Legislature(1997 - 1998)

03/18/1998 01:35 PM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
              SENATE JUDICIARY COMMITTEE                                       
                    March 18, 1998                                             
                      1:35 p.m.                                                
                                                                               
                                                                               
MEMBERS PRESENT                                                                
                                                                               
Senator Robin Taylor, Chairman                                                 
Senator Sean Parnell                                                           
Senator Johnny Ellis                                                           
                                                                               
MEMBERS ABSENT                                                                 
                                                                               
Senator Drue Pearce, Vice-Chairman                                             
Senator Mike Miller                                                            
                                                                               
COMMITTEE CALENDAR                                                             
                                                                               
SENATE BILL NO. 313                                                            
"An Act relating to sponsor certification of initiative petitions;             
relating to sponsor identification during petition circulation;                
relating to the voidability of an initiated law; placing                       
limitations on the compensation that may be paid to sponsors of                
initiative petitions; prohibiting payments to persons who sign or              
refrain from signing initiative petitions; and repealing procedures            
for filing a supplementary initiative petition."                               
                                                                               
     - MOVED SB 313 OUT OF COMMITTEE                                           
                                                                               
SENATE BILL NO. 309                                                            
"An Act relating to the use of force by peace officers and                     
correctional officers."                                                        
                                                                               
     - SB 309 MOVED OUT OF COMMITTEE                                           
                                                                               
SENATE JOINT RESOLUTION NO. 36                                                 
Proposing amendments to the Constitution of the State of Alaska                
relating to redistricting of the legislature, and repealing as                 
obsolete language in the article setting out the apportionment                 
schedule used to elect the members of the first state legislature.             
                                                                               
     - HEARD AND HELD                                                          
                                                                               
PREVIOUS SENATE COMMITTEE ACTION                                               
                                                                               
SB 313 - No previous action to record.                                         
                                                                               
SB 309 - See State Affairs minutes dated 2/26/98 and 3/3/98.                   
                                                                               
SJR 36 - See Judiciary minutes dated 3/11/98.                                  
WITNESS REGISTER                                                               
                                                                               
Senator Jerry Ward                                                             
State Capitol                                                                  
Juneau, Ak 99801-1182                                                          
   POSITION STATEMENT: Sponsor of SB 309                                       
                                                                               
Mr. Craig Johnson                                                              
Staff to Senator Jerry Ward                                                    
State Capitol                                                                  
Juneau, Ak 99801-1182                                                          
   POSITION STATEMENT: Commented on SB 309                                     
                                                                               
Senator Bert Sharp                                                             
State Capitol                                                                  
Juneau, Ak 99801-1182                                                          
   POSITION STATEMENT: Sponsor of SB 313                                       
                                                                               
Mr. Ralph Bennett                                                              
Staff to Senator Robin Taylor                                                  
State Capitol                                                                  
Juneau, Ak 99801-1182                                                          
   POSITION STATEMENT: Commented on SJR 36                                     
                                                                               
Mr. Jim Baldwin                                                                
Department of Law                                                              
PO Box 110300                                                                  
Juneau, Ak 99811-0300                                                          
   POSITION STATEMENT: Commented on SJR 36                                     
                                                                               
                                                                               
ACTION NARRATIVE                                                               
                                                                               
TAPE 98-18, SIDE A                                                             
Number 001                                                                     
                                                                               
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to                
order at 1:40 and called up SB 309 as the first order of business.             
        SB 309 - USE OF NONLETHAL AND DEFENSIVE WEAPONS                        
                                                                               
                                                                               
SENATOR JERRY WARD came forward to present his bill and said the               
legislation was inspired by his son-in-law, who serves on the                  
Anchorage SWAT team and uses a type of non-lethal bean bag                     
projectile, which is a useful tool in certain situations. SENATOR              
WARD allowed that there is an element of danger in using these                 
projectiles and cited a case where a suicidal woman had her arm                
broken accidentally by one of these projectiles.                               
                                                                               
