05/04/2021 03:00 PM House STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| HB163 | |
| SB28 | |
| HJR7 | |
| HB73 | |
| HB124 | |
| HB142 | |
| HB5 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 28 | TELECONFERENCED | |
| += | HJR 7 | TELECONFERENCED | |
| += | HB 73 | TELECONFERENCED | |
| *+ | HB 124 | TELECONFERENCED | |
| += | HB 142 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 163 | TELECONFERENCED | |
| += | HB 5 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE STATE AFFAIRS STANDING COMMITTEE
May 4, 2021
3:06 p.m.
MEMBERS PRESENT
Representative Jonathan Kreiss-Tomkins, Chair
Representative Matt Claman, Vice Chair
Representative Geran Tarr
Representative Andi Story
Representative Sarah Vance
Representative James Kaufman
Representative David Eastman
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 163
"An Act relating to vehicle title applications."
- MOVED HB 163 OUT OF COMMITTEE
CS FOR SENATE BILL NO. 28(STA)
"An Act establishing April 24 of each year as Vic Fischer and
Jack Coghill Constitution of the State of Alaska Day; and
providing for an effective date."
- MOVED HCS CSSB 28(STA) OUT OF COMMITTEE
HOUSE JOINT RESOLUTION NO. 7
Proposing amendments to the Constitution of the State of Alaska
relating to the Alaska permanent fund, appropriations from the
permanent fund, and the permanent fund dividend.
- HEARD & HELD
HOUSE BILL NO. 73
"An Act relating to use of income of the Alaska permanent fund;
relating to the amount of the permanent fund dividend; relating
to the duties of the commissioner of revenue; relating to an
advisory vote on the permanent fund; providing for an effective
date by repealing the effective date of sec. 8, ch. 16, SLA
2018; and providing for an effective date."
- HEARD & HELD
HOUSE BILL NO. 124
"An Act relating to filling a vacancy in the legislature by
appointment."
- HEARD & HELD
HOUSE BILL NO. 142
"An Act relating to eligibility for the permanent fund
dividend."
- HEARD & HELD
SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 5
"An Act relating to sexual abuse of a minor; relating to sexual
assault; relating to the code of military justice; relating to
consent; relating to the testing of sexual assault examination
kits; and providing for an effective date."
- MOVED CSSSHB 5(STA) OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: HB 163
SHORT TITLE: FORM OF SIGNATURE ON VEHICLE TITLE
SPONSOR(s): REPRESENTATIVE(s) SCHRAGE
04/05/21 (H) READ THE FIRST TIME - REFERRALS
04/05/21 (H) CRA, STA
04/13/21 (H) CRA AT 8:00 AM BARNES 124
04/13/21 (H) Heard & Held
04/13/21 (H) MINUTE(CRA)
04/15/21 (H) CRA AT 8:00 AM BARNES 124
04/15/21 (H) Moved HB 163 Out of Committee
04/15/21 (H) MINUTE(CRA)
04/16/21 (H) CRA RPT 6DP
04/16/21 (H) DP: MCCABE, PRAX, MCCARTY, DRUMMOND,
SCHRAGE, HANNAN
04/27/21 (H) STA AT 3:00 PM GRUENBERG 120
04/27/21 (H) Heard & Held
04/27/21 (H) MINUTE(STA)
04/29/21 (H) STA AT 3:00 PM GRUENBERG 120
04/29/21 (H) Heard & Held
04/29/21 (H) MINUTE(STA)
05/04/21 (H) STA AT 3:00 PM GRUENBERG 120
BILL: SB 28
SHORT TITLE: EST. APRIL 24 ALASKA CONSTITUTION DAY
SPONSOR(s): SENATOR(s) BEGICH
01/22/21 (S) PREFILE RELEASED 1/8/21
01/22/21 (S) READ THE FIRST TIME - REFERRALS
01/22/21 (S) STA
03/25/21 (S) STA AT 3:30 PM BUTROVICH 205
03/25/21 (S) Heard & Held
03/25/21 (S) MINUTE(STA)
04/22/21 (S) STA AT 3:30 PM BUTROVICH 205
04/22/21 (S) Moved CSSB 28(STA) Out of Committee
04/22/21 (S) MINUTE(STA)
04/23/21 (S) STA RPT CS 2DP 1NR 1AM SAME TITLE
04/23/21 (S) NR: SHOWER
04/23/21 (S) DP: HOLLAND, KAWASAKI
04/23/21 (S) AM: COSTELLO
04/23/21 (S) TRANSMITTED TO (H)
04/23/21 (S) VERSION: CSSB 28(STA)
04/26/21 (H) READ THE FIRST TIME - REFERRALS
04/26/21 (H) STA
05/04/21 (H) STA AT 3:00 PM GRUENBERG 120
BILL: HJR 7
SHORT TITLE: CONST. AM: PERM FUND & PFDS
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
02/18/21 (H) READ THE FIRST TIME - REFERRALS
02/18/21 (H) STA, JUD, FIN
04/20/21 (H) STA AT 3:00 PM GRUENBERG 120
04/20/21 (H) Heard & Held
04/20/21 (H) MINUTE(STA)
05/04/21 (H) STA AT 3:00 PM GRUENBERG 120
BILL: HB 73
SHORT TITLE: PERM FUND; ADVISORY VOTE
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
02/18/21 (H) READ THE FIRST TIME - REFERRALS
02/18/21 (H) STA, JUD, FIN
04/20/21 (H) STA AT 3:00 PM GRUENBERG 120
04/20/21 (H) Heard & Held
04/20/21 (H) MINUTE(STA)
05/04/21 (H) STA AT 3:00 PM GRUENBERG 120
BILL: HB 124
SHORT TITLE: FILLING VACANCY IN LEGISLATURE
SPONSOR(s): CARPENTER
03/03/21 (H) READ THE FIRST TIME - REFERRALS
03/03/21 (H) STA, JUD
04/24/21 (H) STA AT 3:00 PM GRUENBERG 120
04/24/21 (H) -- MEETING CANCELED --
05/04/21 (H) STA AT 3:00 PM GRUENBERG 120
BILL: HB 142
SHORT TITLE: PFD ELIGIBILITY
SPONSOR(s): MCCARTY
03/20/21 (H) READ THE FIRST TIME - REFERRALS
03/20/21 (H) STA, JUD, FIN
04/09/21 (H) STA REFERRAL MOVED TO AFTER JUD
04/09/21 (H) BILL REPRINTED
04/21/21 (H) JUD AT 1:00 PM GRUENBERG 120
04/21/21 (H) Heard & Held
04/21/21 (H) MINUTE(JUD)
04/26/21 (H) JUD AT 1:00 PM GRUENBERG 120
04/26/21 (H) Moved CSHB 142(JUD) Out of Committee
04/26/21 (H) MINUTE(JUD)
04/28/21 (H) JUD RPT CS(JUD) NT 3DP 2NR 1AM
04/28/21 (H) DP: SNYDER, KREISS-TOMKINS, CLAMAN
04/28/21 (H) NR: EASTMAN, DRUMMOND
04/28/21 (H) AM: VANCE
04/29/21 (H) STA AT 3:00 PM GRUENBERG 120
04/29/21 (H) Heard & Held
04/29/21 (H) MINUTE(STA)
05/04/21 (H) STA AT 3:00 PM GRUENBERG 120
BILL: HB 5
SHORT TITLE: SEXUAL ASSAULT; DEF. OF "CONSENT"
SPONSOR(s): TARR
02/18/21 (H) PREFILE RELEASED 1/8/21
02/18/21 (H) READ THE FIRST TIME - REFERRALS
02/18/21 (H) STA, JUD
03/26/21 (H) SPONSOR SUBSTITUTE INTRODUCED
03/26/21 (H) READ THE FIRST TIME - REFERRALS
03/26/21 (H) STA, JUD
03/27/21 (H) STA AT 1:00 PM GRUENBERG 120
03/27/21 (H) Heard & Held
03/27/21 (H) MINUTE(STA)
04/13/21 (H) STA AT 3:00 PM GRUENBERG 120
04/13/21 (H) Heard & Held
04/13/21 (H) MINUTE(STA)
04/20/21 (H) STA AT 3:00 PM GRUENBERG 120
04/20/21 (H) Heard & Held
04/20/21 (H) MINUTE(STA)
04/27/21 (H) STA AT 3:00 PM GRUENBERG 120
04/27/21 (H) Heard & Held
04/27/21 (H) MINUTE(STA)
04/29/21 (H) STA AT 3:00 PM GRUENBERG 120
04/29/21 (H) Scheduled but Not Heard
05/04/21 (H) STA AT 3:00 PM GRUENBERG 120
WITNESS REGISTER
SENATOR TOM BEGICH
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: As the prime sponsor, introduced SB 28.
