Legislature(1995 - 1996)
02/05/1996 01:30 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
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.