SENATOR WARD said the bill takes away the fear of prosecution in               
cases where specially trained and certified officers use this type             
of force in an appropriate situation. He said those people who use             
this mechanism to protect the public should be protected                       
themselves.                                                                    
                                                                               
SENATOR WARD said that in our litigious time, this kind of                     
protection is necessary to allow properly trained officers to use              
this weapon without fear of reprisal. He again mentioned that the              
bill was brought to his attention by his son-in-law, and noted the             
zero fiscal note that accompanies the bill.                                    
                                                                               
SENATOR PARNELL asked if a recently enacted bill that provided a               
broad scope of immunity for police officers covered this issue.                
SENATOR WARD replied that this issue was overlooked in that bill.              
He mentioned a case in the Lower 48 where the use of non-lethal                
weapons caused an accidental death.                                            
                                                                               
SENATOR PARNELL asked where immunity for peace officers is in                  
existing law and SENATOR WARD responded he was not sure. SENATOR               
PARNELL asked if the proper use of non-lethal weapons, employed in             
the scope of an officer's duty, was covered under this immunity.               
SENATOR WARD replied that these weapons are currently considered               
the equivalent of a shotgun, and this bill just allows the use of              
these types of non-lethal weapons, instead of a shotgun.                       
                                                                               
Number 108                                                                     
                                                                               
MR. CRAIG JOHNSON, staff to SENATOR WARD, interjected that                     
currently, any projectile fired from a weapon capable of lethal                
force is considered lethal force. He clarified that now these non-             
lethal projectiles are treated the same as traditional projectiles             
and this bill would put them in a separate class.                              
                                                                               
SENATOR PARNELL asked if the current statute immunized use of                  
lethal force and MR. JOHNSON said it does not. SENATOR WARD said               
this does not reduce any personal liability for negligent acts,                
only classifies non-lethal projectiles differently. SENATOR PARNELL            
voiced no problem with the concept, but only wanted to be sure they            
weren't repeating something that has already been done.                        
                                                                               
SENATOR ELLIS asked about the phrase "unlikely accidents" in the               
sponsor's statement and asked for clarification. SENATOR WARD                  
replied he was referring to a case like that previously discussed              
which resulted in a broken bone. SENATOR ELLIS asked if the bill               
seeks to grant criminal and civil immunity for officers and SENATOR            
WARD replied that no one can totally escape civil liability but the            
bill seeks to hold officers harmless in cases where they have used             
this force appropriately.                                                      
                                                                               
SENATOR ELLIS asked if the woman in the example has filed suit                 
against anyone and SENATOR WARD replied no, she is in Anchorage                
Psychiatric Institute, where she is getting help.                              
                                                                               
SENATOR ELLIS attempted to clarify SENATOR WARD's intention with               
the bill; asking if he is attempting to prevent charges being                  
brought against an officer for criminal wrongdoing, or if he is                
attempting to prevent a civil suit by a person like the woman with             
the broken bone. SENATOR WARD replied he thinks he is trying to                
accomplish both objectives, and restated that these non-lethal                 
projectiles are a useful tool in some situations and he would not              
want officers to hesitate to employ them. SENATOR ELLIS asked if               
staff could point out which part of the bill applied to criminal               
liability and which part related to civil liability. MR. JOHNSON               
replied that, essentially, the bill only reclassifies the bean  bag            
bullet itself as non-lethal. He explained in the example that was              
used, lethal force was not an option but, technically, that's what             
was used as there is no separate classification for these non-                 
lethal rounds. He said he does not believe the bill would prevent              
civil or criminal penalties. SENATOR WARD interjected that it is a             
classification of the type of bullet, something that was unfamiliar            
to him until recently. He said it is a tool that can save lies.                
                                                                               
SENATOR ELLIS clarified that the bill allows a reclassification of             
a type of ammunition, commenting he had been confused by the                   
reference to a litigious society. SENATOR WARD said he had just                
taken the example one step further and SENATOR ELLIS questoned if,             
in the example, the woman would still have the right to sue and                
SENATOR WARD replied she would.                                                
                                                                               