VICTOR FISHER
Anchorage, Alaska
POSITION STATEMENT: Provided invited testimony during the
hearing on SB 28.
BERT HOUGHTALING
Big Lake, Alaska
POSITION STATEMENT: Testified in opposition to HJR 7.
ADAM HYKES
Homer, Alaska
POSITION STATEMENT: Testified during the hearing on HB 73.
REPRESENTATIVE BEN CARPENTER
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: As the prime sponsor, introduced HB 124.
RICHARD BEST, Staff
Representative Ben Carpenter
Juneau, Alaska
POSITION STATEMENT: Provided a sectional analysis of HB 124 on
behalf of Representative Carpenter, prime sponsor.
MEGAN WALLACE, Director
Legislative Legal Services
Juneau, Alaska
POSITION STATEMENT: Answered questions during the hearing on HB
124.
REPRESENTATIVE KEN MCCARTY
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: As the prime sponsor, presented HB 142,.
BERT HOUGHTALING
Big Lake, Alaska
POSITION STATEMENT: Testified during the hearing on HB 142.
NOLAN HEATH
Eagle River, Alaska
POSITION STATEMENT: Testified during the hearing on HB 142.
BOBBI SCHERRER, Appeals Manager
Permanent Fund Dividend Division
Department of Revenue
Juneau, Alaska
POSITION STATEMENT: Answered questions during the hearing on HB
142.
EMILY NAUMAN, Deputy Director
Office of the Director
Legislative Legal Services
Legislative Affairs Agency
POSITION STATEMENT: Answered questions during the hearing on HB
142.
LATRICE WILLIAMS
Eagle River, Alaska
POSITION STATEMENT: Testified during the hearing on HB 142.
JAMES STINSON, Director
Office of Public Advocacy
Department of Administration
Anchorage, Alaska
POSITION STATEMENT: Answered questions during the hearing on HB
5.
CLAIRE RADFORD, Attorney
Legislative Legal Services
Legislative Affairs Agency
Juneau, Alaska
POSITION STATEMENT: Answered questions during the hearing on HB
5.
JOHN SKIDMORE, Deputy Attorney General
Office of the Attorney General
Department of Law
Anchorage, Alaska
POSITION STATEMENT: Answered questions during the hearing on HB
5.
ACTION NARRATIVE
3:06:06 PM
CHAIR JONATHAN KREISS-TOMKINS called the House State Affairs
Standing Committee meeting to order at 3:06 p.m.
Representatives Story, Claman, Vance, Kaufman, and Kreiss-
Tomkins were present at the call to order. Representatives
Eastman and Tarr arrived as the meeting was in progress.
HB 163-FORM OF SIGNATURE ON VEHICLE TITLE
3:06:59 PM
CHAIR KREISS-TOMKINS announced that the first order of business
would be HOUSE BILL NO. 163, "An Act relating to vehicle title
applications."
CHAIR KREISS-TOMKINS opened public testimony on HB 163. After
ascertaining that no one wished to testify, he closed public
testimony.
3:07:43 PM
REPRESENTATIVE CLAMAN moved to report HB 163 out of committee
with individual recommendations and the accompanying fiscal
notes. Without objection, HB 163 was reported out of the House
State Affairs Standing Committee.
SB 28-EST. APRIL 24 ALASKA CONSTITUTION DAY
3:08:09 PM
CHAIR KREISS-TOMKINS announced that the next order of business
would be CS for SENATE BILL NO. 28, "An Act establishing April
24 of each year as Vic Fischer and Jack Coghill Constitution of
the State of Alaska Day; and providing for an effective date."
3:08:30 PM
SENATOR TOM BEGICH, Alaska State Legislature, as prime sponsor,
presented CSSB 28(STA). He informed the committee that the
proposed legislation would establish "Alaska Constitution Day,"
further noting that the bill was composed of only two sections.
Section 1 denoted April 24 as a commemorated holiday and Section
2 established an effective date of July 1, 2021. He presented
the sponsor statement [included in the committee packet], which
read as follows [original punctuation provided]:
On April 24, 1956, the citizens of Alaska ratified the
Constitution of the State of Alaska, "guaranteeing
that the individual will always be in-charge," and
enshrining our State's values of individual freedom,
local control, and personal autonomy at the core of
our Statehood. The purpose of our Constitution was to,
"transmit to succeeding generations our heritage of
political, civil, and religious liberty within the
United of States."
Over the past 65 years, the laws and policies of our
state have remained relevant and true. Those 55
delegates, so long ago, provided a visionary template
for guided governance that has served this state well.
Now is the time to recognize the persistence of our
Constitution by establishing an annual reminder and
celebration of the continuity of our state's values.
Senate Bill 28 provides a bridge from the past to the
future by establishing the Vic Fischer and Jack
Coghill Constitution of the State of Alaska Day. If we
know where we have come from, we will better attend to
where we are going. As Alaska grapples with an
unprecedented pandemic and increasing fiscal
instability, let us all take a moment to remember the
actions and efforts that shaped the state we are today
and focus on the state we wish to become.
SENATOR BEGICH explained that Vic Fischer and Jack Coghill were
being honored because despite their different political
perspectives, they were able to work together on the shared goal
of bettering the state. He welcomed questions from the
committee.
3:12:03 PM
REPRESENTATIVE EASTMAN pointed out that the bill would recognize
2 of the 55 constitutional delegates. He asked whether the bill
sponsor would object to including "a recommendation to the
state" to honor all 55 delegates.
SENATOR BEGICH pointed out that the bill had prompted Senators
to acknowledge the other 53 delegates by name on the Senate
floor and in committee. He believed that the proposed
legislation would encourage further questions and discussion
about Alaska's constitutional delegates. He said he understood
the intent of Representative Eastman's question; however, the
statute would not lay out provisions for how to execute or
celebrate this holiday - it would simply name the commemorative
day. He encouraged the Representatives to recognize the other
53 delegates by name should the bill arrive on the House floor.
3:14:39 PM
REPRESENTATIVE EASTMAN questioned why Jack Coghill and Vic
Fisher were specifically named.
SENATOR BEGICH reiterated that both individuals came from very
different perspectives. Nonetheless, because of their shared
experienced with the Constitution of the State of Alaska, they
exemplified how two people with different ideologies could work
together.
3:15:39 PM
REPRESENTATIVE STORY asked whether Alaska Constitution Day would
be a commemorative or legal holiday and how it would affect
state employees.
SENATOR BEGICH explained that CSSB 28(STA) ensured that April 24
would be a commemorative holiday, as opposed to a legal holiday.
He believed that establishing a commemorative holiday was
critical due to the fiscal impact of legal holidays. He further
noted that commemorative holidays were identified under AS
44.12.
3:17:41 PM
REPRESENTATIVE EASTMAN moved to adopt Conceptual Amendment 1 to
CSSB 28(STA), such that "and all of Alaska's constitutional
delegates" would be inserted after "Vic Fischer" on page 1, line
7.
REPRESENTATIVE CLAMAN objected for the purpose of discussion.
3:18:20 PM
SENATOR BEGICH suggested adding a comma in between "Vic Fischer"
and "and all of Alaska's constitutional delegates"; thus reading
"Vic Fischer, and all of Alaska's constitutional delegates". He
believed that the conceptual amendment captured the spirit of
the bill's intent and encouraged the committee to consider it.
REPRESENTATIVE EASTMAN agreed on the insertion of the comma.
CHAIR KREISS-TOMKINS clarified that the amendment to Conceptual
Amendment 1, to insert the comma, had received no objection and
was therefore adopted.
3:19:06 PM
REPRESENTATIVE CLAMAN withdrew his objection to Conceptual
Amendment 1, [as amended]. There being no further objection,
Conceptual Amendment 1, as amended, was adopted. He recommended
allowing Legislative Legal Services to create the appropriate
punctuation.
