Legislature(1995 - 1996)
02/05/1996 01:30 PM Senate JUD
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* first hearing in first committee of referral
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+ teleconferenced
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SENATE JUDICIARY COMMITTEE
February 5, 1996
1:30 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chairman
Senator Lyda Green, Vice-Chairman
Senator Mike Miller
Senator Al Adams
Senator Johnny Ellis
MEMBERS ABSENT
None
COMMITTEE CALENDAR
SJR 31 - SENATE JOINT RESOLUTION NO. 31
Proposing an amendment to the Constitution of the State of Alaska
relating to voter ratification of legislative approval of
amendments of the Alaska Statehood Act affecting an interest of the
State of Alaska under that Act.
SENATE BILL NO. 238
"An Act relating to the care and regulation of the care of animals;
relating to registration of animal abuse offenders; and relating to
crimes involving animals."
PREVIOUS SENATE COMMITTEE ACTION
SJR 31 - No previous Senate action.
SB 238 - No previous Senate action.
WITNESS REGISTER
Senator Drue Pearce
Alaska State Capitol
Juneau, Alaska 99811
POSITION STATEMENT: Sponsor of SJR 31
Senator Randy Phillips
Alaska State Capitol
Juneau, Alaska 99811
POSITION STATEMENT: Sponsor of SB 238
Liz Dodd
Alaska Civil Liberties Union
100 Parks St.
Juneau, AK 99801
POSITION STATEMENT: Opposed to SB 238
Mr. Brett Reid
City of Kenai
210 Fidalgo Ave., Suite 200
Kenai, AK 99611-7794
POSITION STATEMENT: Commented on SB 238
Mr. Bill Godek
City of Kenai
210 Fidalgo Ave., Suite 200
Kenai, AK 99611-7794
POSITION STATEMENT: Commented on SB 238
Ms. Diane Zarfoss
Alaska SPCA
520 Glacier Bay Circle #B
Anchorage, AK 99508
POSITION STATEMENT: Supports SB 238
Ms. Janice Adair
Dept. of Environmental Conservation
555 Cordova
Anchorage, AK 99503
POSITION STATEMENT: Opposed to SB 238
Ms. Sally Clampitt
Alaska Equine Rescue
5540 E. 98th
Anchorage, AK 99516
POSITION STATEMENT: Supports SB 238
Ms. Michele Girault
Friends of Pets
3740 Reflection Dr.
Anchorage, AK 99504
POSITION STATEMENT: Supports SB 238
Ms. Ethel Christensen
AK SPCA
2748 Lore Rd.
Anchorage, AK 99507
POSITION STATEMENT: Supports SB 238
Ms. Carol Jensen
4800 East 112th
Anchorage, AK 99516
POSITION STATEMENT: Commented on SB 238
Sgt. James McCann
Alaska State Troopers
1979 Peger Rd.
Fairbanks, AK 99709-5298
POSITION STATEMENT: Commented on SB 238
Mr. James Jenning
422 NRA Lane
Fairbanks, AK 99709
POSITION STATEMENT: Commented on SB 238
Ms. Beverly Nester
5465 Chena Hot Springs Rd.
Fairbanks, AK 99712
POSITION STATEMENT: Commented on SB 238
Mr. John Glotfelty
2355 Sunflower Loop
North Pole, AK 99705
POSITION STATEMENT: Opposed on SB 238
Mr. Jim Ellison
PO Box 55590
North Pole, AK 99705
POSITION STATEMENT: Opposed to SB 238
Mr. Larry Petty
PO Box 56114
North Pole, AK 99705
POSITION STATEMENT: Opposed to SB 238
ACTION NARRATIVE
TAPE 96-5, SIDE A
Number 001
SB 238 CRUELTY TO ANIMALS
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to
order at 1:31 p.m. The first order of business was SB 238.
SENATOR RANDY PHILLIPS, sponsor of SB 238, gave the following
overview of the measure. He sponsored SB 238 at the request of the
Society for the Prevention of Cruelty to Animals (SPCA) because of
the lack of enforcement of prevention of animal cruelty. The SPCA
concerns include: lack of animal care; vague animal statutes; and
a lack of resources to investigate complaints. Two groups worked
to craft the bill: the SPCA and MUSH (a dog mushers'
organization). He expressed concern about the fiscal notes, and
the steel jaw leg-hole traps for domesticated animals.