SENATOR PARNELL remarked that SENATOR ELLIS has raised some good               
points and that the classification of the rounds as non-lethal                 
would have civil implications and would help in the defense of an              
officer who used this force. He stated the bill would not immunize             
from liability, but would aid a defense in a civil action.                     
                                                                               
Number 253                                                                     
                                                                               
SENATOR ELLIS commented that the definition of non-lethal refers to            
things commonly used now, but does not cover the techniques that               
may soon be developed in this rapidly changing high-tech field. He             
suggested that a more expansive definition may help to keep the                
bill from rapidly becoming out of date. SENATOR WARD agreed, and               
said they had used current techniques for the definition.                      
                                                                               
SENATOR ELLIS inquired if SENATOR WARD was familiar with the level             
at which an order to shoot might be given, asking who has the                  
ultimate responsibility. SENATOR WARD replied that it was whoever              
pulls the trigger, saying an illegal order shall not be followed.              
SENATOR WARD continued that there was a chain of command and an                
officer in charge of a team might give that type of order, but                 
would also have the authority to do it themselves. CHAIRMAN TAYLOR             
interjected that, from a tort perspective, the officer who                     
authorized the shot (provided it was done appropriately, following             
established procedures) would be included in the scope of the                  
liability, along with the entire police department and city, etc.              
CHAIRMAN TAYLOR concluded that under the doctrine of respondeat                
superior, if the officer was acting within the scope of his or her             
duties, they would be personally indemnified and the city or the               
governing authority would be liable for any judgement. However, if             
the officer was ordered not to shoot, and did so anyway, he or she             
would be personally responsible and the governing authority would              
likely be absolved from any judgement.                                         
                                                                               
SENATOR WARD said the officers who approached him are under the                
impression that they are personally responsible in these                       
situations, regardless of their orders.                                        
                                                                               
SENATOR PARNELL asked if there was further public testimony on the             
bill. CHAIRMAN TAYLOR, seeing none, accepted a motion from SENATOR             
PARNELL to move the bill from committee with individual                        
recommendations, and without objection, it was so ordered.                     
                 SB 313 - PETITION CIRCULATION                                 
                                                                               
SENATOR BERT SHARP came forward to present SB 313, his bill                    
relating to petition circulation. SENATOR SHARP stated that it is              
often assumed that people canvassing for signatures on an                      
initiative petition are volunteers. SENATOR SHARP said this is                 
often true, but it is more likely that these people are signature              
"bounty hunters," paid by the sponsor of the initiative. SENATOR               
SHARP noted that all other states have laws against this and said              
his bill, in an effort to bring the initiative process back to a               
more grassroots level, requires petition circulators to display                
identification (their name and voter registration number) during               
signature solicitation. SB 313 also prohibits payment per signature            
by the sponsor. Payment for canvassers would still be allowed by               
any other method. SENATOR SHARP said the bill further prohibits                
payment for a signature on a petition, which is not currently                  
illegal and eliminates the 30-day extension period currently                   
allowed. SENATOR SHARP summed it up by saying, "you either got 'em             
or you don't."                                                                 
                                                                               
Number 400                                                                     
                                                                               
SENATOR ELLIS asked about an Anchorage Daily News article that                 
encouraged the Legislature to increase initiative campaign                     
reporting requirements, which currently do not require disclosure              
of funds unless they are rolled forward into an effort to actually             
pass the initiative once it appears on the ballot. He asked SENATOR            
SHARP if he had given any thought to including that in this bill               
and SENATOR SHARP replied he had not.                                          
                                                                               
SENATOR SHARP said he was reticent to force additional reporting on            
anyone, but did not wish to say he would not embrace it. He                    
commented that funding sources can be oblique.                                 
                                                                               