CHAIR KREISS-TOMKINS echoed Representative Claman's comments
regarding Legislative Legal Services having the prerogative to
incorporate the necessary conforming changes into bill.
SENATOR BEGICH noted the significance of debating a conceptual
amendment and a comma while sitting in the committee room named
after Max Gruenberg.
CHAIR KREISS-TOMKINS concurred.
3:20:31 PM
CHAIR KREISS-TOMKINS announced the committee would hear invited
testimony.
3:20:49 PM
VICTOR "VIC" FISHER, [1956 Constitution of the State of Alaska
delegate], professed that CSSB 28(STA) was a good bill that
would serve an important purpose. He recalled speaking about
the constitution to many high school and college students
throughout his lifetime. He believed that the proposed
legislation would encourage people to understand their
constitutional rights. He reiterated his strong support for the
bill and commended the committee for promoting the idea.
3:23:07 PM
REPRESENTATIVE CLAMAN thanked Mr. Fischer for his continued
participation in the democratic process and his long commitment
to Alaska.
REPRESENTATIVE STORY thanked Mr. Fischer for his work years ago,
which still lived on today. She said it was an honor to hear
him testify before the committee.
REPRESENTATIVE TARR noted how special it was for legislation to
receive recognition from someone who helped frame Alaska's
constitution. She thanked Mr. Fischer for testifying.
SENATOR BEGICH shared that Mr. Fischer was one of his mentors.
He recalled working for him on campaign finance reform work in
1983. Personally, he said, this came "full circle."
3:24:54 PM
CHAIR KREISS-TOMKINS noted the importance of having one of
Alaska's founding fathers share his perspective. Additionally,
he acknowledged the extraordinary life Mr. Fischer had lived.
CHAIR KREISS-TOMKINS opened public testimony on CSSB 28(STA).
After ascertaining that no one wished to testify, he closed
public testimony.
REPRESENTATIVE EASTMAN noted that on April 24, the people of
Alaska voted to approve the constitution; therefore, he believed
that selecting April 24 as a commemorative holiday was an
appropriate choice in their honor - not to take away from the
hard work of the delegates.
3:27:19 PM
REPRESENTATIVE CLAMAN moved to report CSSB 28(STA), as amended,
out of committee with individual recommendations and the
accompanying fiscal notes. There being no objection, HCS CSSB
28(STA) was reported out of the House State Affairs Standing
Committee.
HJR 7-CONST. AM: PERM FUND & PFDS
3:27:59 PM
CHAIR KREISS-TOMKINS announced that the next order of business
would be HOUSE JOINT RESOLUTION NO. 7, Proposing amendments to
the Constitution of the State of Alaska relating to the Alaska
permanent fund, appropriations from the permanent fund, and the
permanent fund dividend.
CHAIR KREISS-TOMKINS opened public testimony on HJR 7.
3:29:10 PM
BERT HOUGHTALING, noted that aside from representing himself, he
represented 4,000 Alaskans. He stated his opposition to HJR 7,
as it would not protect the statutory PFD. He believed that the
resolution would make it easier for legislators to spend money
on the [operating] and capital budget while disregarding the
dividend. He claimed that every Alaskan who had filed for a PFD
would be against this proposal "if they were to actually
understand what is written in it." He urged the committee
members to oppose HJR 7 and continued by expressing his support
for SJR 1.
3:32:17 PM
REPRESENTATIVE TARR inquired about the 4,000 Alaskans that Mr.
Houghtaling represented.
MR. HOUGHTALING said he ran a "news organization page" with a
largely Alaskan following.
3:33:16 PM
REPRESENTATIVE CLAMAN sought to clarify whether Mr. Houghtaling
claimed to represent all Alaskans who received a PFD or just the
Alaskans who follow his publication.
MR. HOUGHTALING replied, "I personally represent 650,000
Alaskans that receive their dividend because most of them don't
even know this committee hearing is even happening right now."
He clarified that the individuals he truly represented were the
4,000 people who followed his publication directly.
REPRESENTATIVE CLAMAN noted that as one of the 650,000 Alaskans
that received a dividend, Mr. Houghtaling did not represent him.
3:34:09 PM
CHAIR KREISS-TOMKINS closed public testimony on HJR 7.
[HJR 7 was held over.]
HB 73-PERM FUND; ADVISORY VOTE
3:34:13 PM
CHAIR KREISS-TOMKINS announced that the next order of business
would be HOUSE BILL NO. 73, "An Act relating to use of income of
the Alaska permanent fund; relating to the amount of the
permanent fund dividend; relating to the duties of the
commissioner of revenue; relating to an advisory vote on the
permanent fund; providing for an effective date by repealing the
effective date of sec. 8, ch. 16, SLA 2018; and providing for an
effective date."
CHAIR KREISS-TOMKINS opened public testimony on HB 73.
3:34:34 PM
ADAM HYKES said he appreciated the advisory note in this piece
of legislation, which would put it before Alaska voters. He
informed the committee that he would be a "no" vote if this ever
made it on the ballot. Further, he expressed his opposition to
the proposed 50/50 split on the already 75/25 split on Alaska
royalties. He shared his understanding that the word
"appropriation" in the bill suggested a legislative budgetary
appropriation, which he believed was extremely far from Governor
Hammond's intent for the PFD. He opined that "what had been
done" to the PFD was completely unfair without a vote of the
people. He added that he specifically objected to replacing
"corporations shall transfer" with "legislature may appropriate"
in Section 2 on page 2, as if it were [the legislature's] money
to begin with, he said. He recommended that "the legislature
may appropriate" should be deleted from the bill language
entirely.
3:37:31 PM
CHAIR KREISS-TOMKINS, after ascertaining there was no one else
who wished to testify, closed public testimony on HB 73.
CHAIR KREISS-TOMKINS announced that HB 73 was held over.
HB 124-FILLING VACANCY IN LEGISLATURE
3:38:06 PM
CHAIR KREISS-TOMKINS announced that the next order of business
would be HOUSE BILL NO. 124, "An Act relating to filling a
vacancy in the legislature by appointment."
3:38:31 PM
REPRESENTATIVE BEN CARPENTER, Alaska State Legislature, as prime
sponsor, presented HB 124. He noted that the impetus for the
bill developed last summer when former Representative Gary Knopp
passed away. He paraphrased the sponsor statement [included in
the committee packet], which read as follows [original
punctuation provided]:
Currently ambiguity exists in AS 15.40.320 regarding
the time frame and exceptions in filling vacancies
within 30 days.
HB124 clarifies this language pertaining to the
vacancy appointment to the Alaska State Legislature.
Since statehood Alaskan have gone without
representation in this body 21 times for a cumulative
impact of over 1,615 days.
While the current language clearly indicates that
"when a vacancy occurs in the state legislate, the
governor, within 30 days, shall appoint a qualified
person to fill the vacancy." The next sentence
provides exceptions and creates the ambiguity. HB124
look to articulate in a more direct manor and provide
additional guidance as to when.
HB124 adds the additional language "within 30 days
after the vacancy occurs:". This will limit the
requirement to fill the vacancy when it will no longer
be necessary or prudent due to incoming electorates.
HB124 separates for the purpose of clarity language
that only pertains to the other body.
REPRESENTATIVE CARPENTER elaborated that the statute in question
[AS 15.40.320] contained two exceptions and a qualifying
statement to the governor's 30-day appointment requirement. The
first exception, he said, referred to the expiration of the
remainder of the predecessor's term; the second exception
referred to Senate vacancies filled by special election; and the
qualifying statement referred to the legislature meeting,
convening, or reconvening. He maintained that the ambiguity was
based on individual interpretation and whether the qualifying
statement referred to both exceptions. He recalled that
Governor Dunleavy did not appoint a replacement for District 30
[Representative Knopp's district] because he claimed to lack the
authority to make the appointment because the term of office
would have expired before the next legislature met, convened, or
reconvened. He opined that the qualifying statement should
apply only to the second exception, as its impact on the first
exception would negate the first requirement to fill the vacancy
within 30 days. He said it could be argued that the vacancy
appointment provision was intended to ensure representation
during legislative session; however, that interpretation would
"not in the best interest of the people and is counter to our
representative form of government," he contended. He reasoned
that the framers of Alaska's government intended for continuous
representation from each district in the legislature. He
explained that HB 124 would provide clarity by restructuring the
statute and adding the language "within 30 days after the
vacancy occurs:" to communicate that the exception to the 30-day
requirement would apply only to appointments wherein the
predecessor's term would expire within those 30 days. The
additional language would result in a requirement for the
governor to submit a vacancy appointment within 30 days unless
the vacancy occurred within the 30 days preceding the start of
the first session of the new legislature.