Number 075
SENATOR ADAMS asked how local ordinances would play into this
legislation. SENATOR PHILLIPS was not sure. SENATOR ADAMS asked
who would pay for shelter and vaccination costs once an animal is
picked up by DEC. SENATOR PHILLIPS expressed concern that the
state would pay the cost. SENATOR ADAMS referred to page 5, lines
8-9, and asked if any cultures presently consume dogs or cats.
SENATOR PHILLIPS was not aware of any in Alaska. SENATOR ADAMS
asked if the bill contains a definition of "domestic animals."
SENATOR PHILLIPS stated the definition is contained on page 7,
lines 8-15.
Number 139
SENATOR ELLIS asked how the Legislature should address criticism
leveled at cost of the bill at a time when people are demanding a
reduction in the size of state government. SB 238 would take away
a responsibility that has traditionally been under the purview of
local government. SENATOR PHILLIPS repeated his concern about the
cost of shifting the responsibility to the state and felt the
supporters of the measure will need to address that issue. He
added the impetus for SB 238 was the Chistochina incident where 70
dogs were abandoned, the majority of which had to be destroyed
because the legal process for rescuing them was so time-consuming.
He noted a second incident in which seven horses died during
transport to Colorado.
Number 188
SENATOR ADAMS questioned the legitimacy of the animal abuser
registration requirement in light of the fact that the sex offender
registration law is being contested in court. SENATOR PHILLIPS
stated that is the section he hoped the Judiciary Committee would
review.
SENATOR TAYLOR addressed the search warrant provision and stated
although it may be effective, the potential for abuse of the use of
search warrants, when insufficient proof for intrusion of private
property exists, is of great concern. SENATOR TAYLOR stated a Rule
change would be necessary to change the search warrant process,
since under current law a person cannot independently request a
search warrant and then request a peace officer to accompany
him/her to the scene.
Number 241
SENATOR ADAMS asked about the penalty provisions. SENATOR PHILLIPS
explained the first offense is a class A misdemeanor which carries
a 0-1 year prison term with up to a $5,000 fine. The third offense
is a class C felony. He added the bill is meant to draw attention
to incidents of animal cruelty.
The committee delayed further testimony on SB 238 so that SJR 31
could be heard.
Number 267
SJR 31 VOTER APPROVAL:AK STATEHOOD ACT AMENDMENT
SENATOR DRUE PEARCE, sponsor of SJR 31, gave the following history
and synopsis of the legislation. The statehood compact, as entered
into by the people of the State of Alaska, is an agreement that
outlines our relationship with the federal government. The
provisions within the agreement were designed to assure Alaskans
that their rights under statehood are protected. Constituent
concern about the state's role in amending the statehood compact
has been expressed. Currently there is no constitutional guidance
as to the proper process Alaskans should use to amend the compace.
The Legislature passed AS 01.10.110 which allows, by statute, the
Legislature to amend the Compact unilaterally, without bringing any
proposed changes to a vote of the people. This issue has become
very sensitive as the debate about opening ANWR to oil and gas
development continues before Congress. The congressional
legislation would give the State 50 percent of the mineral
royalties. The question as to what royalty share Alaskans will
accept should be decided on its merits, and should be taken to the
people of the state. It would be more appropriate to answer the
fundamental question of how changes should be addressed, by placing
the question on the November ballot. A mechanism needs to be
created by which Alaskans can accept changes to the statehood
compact because other issues will arise in the future. SJR 31 is
offered as a solution to the problem. She materials contained in
committee members' packets which include Charles Cole's article in
the Wall Street Journal regarding the lawsuit filed in 1993 against
the federal government for breach of the Alaska statehood compact,
a legislative update by Attorney General Botelho (#22). She noted
the final brief was filed by the United States in November, and
oral arguments should begin soon.