SENATOR ELLIS asked for more detailed comments on the elimination              
of the 30 day extension period and its possible implications on the            
right of people to petition in a democratic government. SENATOR                
SHARP replied that, with more and more initiatives, the Legislature            
is given less and less time to react with legislation to the                   
initiatives. SENATOR SHARP said the time frame for collecting the              
necessary signatures is quite liberal and any extension of that                
time focuses on the time limit itself, and not on the merits of the            
initiative. SENATOR ELLIS asked if this concern  couldn't be better            
addressed by some sort of deadline that required the petition                  
process to end by a certain date. SENATOR SHARP responded by saying            
this would be difficult for the Division of Elections and restated             
his point that the time for gathering the necessary signatures for             
a successful petition is ample, and the extension merely begs for              
a last minute infusion of money into a campaign. He said there must            
be a cut off at which point it is determined if "you got 'em or you            
don't."                                                                        
                                                                               
SENATOR ELLIS asked what the public policy reason for this concern             
was and SENATOR SHARP replied that there is plenty of time to get              
the signatures, if the effort or the interest of the people is                 
lacking, so be it. He thinks it goes against public policy in the              
initiative process to allow the refocusing of monetary resources               
after the initial effort.                                                      
                                                                               
SENATOR ELLIS remarked that the reason why people fall short of the            
required number of signatures is that people misrepresent                      
themselves as registered voters and are later disqualified by the              
Division of Elections. SENATOR ELLIS said he has no sympathy for               
the signature bounty hunters, but commented that signature                     
gatherers have no good way to verify if a person is indeed a                   
registered voter. He said the extension has always been a failsafe             
method to ensure that all the time and effort was not wasted due to            
disqualification of those people who misrepresented themselves.                
SENATOR PARNELL noted that another section of the bill is related              
to this. He pointed out that on page 2 a new section is being added            
that places more of the burden on the petition sponsors to ensure              
those signatures they turn in come from legitimate, registered                 
voters. SENATOR PARNELL said this verification can be done through             
public and private databases, thus reducing the burden on the                  
Division of Elections. SENATOR ELLIS asked if this wouldn't just               
encourage canvassers to come into the Division of Elections and                
check signatures every week or so. He asked if they would have the             
right to do this, suggesting that not everyone has computers and               
database access. SENATOR PARNELL said this would still result in               
much less work for the Division of Elections at the end of the                 
process.                                                                       
                                                                               
SENATOR ELLIS asked, since the intent of the bill was to identify              
the group collecting signatures, if the bill includes anything                 
prohibiting "petition groups." SENATOR SHARP replied that there was            
no restriction being proposed that requires any additional                     
identification other than what is currently required by the                    
Division of Elections. SENATOR ELLIS replied he thought the bill               
increased reporting requirements. SENATOR SHARP said only on the               
person actually collecting the signatures. He also said, even                  
though under current law signature gatherers must be registered                
voters, he has had calls complaining about canvassers who refuse to            
identify themselves when asked.                                                
                                                                               
SENATOR ELLIS clarified that the name tag would contain the                    
canvasser's name and voter number, not the organization they                   
represent. SENATOR SHARP agreed.                                               
                                                                               
SENATOR ELLIS asked if it is currently illegal to use canvassers               
shipped into the state and SENATOR SHARP said canvassers must be               
registered voters, requiring a 30 day residency.                               
                                                                               
CHAIRMAN TAYLOR asked if there was further testimony on the bill,              
there was none.                                                                
                                                                               
SENATOR PARNELL moved SB 313 out of committee with individual                  
recommendations. Without objection, it was so ordered.                         
         SJR 36 - REAPPORTIONMENT BOARD & REDISTRICTING                        
                                                                               
CHAIRMAN TAYLOR indicated to the committee that they had a copy of             
a new committee substitute on their desks that brought the draft               
into line with the version in the House finance committee. It                  
establishes a five-member redistricting board appointed by the                 
Chief Justice of the Supreme Court, with one member from each                  
judicial district. He said due to the controversy surrounding                  
redistricting, a "Christ-like" figure has to be found to appease               
people. He said it is always difficult to find these people. He                
noted that the work draft was marked "GLOVER/B" version.                       
                                                                               