3:43:32 PM
RICHARD BEST, Staff, Representative Ben Carpenter, on behalf of
Representative Carpenter, prime sponsor of HB 124, presented a
sectional analysis [included in the committee packet], which
read as follows [original punctuation provided]:
Amends AS 15.40.320 Condition and time for filling
vacancy by appointment.
Deletes language (line 6-10) If the remainder of the
term of the predecessor in office will expire or if a
vacancy in the state senate will be filled by a
special election before the legislature will next
meet, convene, or reconvene,
Adding language (Line 10) if.
Adding sub-section 1 (line 11-12): The remainder of
the term of the predecessor in office will expire
within 30 days after the vacancy occurs; or.
Adding sub-section 2 (line 13-14): A vacancy in the
state senate will be filled by a special election
before the legislature will next meet, convene, or
reconvene.
3:44:23 PM
REPRESENTATIVE EASTMAN inquired about the bill sponsor's intent
regarding a situation in which an elected legislator resigned in
the last 30 days of his/her term.
REPRESENTATIVE CARPENTER said it would be acceptable to continue
without representation for those 30 days due to the statutory
exception. He believed that HB 124 would provide greater
clarity for such a circumstance. He explained that if HB 124
were to pass, there wouldn't be an appointment within those 30
days and a new legislator who was duly elected would be seated
[to fill the vacancy] "with the process of the new legislature."
3:45:45 PM
REPRESENTATIVE EASTMAN clarified that the scenario he had
envisioned was one in which a new legislator could not be seated
because the elected legislator is not available; "the term of
office ... is going to expire in 30 days, so you're not able to
appoint anyone; so you literally have to wait until the time
expires; and then on that first day of the session, you can,
perhaps, then appoint someone." He questioned the benefit of
the 30-day exception.
REPRESENTATIVE CARPENTER supposed that the 30-day exception
would not be necessary if the mechanics of appointments were as
simple as the governor picking a name. However, he contended
that in reality, the process was slow and onerous. He indicated
that the 30-day exception was intended to provide more
flexibility for those unexpected and less than ideal scenarios.
3:47:41 PM
REPRESENTATIVE CLAMAN shared his understanding that the 30-day
requirement was a practical timeframe for the governor to gather
and submit names. He reasoned that the governor couldn't be
asked to fill a vacancy if there were only 30 days left. He
asked whether Representative Carpenter agreed with that
analysis.
REPRESENTATIVE CARPENTER concurred. He believed that there
should be no statutory interpretation that would allow the
governor to wait 171 days to submit an appointment, which
occurred in the instance of Representative Knopp's vacancy.
REPRESENTATIVE CLAMAN questioned why someone from Kenai didn't
sue the governor for failing to make an appointment within 30
days after Representative Knopp's passing. He believed that
would have resolved the statutory ambiguity in question.
3:49:11 PM
REPRESENTATIVE CARPENTER was unsure why no one sued the
governor. He surmised that there had been other pressing
matters to attend to regarding the COVID-19 crisis. Further, he
said he represented a conservative district that disliked taking
legal action.
3:49:48 PM
REPRESENTATIVE CLAMAN recalled Representative Carpenter's
earlier statement regarding the "clear intent" from the framers
of Alaska's representational form of government for continuous
representation from each district in the legislature. He asked
where that intent was specified in the framer's document.
REPRESENTATIVE CARPENTER directed attention to AS 15.40.320,
which indicated that the governor shall appoint a qualified
person to fill a vacancy when one occurs in the legislature. He
believed that the statutory language suggested that vacancies
should be filled under normal circumstances. He continued by
emphasizing that since statehood, vacancy appointments had been
delayed 21 times. He believed that when a vacancy lasted longer
than 30 days there was something wrong with the process, as
Alaskans were without representation during that time.
3:52:00 PM
REPRESENTATIVE CLAMAN, returning to statement regarding "clear
intent," sought to verify that Representative Carpenter was
referring to the legislature's intent in passing this statute as
opposed to the framer's intent in drafting the constitution.
REPRESENTATIVE CARPENTER confirmed he was referring to whoever
created the statute.
3:52:31 PM
REPRESENTATIVE CLAMAN informed the committee that the
legislature established the statute in 1960. He referred to a
letter from Legislative Research Services [included in the
committee packet], which contained a table of appointments made
to fill vacancies in the Alaska State Legislature that occurred
more than 30 days after a death or resignation. In these
instances, he asked whether the governor had failed to comply
with the 30-day requirement or whether the governor had
complied, and the legislature had taken longer to fill the
vacancies.
3:53:52 PM
REPRESENTATIVE CARPENTER said there were undoubtedly many
different reasons for delays in the process throughout history.
He clarified that each instance may not have been remedied by
the proposed legislation.
REPRESENTATIVE CLAMAN asked how many times the governor had
failed to meet the 30-day requirement aside form Representative
Knopp's replacement.
REPRESENTATIVE CARPENTER deferred to Mr. Best.
3:55:03 PM
MR. BEST explained that the highlighted numbers on the table
indicated [when] the governor had appointed somebody and when
that appointee either had accepted or not accepted.
CHAIR KREISS-TOMKINS pointed out that based on the provided
information, it would be possible to parse out in how many
instances the governor was the dilatory factor.
REPRESENTATIVE CLAMAN, regarding data provided by Legislative
Research Services, opined that further analysis of when the
governor had or had not complied with the 30-day requirement
would be helpful.
CHAIR KREISS-TOMKINS agreed. He said the requested information
would provide a better sense of the scope of the precedent.
3:56:43 PM
REPRESENTATIVE TARR pointed out that Representative Knopp's
vacancy occurred during the pandemic. She questioned whether it
was an appropriate example, as pandemic-related factors could
have significantly influenced or hindered the appointment
process.
REPRESENTATIVE CARPENTER believed that the delay was not COVID-
related. Nonetheless, he pointed out that it could be argued
that all decisions made in 2020 were impacted by the pandemic.
He said the proposed legislation would not materially change the
statute; instead, it would clarify that the 30-day requirement
must be followed by the governor unless one of the allowable
exceptions applied. Further, it would specify that an
appointment would not have to be made within 30 days if the
vacancy occurred 30 days prior to session, as the situation
would resolve itself.
3:59:25 PM
REPRESENTATIVE TARR directed attention to the language on page
1, line 10, "the governor may not fill the vacancy if". She
questioned whether the term "may" was the impetus for the
governor's interpretation of the statute. Additionally, she
asked whether "may" should be replaced by "shall" to make the
exemptive language more proscriptive.
REPRESENTATIVE CARPENTER noted that he had asked Legislative
Legal Services the same question regarding "may" versus "shall".
He relayed that the term "may" was adequately prohibitive.
CHAIR KREISS-TOMKINS noted that Megan Wallace, Legislative Legal
Services, was available for questions.
REPRESENTATIVE TARR asked for a legal interpretation of the
sequence of events surrounding Representative Knopp's vacancy.
4:01:17 PM
MEGAN WALLACE, Director, Legislative Legal Services, shared her
understanding that AS 15.40.320 had a long-standing
interpretation that the exception in the existing statute
provided that the governor may not fill the vacancy if the term
of the predecessor would be filled before the legislature meets,
convenes, or reconvenes. Therefore, it was the governor's
similar interpretation that he was prohibited by statute from
filling that vacancy because Gary Knopp's term would have
expired before the legislature met, convened, or reconvened.
She explained that if a special session had been called, for
example, the governor could have made an appointment to fill the
vacancy at that time in preparation for the legislature
convening or reconvening. She added that the statute as
written, was not consistent with the bill sponsor's intent.
Thus, the sponsor's changes to the statute would clarify the
sponsor's intention that the governor make the appointment
within 30 days - the only exception being if the term was set to
expire within 30 days of the next session. She anecdotally
reported that the current interpretation of the existing statute
was that it was intended to potentially prevent the governor
from appointing an incumbent before an election were to occur;
alternatively, if the legislature were not to convene again
before the term expired, the appointee wouldn't be able to sit
on an interim committee or otherwise participate because
appointment to a committee would require action by the body.