SENATOR TAYLOR questioned whether the wording of the amendment
would require the legislature to affirmatively act on something
before the people would be asked to ratify that action. He asked
if the question of whether to split the royalties 50-50 or 90-10
would be up to the people themselves, and whether the legislature
would merely be supplying the vehicle for public action. SENATOR
PEARCE replied that providing the vehicle means the Legislature has
to affirmatively pass a resolution to put the question on the
ballot, which is the only way to get to the ballot.
Number 238
SENATOR TAYLOR thought SJR 31 might go beyond that because the
phrase, "A law, enacted by the legislature, giving the approval of
the State to an amendment of the Act...," would mean that the
Legislature has voted affirmatively to approve, in this example,
the 50-50 split. That split would then be ratified by the people.
He suggested having the legislature pose the question of approval
to the people. SENATOR PEARCE felt any legislature that puts a
compact question on the ballot would do so only if the majority of
legislators approve of it, however she would not be opposed to
changing that language. She stated her goal is to get the question
to the people.
Number 343
SENATOR ADAMS disagreed with Senator Taylor's opinion of the
language. Under changes made in 1976 legislation, any legislature
is permitted to take action on an activity that involves the
royalty split of 50-50 versus 90-10. SENATOR ADAMS felt the
committee should review the legal opinion, since the 50-50
provision in the NPRA was not challenged by any Alaskan. He added
that SB 200 provides for legislative action on ANWR, however is
only germane to ANWR.
SENATOR PEARCE commented she is personally uncomfortable placing
the ANWR split before the people on the ballot until Congress has
taken action. SJR 31 was drafted to fit the statutes so that it
follows the same legislative approval process and adds voter
ratification. AS 01.10.110 could be changed at a later date if the
ballot passes.
Number 369
SENATOR TAYLOR felt the question to be the vehicle by which the
change occurs: either through the legislative process or through
the legislature calling upon the people for approval. In the 1976
legislative vote the legislature assumed it had this power unto
itself.
SENATOR ADAMS asked if there are any other amendments being
considered to the statehood compact at this time. No one was aware
of any.
SENATOR TAYLOR asked if the provision under discussion is part of
the Mineral Leasing Act. SENATOR PEARCE replied affirmatively, and
explained the statehood compact provided that all laws of Congress
would effect Alaska as they did other states. Under the Mineral
Leasing Act other western states get 50 percent of the royalties
and an additional 40 percent is placed in a fund under the
Reclamation Act for distribution to states for reclamation
projects.
SENATOR TAYLOR stated it is his sense from the outset of this issue
that the appropriate way to find authority for the type of
amendment being contemplated is to return to the people who gave
their consent to be governed in this fashion originally. There was
a significant debate on the issue of statehood itself and because
the issues debated were of such magnitude it is important they be
revisited. One of those serious provisions is being changed in
Congress unilaterally at this time. The Governor's decision to not
sue on behalf of the people for the violation of the statehood
compact was disturbing since the Governor put himself in the
position of being sued for failing to protect Alaska's
Constitution. Senator Taylor urged the Governor to bring the issue
to the people for decision, and was informed by the Attorney
General of the 1976 legislation giving that power to the
legislature alone. Senator Taylor believes, if challenged, that
argument would fail, on the same basis that the legislature's
attempts to further define and amend the constitutional budget
reserve by legislative action failed before the court because the
legislature does not have the power to redefine a constitutional
amendment. He repeated his concern about the manner in which the
vehicle created in SJR 31 brings a vote to the people. The true
debate is whether the legislature will make the decisions about
amending the statehood compact, or whether those decisions will be
placed before the people that consented to be governed in this way
in the first place.
Number 425
SENATOR PEARCE explained that there is a basic misunderstanding in
Washington, D.C. about the compact lawsuit before the court. The
state has already sued on 90-10. The Governor has said that if
Congress passed 50-50, he would drop that portion of the lawsuit.
To date, the Administration has not done so. She added that
conversely, Alaskans may want to change the compact themselves, at
some point in time. In such a case, Alaska would move first and
then ask Congress to approve the action. She did not foresee the
legislature taking a position on an Act and placing it before the
voters.