SENATOR PARNELL moved the adoption of the GLOVER/B version, dated              
3/12/98, as the working vehicle for the committee. Without                     
objection, it was so ordered.                                                  
                                                                               
MR. JIM BALDWIN, representing the Department of Law, came forward              
and noted that he had previously testified on the bill, but spoke              
to a different version and would like to make a few additional                 
comments. CHAIRMAN TAYLOR indicated he should do so.                           
                                                                               
MR. BALDWIN said the bill is similar to HJR 44, with the exception             
of one provision that he believes was excluded due to his testimony            
in the House. MR. BALDWIN pointed out a few problematic provisions             
still existing in the bill. Page three, lines 2-3 state, "the Chief            
Justice shall appoint a redistricting board, subject to the                    
provisions of this section and as may be provided by law"; MR.                 
BALDWIN said this would impose additional criteria for the                     
appointment of redistricting board members. He mentioned that the              
House attempted to come up with an unassailable process which did              
not involve the Governor. He commented this provision might allow              
partisan politics to creep back into the process, if criteria                  
specified included political parties or other similar                          
considerations.                                                                
                                                                               
MR. BALDWIN remarked that the Attorney General has traditionally               
provided legal counsel for the reapportionment board, and he                   
assumes if the board was moved to another branch that the court                
system would provide for that. He mentioned the department has                 
provided a fiscal note to the House version of the bill and they               
feel it may be an involved process to preclear the change. They                
anticipate that some interest may come forward to challenge                    
preclearance, so the fiscal note takes into account the possibility            
of consulting experts to help assemble the preclearance                        
application. He indicated the fiscal note on the House side was                
approximately $60,000.                                                         
                                                                               
MR. BALDWIN pointed out that a provision beginning on page three,              
dealing with the schedule of the board, would effectively reduce               
the time line by 60 days. Currently, the board has 90 days to                  
formulate a plan and then transmit the plan to the Governor, the               
Governor then has 90 days to review the plan and present a final               
plan, and MR. BALDWIN indicated all of this time is necessary to               
accommodate public comment and make adjustments.                               
                                                                               
MR. BALDWIN concluded by saying he had no further comments, other              
than those he had made during his previous testimony.                          
                                                                               
CHAIRMAN TAYLOR asked who the fifth member would be since Alaska               
only has four judicial districts. MR. BALDWIN replied the fifth                
member would be decided by the four appointed members.                         
                                                                               
CHAIRMAN TAYLOR asked if there was a challenge that could be made              
to this bill under the "one man, one vote" rule, since it                      
apportions the board that will reapportion the state based on                  
judicial districts and might diminish the influence of major                   
population centers in comparison to rural areas.                               
                                                                               
TAPE 98-18, SIDE B                                                             
Number 001                                                                     
                                                                               
MR. BALDWIN said he had not considered that, but believed that                 
since the current practice in the Constitution is obsolete (relying            
on geography rather than population), apportionment is not required            
to adhere to the letter of the Constitution, only to attempt to                
obtain some geographic balance and distribution. He said this is an            
interesting issue, one he hadn't considered. MR. BALDWIN noted that            
the board itself has not been apportioned in the past and CHAIRMAN             
TAYLOR agreed he'd never seen it done either.                                  
                                                                               
MR. RALPH BENNETT said that if there was a  provision missing from             
the bill he was not aware of it. MR. BALDWIN restated that he                  
believes the provision was purposefully deleted.                               
                                                                               
SENATOR PARNELL made a motion to move CSSJR 36 from committee with             
individual recommendations. SENATOR ELLIS objected and CHAIRMAN                
TAYLOR indicated the bill would be held in committee.                          
                                                                               
With no further business to come before the committee, they were               
adjourned at 2:25 p.m.                                                         
                                                                               
                                                                               

Document Name Date/Time Subjects