REPRESENTATIVE TARR noted that the provision in the constitution
read "a vacancy in the legislature shall be filled for the
unexpired term as provide by law. If no provision is made the
governor shall fill the vacancy by appointment." She opined
that there should not be these reoccurring periods in which
Alaskans are without representation.
4:05:08 PM
CHAIR KREISS-TOMKINS asked whether the bill sponsor had
communicated with the governor's office about the governor's
interpretation of the existing statute around the time of
Representative Knopp's passing.
REPRESENTATIVE CARPENTER answered no.
CHAIR KREISS-TOMKINS asked whether the bill sponsor had
considered it.
REPRESENTATIVE CARPENTER answered no. He pointed out that the
requirement for filling a vacancy was stipulated in both the
constitution and statute; therefore, he didn't feel it necessary
to ask the governor why he had not made the appointment. He
added that the governor's public statements on the matter
sufficed.
4:08:05 PM
MS. WALLACE, in response to a question from Representative
Vance, conveyed that given the long-standing interpretation of
the existing statute, the proposed legislation would clarify the
ambiguity if there was a desire to ensure that the governor made
an appointment within 30 days regardless of when the legislature
would convene or reconvene. In terms of informally polling
members for convening a special session, there would be a
vacancy in that district and the vacant position wouldn't be
polled, she said. She believed that scenario posed by
Representative Vance was not specifically related to the bill.
4:09:59 PM
REPRESENTATIVE VANCE considered a scenario in which there was a
vacancy and the legislature called itself into special session
within one week. She asked whether under existing statute, the
governor would still have to comply with the 30-day requirement
or whether the governor would have to fill that vacancy within
the time that the legislature convened the special session.
MS. WALLACE said that issue was not specifically provided for in
the current statute; however, based on passed precedent, she
presumed that the governor would move quickly to ensure that an
appointment was made before the special session. She explained
that predicting the result of a hypothetical dispute over the
timing before a special session was difficult because the
statute had never been litigated.
4:11:50 PM
CHAIR KREISS-TOMKINS questioned whether Representative Carpenter
had given any thought to the ambiguity in the statutes
pertaining to legislative confirmations.
REPRESENTATIVE CARPENTER explained that in the midst of the
research process, he had identified a previous legislator who
had put forward a similar bill with a broader scope.
Nonetheless, he said given the difficulty of advancing
legislation, the proposed legislation was simplified to one
issue.
CHAIR KREISS-TOMKINS asked which former representative had
proposed similar legislation.
REPRESENTATIVE CARPENTER answered Representative Mark Hodgins
[1997-1998].
4:14:11 PM
REPRESENTATIVE EASTMAN pointed out that Article 2, Section IV,
of the Constitution of the State of Alaska indicated that
special sessions may be called by the governor or by two-thirds
of the legislators. He sought to clarify whether "of the
legislators" referred to sitting legislators.
MS. WALLACE answered yes. She added that it's likely referring
to two-thirds of all 60 legislators, as opposed to two-thirds of
those whose seats are filled. She recalled that regardless of
whether there was an open seat, a vote would still be calculated
on total membership.
4:15:34 PM
REPRESENTATIVE EASTMAN surmised that the second exception in the
statutory language, which specified that a vacancy in the Senate
would be filled by a special election before the legislature
would next meet, convene, or reconvene, could yield a
significantly longer delay. He questioned whether there was a
way to amend the language to avoid the possibility of having a
250-day vacancy in the Senate.
REPRESENTATIVE CARPENTER supposed that there could be a way to
"tighten" the language; however, it was not something that he
had considered addressing in this bill. Furthermore, as a
member of the House, he said he strayed away from pursuing a
change that would impact the Senate.
4:17:29 PM
REPRESENTATIVE EASTMAN speculated that if vacancies in both the
House and the Senate occurred simultaneously, the governor would
not be able to fill the vacancy in the House due to the "or"
language [at the end of paragraph (1) on page 1, line 12].
REPRESENTATIVE CARPENTER deferred to Legislative Legal Services.
MS. WALLACE asked Representative Eastman to repeat the question.
REPRESENTATIVE EASTMAN remarked:
The operative language on line 10 is "the governor may
not fill the vacancy [if]" and we're not
distinguishing there whether the vacancy is a House or
a Sente vacancy and then we add qualifying language
about when he cannot fill the vacancy, and we have
option one or option two. ... It would seem to me
that if there is a Senate vacancy which is caught up
under option 2 and we have in that same window of time
a House vacancy, that even though maybe the intent
right now is that the House vacancy wouldn't get
caught up - the "or" language could potentially mean
that the House vacancy is caught up with the Senate
vacancy.
MS. WALLACE read paragraph one and two as not dependent on one
another. She said if both a House and a Senate vacancy were to
occur at the same time, it would depend on which paragraph was
operable to control the scenario. She surmised that a Senate
vacancy, for example, could fit the parameters of paragraph (1)
and other vacancies could fit the parameters of paragraph (2).
She said the "or" would allow for whichever provision was
applicable to control the circumstances of the vacancy.
4:21:31 PM
REPRESENTATIVE EASTMAN asked whether there was language that
could be introduced to clarify that the language in paragraph
(2) would not allow the governor to neglect filling a vacancy in
the House.
MS. WALLACE said she would be happy to work on that if there was
a desire to clarify the language in question.
REPRESENTATIVE EASTMAN asked whether during the confirmation
process, a vacancy should be filled by the legislators who were
elected at the same time as the representative who vacated or
whether there was a benefit to waiting to confirm the appointee
by the next class of legislators.
REPRESENTATIVE CARPENTER acknowledged that under the existing
language, it wasn't clear. He noted that the language in the
proposed legislation would have clarified that if the vacancy
were within the 30 days prior to the start of the next
legislature, then the governor would not make an appointment.
Further, whoever was elected come the start of the next
legislative cycle would fill the vacant seat. He expressed his
hope that HB 124 would clarify any existing ambiguity that had
troubled prior legislatures.
4:26:11 PM
REPRESENTATIVE EASTMAN inquired about limiting the governor's
ability to appoint someone before an election. Alternatively,
if the governor were allowed to make the appointment, he asked
whether it would be valuable to provide the governor with the
discretion to choose not to make the appointment.
REPRESENTATIVE CARPENTER deferred to the constitution. He
opined that representation was of the highest order; therefore,
it did not make sense to him to add statutory language that
would allow the governor not to appoint someone, as every
district should be represented in the legislature.
4:28:56 PM
REPRESENTATIVE VANCE inquired about the procedure for filling a
vacancy left by an unaffiliated member.
MS. WALLACE replied that that scenario is provided for under
statute.
CHAIR KREISS-TOMKINS expressed interest in addressing that
statutory language in a future bill hearing.
4:30:27 PM
CHAIR KREISS-TOMKINS announced that HB 124 was held over.
4:31:00 PM
The committee took an at-ease from 4:31 p.m. to 4:34 p.m.
HB 142-PFD ELIGIBILITY
4:44:59 PM
CHAIR KREISS-TOMKINS announced that the next order of business
would be HOUSE BILL NO. 142, "An Act relating to eligibility for
the permanent fund dividend." [Before the committee was CSHB
142(JUD).]
4:45:46 PM
REPRESENTATIVE KEN MCCARTY, Alaska State Legislature, as prime
sponsor of HB 142, provided brief introductory remarks.
4:46:22 PM
CHAIR KREISS-TOMKINS opened public testimony on CSHB 142(JUD).
4:47:12 PM
BERT HOUGHTALING stated, "From what I've heard of this
particular bill, I'm not too much against what is being done."
He understood that the bill would make it easier for those
working out of state to file for their PFD, as well as further
clarify the eligibility criteria for the PFD. He added that if
that was correct, then he was supportive of the proposed
legislation. He concluded by addressing HB 73 and HJR 7.
4:49:43 PM
NOLAN HEATH informed the committee that he was a Vietnam
veteran. He believed that service members who were assigned to
a base outside of Alaska should not be eligible for a dividend
even if they maintained residency in Alaska. However, if those
service members returned to Alaska, they should be allowed to
reestablish their eligibility, he opined.