SENATOR TAYLOR stated to get it from us to them, some would argue
that the legislature would unilaterally be able to speak for the
people. Conversely, it is conceivable that the state could tell
Congress it wants a 95-5 split. SENATOR PEARCE felt that requiring
both legislative approval and voter ratification would eliminate
that problem. SENATOR TAYLOR stated the committee will have to
take a serious look at the attorney generals' opinions that have
been rendered over the last several years, as well as the 1976 law.
SENATOR PEARCE commented that the actions taken on NPRA are the
weak link in the statehood compact lawsuit, if one exists.
DAVID BATTENBERG, representing the Northern Alaska Environmental
Center in Fairbanks, testified in support of voter ratification of
amendments to the statehood compact, regardless of whether the
amendment pertains to ANWR. He commended Senator Pearce for her
work on SJR 31.
SENATOR TAYLOR announced the committee would hold a worksession on
SJR 31 next week, and hopefully move it from committee at that
time.
SENATOR ADAMS asked that the committee request a legal opinion on
the legislation passed in 1976 in regard to the statehood compact.
SENATOR TAYLOR agreed to do so.
There being no further testimony on SJR 31, the committee
readdressed SB 238 and took teleconference testimony.
Number 459
SB 238 CRUELTY TO ANIMALS
BRETT REID, City of Kenai, stated an alternative bill, HB 386,
includes a provision allowing first and second class boroughs to
establish and enforce cruelty prevention ordinances which he and
other animal control agencies, support. Borough authority is not
in statute and is a loophole that needs to be closed. His concerns
with SB 238 are as follows: include animal control officers in the
definition of "humane enforcement officer" on page 4; delete the
section on consumption of dogs and cats as it might be a cultural
bias issue; and delete the registration section for reasons
mentioned earlier.
BILL GODEK, City of Kenai, agreed with Mr. Reid's testimony. He
supported the rabies vaccination provision to prevent the spread of
rabies, especially in rural Alaska where rabies is endemic in the
wildlife population. He suggested adding a subsection (c) under
Section 3 to allow a person to destroy an animal for health and
safety reasons. He also suggested changing Section 2 (1) to read,
"knowingly inflicts severe physical pain or suffering on an
animal."
Number 534
DIANE ZARFOSS, representing the Alaska SPCA, stated her strong
support for SB 238 as there is no sound legislation to cover
incidents that do occur. The goal of the AK SPCA is to have
statutory definitions of animal cruelty to enable the legal system
to address the issue in a timely manner. Regarding the fiscal
notes, she stated the AK SPCA has, and will, voluntarily assist
peace officers. She thought the legislation would curb animal
abuse, with few cases ending up in court. The AK SPCA is willing
to eliminate the registration provision and to modify the rabies
vaccination provision.
SENATOR ADAMS asked if the AK SPCA, or the animal owners, should
pay for rabies vaccinations, in light of the state's budget
deficit. MS. ZARFOSS explained that rabies vaccinations are
currently made available by the state, to outlying areas. She
would like to see that program continue and permit SPCA volunteers
to become lay vaccinators.
Number 580
JANICE ADAIR, Department of Environmental Conservation, stated DEC
would be responsible for investigating complaints, arranging for
care and shelter of abused animals, administering the rabies
vaccination program, and maintaining an abuser registration system,
which would require abusers to notify the department of changes of
address for a 10 year period under SB 238. She discussed
differences in penalties provided in SB 238 as well as definitional
changes that are problematic. For instance, the definition of
animal in existing law includes any animal but fish, therefore DEC
interprets the bill to mean hitting a moose with a railroad car to
carry a second degree cruelty to animal charge. The bill would
essentially ban mouse traps. Additionally, DEC would be required
to provide annually, to every municipality, rabies vaccines at no
more than the cost of the vaccine. DEC believes animal cruelty is
a shameful activity that needs to be dealt with, but feels the
problem could be more expeditiously addressed at the local level,
by local animal control officers.
Number 561
SENATOR ADAMS noted DEC projected 70 animal cruelty investigations
per year in its fiscal note. MS. ADAIR stated DEC made that
estimate based on the number of complaints currently received, and
added that many neighbors file animal complaints against each
other. No complaints are investigated by DEC.
