 2) how are the                   
charges brought about; 3) who all is involved; 4) who has the right            
to do this; and 5) how does it affect the radio and television                 
stations.  She stated the committee has some concerns that need to             
be addressed and answered by the sponsor, not the committee.  The              
bill could be brought up at the next meeting if that would give the            
sponsor enough time to investigate the concerns of the committee               
and it would also give the sponsor some time to contact the legal              
division.                                                                      
                                                                               
Number 0147                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ stated a couple of other issues need to be            
addressed as well.  Aside from the false and misleading issues not             
being parallel throughout, Section 2 relates solely to candidates,             
not initiatives, which is a retreat from the current Section 1.                
Section 1 covers election propositions or questions, so he feels               
they are retreating.  He said people can tell lies about                       
propositions or initiatives without any consequence, which he feels            
is a retreat.                                                                  
                                                                               
CHAIR JAMES told Representative Berkowitz he is right on point                 
asking, "Who are we trying to protect?  Are we trying to protect               
the candidate or are we trying to protect the public to be able to             
make a good decision?"  She stated she feels the public is being               
offended because they are given information that is not true and               
then are making a decision based on false information, therefore,              
they may not be making the decision they would be making if they               
had the truth.  "It seems to me the public is the one we're trying             
to protect here."  The candidate just happens to be in this                    
process.                                                                       
                                                                               
REPRESENTATIVE BERKOWITZ referred to Section 2 stating a candidate             
can complain only if their honestly, integrity, or qualifications              
are challenged, not because someone misrepresents their position on            
an issue.  He pointed out a candidate has no way of pursuing that              
under this bill.                                                               
                                                                               
Number 0249                                                                    
                                                                               
REPRESENTATIVE DYSON inquired what would happen if the losing                  
candidate contested an election based on false campaign                        
information.  He asked if that would fall under the Lt. Governor's             
purview.                                                                       
                                                                               
MR. CARTER said he believes it does.                                           
                                                                               
REPRESENTATIVE DYSON asked if that would also fall under the                   
Elections Commission.                                                          
                                                                               
MR. CARTER answered correct.                                                   
                                                                               
REPRESENTATIVE DYSON asked what the Election Commission process is.            
He stated he suspects it is all prescribed.                                    
                                                                               
MR. CARTER replied it is prescribed but he could not speak in                  
regard to the actual procedure behind it.                                      
                                                                               
Mr. 0272                                                                       
                                                                               
CHAIR JAMES asked Mr. Carter how he wants to proceed on this                   
legislation.                                                                   
                                                                               
MR. CARTER said he would be happy to investigate the issues brought            
forth by the committee as well as discuss them with the legal                  
division.  He indicated the original intent of the bill is to                  
protect a person on more of a personal level while they are                    
campaigning, and also to increase the penalty to a class C felony.             
                                                                               
Number 0295                                                                    
                                                                               
CHAIR JAMES suggested Mr. Carter contact the bill sponsor and ask              
if he wants HB 466 assigned to a subcommittee.                                 
                                                                               
ADJOURNMENT                                                                    
                                                                               
Number 0320                                                                    
                                                                               
CHAIR JAMES adjourned the House State Affairs Standing Committee               
meeting at 11:10 a.m.                                                          

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