4:51:50 PM
CHAIR KREISS-TOMKINS, after ascertaining that no one else wished
to testify, closed public testimony on CSHB 142(JUD).
4:52:12 PM
CHAIR KREISS-TOMKINS referenced a letter from the Department of
Revenue (DOR), dated 4/28/21 [hard copy included in the
committee packet], which provided responses to questions asked
in the House Judiciary Standing Committee. The third paragraph
on page 1 specified that AS 43.23.008 and 15 AAAC 23.163
contained the language allowing snowbirds to be absent from
Alaska for up to 180 days. He asked why the 180-day threshold
was placed in regulation as opposed to statute. Further, he
questioned whether DOR could theoretically increase or decrease
that threshold through the regulatory process.
4:53:54 PM
BOBBI SCHERRER, Appeals Manager, Permanent Fund Dividend
Division, Department of Revenue, stated that from 1999 to 2003,
the language was found under AS 43.23.008(13)(A); however, in
2004, the statute was changed to its present form. Regarding
Chair Kreiss-Tomkins' second question, she offered to follow up
with the requested information.
4:54:53 PM
CHAIR KREISS-TOMKINS questioned whether a piece of legislation
removed that language from law in 2004.
MS. SCHERRER said she did not know and offered to follow up with
the requested information.
CHAIR KREISS-TOMKINS expressed his surprise that this policy was
in regulation rather than statute.
4:55:37 PM
REPRESENTATIVE MCCARTY clarified that the 180-day threshold was
presently in statute. He opined that increasing the length of
allowable absence for snowbirds could affect the economy if they
chose to remain in another state for a longer amount of time.
CHAIR KREISS-TOMKINS noted that his predilection would be to
tighten the limit so that people would need to spend a "strong
majority" of the year in Alaska in order to qualify for
eligibility.
4:56:52 PM
The committee took an at-ease from 4:57 p.m. to 4:59 p.m.
4:59:00 PM
CHAIR KREISS-TOMKINS thanked Representative Tarr for directing
his attention to several statutes during the at-ease.
4:59:09 PM
REPRESENTATIVE VANCE referenced page 1, paragraph 4 of the
letter from DOR [included in the committee packet], which
indicated that the repeal of AS 43.23.0005(a)(4), AS
43.23.005(f), and AS 43.23.008(e), per Section 3 of CSHB
142(JUD), would increase the number of eligible applicants each
year that were absent on allowable absences under AS
43.23.008(a). She inquired about any unintended consequences
that may occur as a result of the repeal language in Section 3.
Further, she asked the bill sponsor to speak to his intent.
5:01:09 PM
REPRESENTATIVE MCCARTY said the intent of the bill was to make
PFD eligibility equitable. He added that "not everybody gets to
move from the state and keep collecting the permanent fund
dividend." He explained that military members had been allowed
to leave the state with the intent to return while still
collecting their PFD; however, that intent was not always
fulfilled. He added that other people may have had the intent
to leave Alaska and return but they were not allowed the same
privilege. Therefore, the intent of the proposed legislation
was to ensure that the dividend was being disbursed to people
residing in the state, he indicated.
5:02:42 PM
REPRESENTATIVE VANCE said she would like to hear from both
Legislative Legal Services and DOR to ensure that there were
consistent interpretations of the repeal language and its
potential ramifications. She directed attention to the repeal
language in Section 3 of CSHB 142(JUD). She inquired about the
full impact of that language, as DOR had indicated that
repealing those statutes would apply to all allowable absences
under AS 43.23.008(a) and that the division would apply the law
consistently and uniformly.
5:03:05 PM
EMILY NAUMAN, Deputy Director, Office of the Director,
Legislative Legal Services, responded that currently, a person
was allowed to be absent for the reasons listed under AS
43.23.008; however, AS 43.25.005 required eligible individuals
to have been present in the state for at least 72 consecutive
hours during the prior two years before the current dividend
year even if they claimed an allowable absence. She stated that
the proposed legislation would repeal that requirement, so if
people were out of state on an allowable absence, they would no
longer be required to prove they had returned to Alaska for at
least 72 consecutive hours.
5:05:20 PM
REPRESENTATIVE EASTMAN surmised that the repeal language would
change the annual number of eligible applicants. He questioned
whether that overall number would increase or decrease.
MS. SCHERRER stated that because the repeal of AS
43.23.005(a)(4) would impact all allowable absence types [under
AS 43.23.008(a)], the 14,500 individuals claiming an allowable
absence would no longer be required to prove they had returned
to Alaska for 72 consecutive hours to prove their intent.
5:06:50 PM
REPRESENTATIVE EASTMAN asked how many individuals would be
eligible to receive a dividend should the bill pass.
MS. SCHERRER reported that of the 14,500 individuals claiming an
allowable absence, 2,000 were denied for nonresponse or failure
to provide proof of physical presence in the state for at least
72 consecutive hours. She explained that those 2,000 people
would become eligible if the bill were to pass, while the
remaining 12,500 would maintain eligibility, but would no longer
be required to provide that proof.
5:08:28 PM
REPRESENTATIVE EASTMAN asked how many military members would be
denied eligibility if the bill were to pass.
MS. SCHERRER said the Permanent Fund Dividend Division was not
able to break down the figures by type of absence.
CHAIR KREISS-TOMKINS sought to clarify whether repealing the 72-
hour requirement would reduce the number of eligible applicants
by 12,500.
MS. SCHERRER stated that the number of active-duty military
members who would no longer be eligible for the PFD would amount
to 10,000 per year.
5:11:45 PM
CHAIR KREISS-TOMKINS sought to clarify that which the 14,500-
figure corresponded.
MS. SCHERRER restated that 14,500 was the number of individuals
per year who claimed an allowable absence under AS
43.23.009(a)(1-16) and were required to prove they had returned
to Alaska for at least 72 consecutive hours.
5:12:18 PM
REPRESENTATIVE EASTMAN asked how long a person could be absent
from the state for education or training purposes under the
proposed legislation.
MS. SCHERRER answered that the bill would not change the other
allowable absence types. She directed attention to AS
43.23.008(d), which specified that people who had been absent
from the state for more than 180 days in each of the five
preceding qualifying years must prove that they had been
physically present in the state for at least 30 cumulative days
during the past five years to maintain residency in Alaska
through the PFD program.
5:13:40 PM
REPRESENTATIVE EASTMAN asked how long a military member could be
absent from Alaska.
MS. SCHERRER said the proposed legislation would require that
the service member be absent on deployment or a temporary duty
assignment. She believed that there was no specific time limit
if a military member was absent for either of those reasons;
however, like the other allowable absences, a temporary duty
assignment or deployment would still have to comply with AS
43.23.008(d).
REPRESENTATIVE EASTMAN asked the bill sponsor about the
allowable length of absence for a service member on military
deployment or temporary duty travel (TDY).
REPRESENTATIVE MCCARTY answered that it would depend on the
military's discretion. He explained that if an individual were
deployed for several years while based out of Alaska, that
person would still be eligible.
5:15:35 PM
REPRESENTATIVE EASTMAN inquired about an astronaut's eligibility
if he/she were in space.
REPRESENTATIVE MCCARTY contemplated whether the National
Aeronautics and Space Administration (NASA) would be categorized
as military.
5:17:26 PM
REPRESENTATIVE STORY asked whether the Department of Military &
Veterans' Affairs (DMVA) had expressed concern about the 10,000
military members who would lose eligibility if the bill were to
pass.
REPRESENTATIVE MCCARTY relayed that the Veterans of Foreign Wars
(VFW) and American Legion believed that if people had left
Alaska, they should no longer receive a dividend.
REPRESENTATIVE STORY was concerned that the National Oceanic and
Atmospheric Administration (NOAA) Commissioned Officer Corps and
the U.S. Public Health Service (USPHS) Commissioned Corps had
not been allowed to receive a PFD. She expressed interest in
proposing a future amendment that would remedy that.
5:20:12 PM
REPRESENTATIVE MCCARTY said he shared that concern and welcomed
further discussion on the issue. He understood that eligibility
was addressed under AS 43.23.005.
REPRESENTATIVE STORY expounded that she was concerned about
Alaska residents who served in the NOAA Commissioned Officer
Corps and USPHS Commissioned Corps. She believed that they
should qualify to receive a dividend despite being absent for
long periods of service.