SENATOR TAYLOR asked who investigates complaints. MS. ADAIR
responded the complaints are investigated by animal control
officers or by the Alaska State Troopers. SENATOR TAYLOR commented
that it appears there had not been a very spirited level of
enforcement in the incidents referred to by Senator Phillips.
JAMES JENNINGS, a furrier from Fairbanks, made the following
comments. SB 238 does not require a veterinarian to make the
diagnostic call on an animal before it is seized, and the agencies
included in the bill do not have veterinarians on staff. When an
animal is seized without a formal diagnosis, lawsuits may
proliferate. Regarding the horse tragedy last fall, the
responsible party is being prosecuted. By opening up search
warrants to private citizens, a Nazi-type society could be
established. Regarding the definition of employees, the bill does
not specify whether a peace officer would be able to designate
power to an entity that is not professionally trained. There are
differing opinions on animal care. Animals are possessions,
therefore it should be the owner's right to eat one, if desired.
Requiring that housing for animals be structurally sound could
require a structural engineer to design or inspect animal
dwellings. His primary concern with SB 238 is the lack of a
requirement for a veterinarian to diagnose an animal, to protect
both the animals' and individual's rights.
Number 507
SENATOR TAYLOR asked if Mr. Jennings believes a greater level of
enforcement is necessary. MR. JENNINGS replied the law is
adequate; the problem lies with getting peace officers to enforce
those laws. By using veterinary diagnoses, most cases will not
reach the court system, as owners will plead out.
BEVERLY NESTER, a pet shop owner, highlighted her concerns with SB
238. Peace officers would not be liable if the animal seized is
harmed. There is no description of who the seized animal would be
given to, nor is there any description of who would be liable if
the animal got a disease or was harmed while in the person's care.
Many exotic animals need very specialized care. Peace officers
are not trained to make vet calls. People requesting warrants
should not be associates as the chance for conspiracy is too great.
Veterinarians should be the only ones to determine an animal's
condition and welfare. She suggested having the Division of
Agriculture oversee this program and determine minimum standards of
space needed for animals. She does not believe scientific research
is an excuse for cruelty to animals. The 72 hour feeding
requirement is not appropriate for some pets, such as snakes.
Number 458
SENATOR ELLIS asked Ms. Nester to elaborate on her conspiracy
comment. MS. NESTER referred to page 3, lines 15-16. She believed
the person applying for the search warrant should not be associated
with the witnesses they produce. As a pet shop owner, and as a
former member of the Fairbanks Borough Animal Control Commission,
there have been acts of conspiracy to put pet shop owners out of
business, or to take animals away from certain people.
SALLY CLAMPITT, representing Alaska Equine Rescue, testified in
support of SB 238. There is an enormous amount of neglect and
cruelty to horses in this state. Horses present a unique problem
in that they cannot be easily transported to a local animal
shelter. Alaska Equine Rescue is not concerned about the rabies
provision, since rabies do not apply to horses, and the group does
not have strong feelings about the registration provision. A
prevailing problem with animal abuse is with obtaining a clear
determination of whether or not abuse exists. Veterinarians differ
in their opinions and there are no uniform standards of care.
Number 413
LIZ DODD, representing the Alaska affiliate of the ACLU, testified
in opposition to SB 238, due to the registration requirement. The
ACLU opposed the sex offender registration legislation on the basis
that it would open the floodgates to registrys. Registrys are a
way of punishing people through public ridicule and admonishment.
The argument that a a sex offender registry would serve public
protection does not hold for this measure. The bill does not
contain any mention of who could access the registry and could lead
to a punishment not fitting the crime, since every employer in the
state could have access to the registry. Regarding designating DEC
as the adminstering agency, DEC has more pressing needs, such as
water cleanup, and is not adequately staffed to run this program.
ACLU does not support cruelty to animals but does not feel SB 238
adequately addresses the problem.
CAROL JENSEN supported the testimony of Mr. Reid and Mr. Godek of
Kenai. This legislation will not take authority away from local
governments because very few communities have organized animal
control forces or laws. Even in Anchorage it is often difficult to
get action on some of the most severe and highly publicized abuses.
SB 238 would stop animal abusers from being protected by the lack
of adequate laws. She suggested changing line 2 on page 5 to read,
"inflicts severe and prolonged suffering on an animal;...."