CHAIR KREISS-TOMKINS directed attention to AS 43.23.008(a)(1),
which was the allowable absence for receiving secondary or
postsecondary education on a full-time basis. He asked whether
that would include graduate school.
MS. SCHERRER answered yes, a person in graduate school would
fall under that category.
CHAIR KREISS-TOMKINS asked how many individuals qualified for
that allowable absence.
MS. SCHERRER offered to follow up with the requested
information.
CHAIR KREISS-TOMKINS requested a list of how many people
qualified under each respective allowable absence listed in AS
43.23.08(a)(1-16).
5:23:38 PM
CHAIR KREISS-TOMKINS asked what proportion of allowable absences
claimed under AS 43.23.008(a)(1) were for graduate school or
something other than undergraduate, vocational, or technical
education.
MS. SCHERRER believed that the majority of individuals claiming
that allowable absence were four-year college students.
5:24:22 PM
REPRESENTATIVE KAUFMAN asked whether there was a "tabular
version of conformance" that was used in managing this data that
could be provided to the committee.
MS. SCHERRER offered to follow up with the requested
information.
5:25:32 PM
REPRESENTATIVE EASTMAN expressed concern that the proposed
legislation would allow those claiming allowable absences, such
as education, work, or the Peace Corps, for example, to be out
of state for five years, but the same opportunity would not be
allowed for service members. He believed the bill was
preferencing other service over military service. He questioned
whether that could be more equitable.
REPRESENTATIVE MCCARTY welcomed a friendly amendment that would
address that issue.
REPRESENTATIVE EASTMAN pointed out that a military member may
have a harder time fulfilling the requirement under AS
43.23.008(d)(1), which would allow an individual who was absent
for five years to show proof that they had been present in the
state for at least 30 cumulative days. He reiterated his
concern that service members could be at a disadvantage.
5:28:46 PM
CHAIR KREISS-TOMKINS reopened public testimony on CSHB 142(JUD).
5:29:03 PM
LATRICE WILLIAMS informed the committee that she was a prior
active-duty military member who had been stationed in Alaska.
She believed that only people who physically resided in Alaska
should be eligible for the PFD. Additionally, service members
who were stationed in Alaska for three years, for example,
should also be eligible. She maintained her belief that service
members who were assigned to a different location outside of
Alaska should lose their eligibility.
5:30:46 PM
CHAIR KREISS-TOMKINS, after ascertaining there was no one else
who wished to testify, closed public testimony on CSHB 142(JUD).
CHAIR KREISS-TOMKINS announced that CSHB 142(JUD) was held over.
HB 5-SEXUAL ASSAULT; DEF. OF "CONSENT"
5:31:33 PM
CHAIR KREISS-TOMKINS announced that the final order of business
would be SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 5, "An Act
relating to sexual abuse of a minor; relating to sexual assault;
relating to the code of military justice; relating to consent;
relating to the testing of sexual assault examination kits; and
providing for an effective date."
CHAIR KREISS-TOMKINS resumed the discussion on Amendment 4,
which had been introduced for consideration during the previous
bill hearing on 4/27/21 [when the motion by Representative Tarr
to adopt Amendment 4 was left pending with an objection by
Representative Eastman.]
5:32:59 PM
REPRESENTATIVE TARR, prime sponsor of HB 5, [renewed her motion]
to adopt Amendment 4 to SSHB 5, labeled 32-LS0065\G.6 Radford,
4/26/21, which read:
Page 2, line 9:
Delete "who is"
Insert "whom the offender has"
Page 2, line 11, following "person":
Insert "based on the offender's physical
identity, not on characteristics, traits, or
accomplishments of or similar facts about the
offender, with reckless disregard that the person
would not have consented to the sexual penetration if
the person knew the offender's real identity"
Page 2, following line 11:
Insert a new bill section to read:
"* Sec. 2. AS 11.41.410(b) is amended to read:
(b) Sexual assault in the first degree,
(1) under (a)(1) - (4) of this section, is
an unclassified felony and is punishable as provided
in AS 12.55;
(2) under (a)(5) of this section, is a
class A felony and is punishable as provided in AS
12.55."
Renumber the following bill sections accordingly.
Page 2, line 31:
Delete "who is"
Insert "whom the offender has"
Page 3, line 2, following "person":
Insert "based on the offender's physical
identity, not on characteristics, traits, or
accomplishments of or similar facts about the
offender, with reckless disregard that the person
would not have consented to the sexual contact if the
person knew the offender's real identity"
Page 6, line 19, following "AS 11.41.420(a), ":
Insert "AS 11.41.420(b), as amended by sec. 2 of
this Act,"
Delete "sec. 2"
Insert "sec. 3"
Delete "sec. 3"
Insert "sec. 4"
Page 6, line 20:
Delete "sec. 4"
Insert "sec. 5"
Page 6, lines 20 - 21:
Delete "sec. 5"
Insert "sec. 6"
Page 6, line 21:
Delete "sec. 6"
Insert "sec. 7"
Page 6, line 22:
Delete "sec. 7"
Insert "sec. 8"
Delete "sec. 8"
Insert "sec. 9"
Page 6, line 23:
Delete "sec. 9"
Insert "sec. 10"
Page 6, line 24:
Delete "sec. 11"
Insert "sec. 12"
Page 6, line 25:
Delete "secs. 1 - 9 and 11"
Insert "secs. 1 - 10 and 12"
Page 6, line 26:
Delete "Section 10"
Insert "Section 11"
REPRESENTATIVE EASTMAN [renewed his objection] for the purpose
of discussion.
5:33:13 PM
REPRESENTATIVE TARR highlighted the three objectives of
Amendment 4: to clarify the language in the rape by fraud
provision; to reclassify the crime of rape by fraud from an
unclassified felony to a class A felony; and to reclassify
sexual contact by fraud to a class B felony. Additionally, she
said she would consider the change of "physical identity" to
"actual identity" as a friendly amendment, per the committee's
discussion in the previous bill hearing.
CHAIR KREISS-TOMKINS noted that he may be the "odd one out" in
terms of the relative benefits of "actual" versus "physical".
5:35:32 PM
REPRESENTATIVE EASTMAN suggested replacing "physical" [identity]
with "personal" [identity].
REPRESENTATIVE TARR said she would appreciate an attorney's
input on the wordsmithing to avoid any unintended consequences.
5:36:29 PM
JAMES STINSON, Director, Office of Public Advocacy (OPA),
Department of Administration, defined "actual" as "existing in
fact," or "contrasted with what as intended, expected, or
believed." He acknowledged that "actual identity" could be
perceived as relatively broad, as its meaning was somewhat all-
encompassing. Further, he believed "actual identity" could be
confusing, as the following language would read "not on
characteristics, traits, or accomplishments", which were
sometimes considered part of a person's actual identity. He
added that he understood the intention behind "personal
identity" too, as "personal" was generally defined as "belonging
to a particular person rather than anyone else." Ultimately, he
believed that "physical identity" seemed to capture the
legislative intent and understood why it was initially chosen.
5:38:51 PM
REPRESENTATIVE EASTMAN remarked:
Physical identity - does it have to be a specific
person that we can have a name for, or is it also a
violation if it's someone they don't know versus
someone they do know?
5:40:34 PM
MR. STINSON posed the following hypothetical in an attempt to
clarify the question from Representative Eastman:
Would it be someone meeting online getting "catfished"
where it's somebody that actually knows them, but
they're impersonating a different identity? And then
there's somehow a meetup, where for some reason,
they're not able to see the person and they have
potential sex and then lights come on and they realize
its actually somebody known to them? Is that ... sort
of what you're getting at?
REPRESENTATIVE EASTMAN said he was inquiring about situations in
which the [offender] was not seen physically due to darkness,
smoke, or a physical barrier, for example. He asked whether
"physical" would capture a scenario where someone was intending
to avoid contact with a known individual; however, after the
fact, it turned out to be an individual that he/she knew.
5:42:03 PM
MR. STINSON said it would depend on the specifics of the
scenario. He explained that if it were a situation in which
someone was ambiguous about who they were engaging in sexual
intercourse with but was otherwise consenting, [the proposed
legislation] would not capture that. He reiterated that
Amendment 4 was intended for a circumstance where someone was
impersonating another physical person that was known to the
victim and thereby gets his/her consent.
5:43:31 PM
REPRESENTATIVE EASTMAN sought to clarify the class B felony
reclassification, which did not appear to be specifically
represented in the language in Amendment 4.
REPRESENTATIVE TARR said she did not understand the question.
REPRESENTATIVE EASTMAN sought to understand how the proposed
amendment was reclassifying sexual contact by fraud to a class B
felony.
REPRESENTATIVE TARR replied, "It should insert it into the
section where it's the sexual assault in the second degree,
because sexual assault in the second degree is a class B felony.
And that is not otherwise ... in the bill, but that should be
the place where it gets inserted in statute."
REPRESENTATIVE EASTMAN directed his previous question to a
drafter from Legislative Legal Services to better understand how
that reclassification was occurring within Amendment 4.
5:45:04 PM
CLAIRE RADFORD, Attorney, Legislative Legal Services,
Legislative Affairs Agency, explained that Amendment 4 would
insert a new Section 2 into the bill, which would make sexual
penetration by fraud a class A felony. Sexual contact by fraud
was in the crime of sexual assault in the second degree, which
was presently a class B felony and would not be altered by the
amendment.
5:45:35 PM
REPRESENTATIVE KAUFMAN redirected the discussion back to
"actual" versus "physical".
REPRESENTATIVE TARR noted that the present wording was "physical
identity"; however, "true" and "real" had also been suggested.
She pointed out that "real identity" was utilized on line 9 of
Amendment 4.
5:47:19 PM
REPRESENTATIVE VANCE asked whether the existing language of
"real identity" on line 9 and "physical identity" on line 6
would sufficiently capture the legislative intent or if further
clarification were necessary.
MR. STINSON reiterated that he found comfort in the word
"physical" because the legislature was not trying to make it a
crime for someone to lie about his/her "real identity" or "true
identity" but was trying to stop a person from impersonating
another physical person that was known to the victim. He added
that he would not have an issue with "real physical identity" if
the committee wanted to add that qualifier on line 6.
REPRESENTATIVE TARR asked Mr. Skidmore to respond.
5:49:41 PM
JOHN SKIDMORE, Deputy Attorney General, Office of the Attorney
General, Department of Law, said the challenge with all of those
terms is that they had not been used in statute before. He
added that he could not say whether one was necessarily better
than the other. He maintained that his preference was to
replace "physical" with "actual" or "real" because the
legislative intent was to capture someone who was impersonating
another specific person. He reiterated that ultimately, it came
down to a policy call.
CHAIR KREISS-TOMKINS asked Mr. Skidmore to provide an example of
a scenario that would be captured under "actual identity" that
"physical identity" would not capture.
5:51:18 PM
MR. SKIDMORE said he could not come up with a specific
hypothetical at this time.
CHAIR KREISS-TOMKINS asked Mr. Stinson if he could provide an
example.
MR. STINSON expressed concern that "actual" could be interpreted
more broadly than "physical" because someone's actual identity
could be interpreted as a false name or some other aspect. He
maintained his belief that "physical" would better capture the
intent, because "physical" indicated an immutable attribute that
could not be lied about because it would be immediately
observable.
5:53:44 PM
REPRESENTATIVE EASTMAN asked whether someone could give consent
if they had been "previously tricked" concerning the physical
identity of the person with whom they [engaged in sexual
contact].
MR. STINSON inquired about Representative Eastman's meaning of
"previously tricked". In response, he asked for confirmation
that Representative Eastman was inquiring about a situation in
which consent was given under the false pretenses that would
otherwise qualify as rape by fraud and then subsequently the
person decided that he/she wanted to consent to a second act
after finding out that the person was a different person. He
questioned whether that captured the question accurately.
REPRESENTATIVE EASTMAN clarified that he was focused on lines 7-
9 of Amendment 4. He remarked:
I'm talking about the potential victim in this
situation. Are there some circumstances and
situations where they could give consent because, even
though the potential offender is acting with reckless
disregard, they actually would have consented if they
had known and not been tricked?
5:57:03 PM
MR. STINSON said the difficulty of framing rape by fraud with an
affirmative consent framework is that the person does give
affirmative consent but has been tricked. He expounded that the
person would have consented to the act, but only by fraud or
deception. To the extent that the individual was undisturbed by
that fraud or deception, technically the law would be violated,
but there would be a question of how it would get reported or
prosecuted. He reiterated that this provision would apply to
the use of fraud to obtain what would otherwise be consensual
sexual contact or consensual sex, but the person then realized
that he/she had been duped, which was what this provision was
attempting to criminalize.
5:58:39 PM
CHAIR KREISS-TOMKINS directed the discussion back to Amendment
4.
5:59:10 PM
REPRESENTATIVE VANCE moved to adopt Conceptual Amendment 1 to
Amendment 4, such that the word "physical" on line 6 would be
replaced with "real". She believed that it would align with the
language on line 9 and be less restrictive than "physical".
Further, she opined that "real identity" would better capture
who the person actually was as opposed to the person's physical
appearance.
CHAIR KREISS-TOMKINS objected.
6:00:51 PM
REPRESENTATIVE TARR noted that the original language that had
been submitted to Legislative Legal Services contained the word
"true", which the drafters replaced with "real" [on line 9 of
Amendment 4].
6:01:12 PM
REPRESENTATIVE STORY questioned whether the bill sponsor was
supportive of the conceptual amendment.
REPRESENTATIVE TARR said she was "okay" with it; however, she
believed it would be a topic of further discussion.
CHAIR KREISS-TOMKINS said he had concerns; nonetheless, he
removed his objection. There being no further objection,
Conceptual Amendment 1 to Amendment 4 was adopted.
6:04:02 PM
REPRESENTATIVE EASTMAN moved to adopt Conceptual Amendment 2 [to
Amendment 4, as amended], which would delete "is" on page 2,
line 9, of SSHB 5 and insert "would not have consented if the
person knew the offender's real identity, but for the fact that
they were".
CHAIR KREISS-TOMKINS objected.
6:05:33 PM
REPRESENTATIVE TARR expressed her opposition to Conceptual
Amendment 2 to Amendment 4, as amended, because the bill
language was drafted in a specific tense and the proposed
conceptual amendment would "resituate" it.
6:06:10 PM
A roll call vote was taken. Representative Eastman voted in
favor of Conceptual Amendment 2 to Amendment 4, as amended.
Representatives Tarr, Story, Vance, Kaufman, and Kreiss-Tomkins
voted against it. Therefore, Conceptual Amendment 2 to
Amendment 4, as amended, failed by a vote of 1-5.
6:07:08 PM
REPRESENTATIVE EASTMAN removed his objection to the adoption of
Amendment 4, as amended. There being no further objection,
Amendment 4, as amended, was adopted.
CHAIR KREISS-TOMKINS invited final comment on SSHB 5, as
amended.
REPRESENTATIVE EASTMAN expressed concern that should SSHB 5, as
amended, pass, otherwise innocuous actions between two
consenting adults could be later construed "in a way that was
not intended."
6:08:53 PM
REPRESENTATIVE VANCE said she liked the bill but still had
reservations. She committed herself to continuing the work on
the proposed legislation in the next committee of referral.
CHAIR KREISS-TOMKINS emphasized the importance of addressing
sexual assault. Nonetheless, he expressed concern that as
amended, the rape by fraud provisions could allow for more
unintended consequences, ambiguity, and prosecutorial discretion
that could capture scenarios outside the legislative intent. He
said he was always troubled by further steps towards mass
incarceration as a solution to public safety problems.
6:10:34 PM
REPRESENTATIVE TARR agreed with the chair on the issue of long
prison sentences. She recited the quote, "rape is like a murder
where the victim survives," to emphasize the severity of the
impact. She added that the goal was to make improvements
without unintended consequences and to change the culture.
6:12:05 PM
REPRESENTATIVE VANCE moved to report SSHB 5, as amended, out of
committee with individual recommendations and the accompanying
fiscal notes. There being no objection, CSSSHB 5(STA) was
reported out of the House State Affairs Standing Committee.
6:12:34 PM
CHAIR KREISS-TOMKINS provided closing remarks and reviewed the
upcoming schedule.
6:12:44 PM
ADJOURNMENT
There being no further business before the committee, the House
State Affairs Standing Committee meeting was adjourned at 5:12
p.m.