SENATOR ELLIS asked Ms. Jensen to elaborate on her written
testimony about accepted standards for scientific research. She
replied she was hoping the committee would delete the section that
exempts people who cause pain and suffering to animals in research
labs from prosecution. She noted there are many violations of
minimal standards for animal care and cruelty at research labs
nationwide and other more humane ways of conducting medical
research exist.
Number 318
SENATOR TAYLOR described PSP testing procedures conducted at the
Palmer testing lab to ensure mussels and oysters "farmed" in the
state are safe before they are sold on the commercial market. That
lab would be subject to sanction if that section was removed. MS.
JENSEN responded that other methods of PSP testing exist and should
be reviewed.
SGT. JAMES MCCANN, Alaska State Trooper and President of Alaska
Equine Rescue, testified from Fairbanks. He stated prosecutors and
state troopers see the current statute as vague and too open to
subjective opinion. The state troopers would require a
veterinarian to make a decision about impoundment of an animal,
however local veterinarians called upon to do the job are afraid to
make the decisions as it impacts their reputations and businesses.
He noted the state veterinarian has not testified on this measure,
and he felt it is important to get feedback from the state
veterinarian board. Police officers can seize animals as evidence
in cruelty cases under current statute. Regarding the search
warrant provision in SB 238, anyone could sign an affidavit to get
a search warrant. This procedure could create a chaotic situation
at AST headquarters. The Dept. of Public Safety would like to see
the current method of obtaining a search warrant continue. DPS
does not support the animal abuser registration provision because
of the problems associated with sex offender registry. He added
people will be reluctant to report cruelty cases, and making the
punishment a felony would decrease reporting. Alaska Equine Rescue
believes if a person wants to humanely kill his/her horse and use
the carcass for whatever purpose, the owner should have that right.
SENATOR TAYLOR asked Sgt. MCCANN to send written comments to
committee members.
Number 202
MICHELLE GIRAULT, representing Friends of Pets, testified in
support of SB 238. Friends of Pets believes it is time to take
animal abuse very seriously and believes there is a strong link
between animal abuse, child abuse, and other forms of abuse that
surface later in life. SB 238 tightens up existing laws and
provides prosectors with an important tool.
JOHN GLOTFELTY, a Delta farmer and President of the North Pole
Borough Planning Commission, made the following points. Animal
control officers are not peace officers and should not be given the
same powers. Second class boroughs which do not have law
enforcement powers should not be granted those powers through the
back door. The Division of Agriculture is the appropriate agency
to oversee animal care and should determine standards and solicit
public comment before legislation is passed. He supports the
position taken by the Department of Public Safety, and believes
serious constitutional and legal problems exist with this measure
since the legislature cannot grant powers to a borough without
voter approval.
Number 158
ETHEL CHRISTENSEN. volunteer director of the SPCA, testified in
support of SB 238. The AK SPCA does not intend to create a new
bureaucracy, but rather to continue to be the focal point for
complaints in the state. It needs a list of qualified animal
control or state humane officers. Those officers could work
outside of their jurisdictions but need state certification. She
does not believe it is necessary to have a veterinarian do all
diagnoses. The AK SPCA has been trying to work with the state to
establish a volunteer training program to administer rabies
vaccinations.
JIM ELLISON, a farmer, testified from Fairbanks. He believes the
Division of Agriculture should have oversight of this program,
since it is familiar with animal husbandry. As written, range-run
cattle would be considered abandoned and could be seized by the
state. SB 238 does not take into consideration traditional and
customary farming methods, such as roping, branding, and neutering,
which could be considered cruel treatment. There are no nutrition,
housing and sanitation standards for livestock that fit all of
Alaska.
LARRY PETTY, testifying from Fairbanks, stated the Division of
Agriculture needs to oversee programs associated with farm animals.
ART GRISWOLD, testifying from Fairbanks, agreed with Mr. Petty and
added the Cooperative Extension Service supplies feeding guides for
animals of different types in Alaska.
SENATOR TAYLOR announced the committee would be working with the
sponsor of the legislation and will provide sufficient public
notice before the bill is rescheduled. He adjourned the meeting at
3:05 p.m.
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