Legislature(2001 - 2002)

03/25/2002 01:40 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                    ALASKA STATE LEGISLATURE                                                                                    
                   SENATE JUDICIARY COMMITTEE                                                                                 
                         March 25, 2002                                                                                         
                            1:40 p.m.                                                                                           
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Senator Robin Taylor, Chair                                                                                                     
Senator John Cowdery                                                                                                            
Senator Gene Therriault                                                                                                         
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
Senator Dave Donley, Vice Chair                                                                                                 
Senator Johnny Ellis                                                                                                            
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
CS FOR SENATE BILL NO. 324(L&C)                                                                                                 
"An  Act providing  that a  utility or  electric operating  entity                                                              
owned  and  operated  by  a political  subdivision  of  the  state                                                              
competing  directly  with  a  telecommunications  utility  is  not                                                              
subject to the Alaska Public Utilities Regulatory Act."                                                                         
     MOVED CSSB 324(L&C) OUT OF COMMITTEE                                                                                       
                                                                                                                                
SENATE JOINT RESOLUTION NO. 33                                                                                                  
Proposing an amendment to the Constitution  of the State of Alaska                                                              
relating to  limiting the rate of  state income and sales  and use                                                              
taxes.                                                                                                                          
     MOVED CSSJR 33(JUD) OUT OF COMMITTEE                                                                                       
                                                                                                                                
CS FOR HOUSE BILL NO. 196(JUD)                                                                                                  
"An Act  establishing a  right of action  for a legal  separation;                                                              
requiring  a report  about legal  separations;  and amending  Rule                                                              
42(a), Alaska Rules of Civil Procedure."                                                                                        
     MOVED CSHB 196(JUD) OUT OF COMMITTEE                                                                                       
                                                                                                                                
SENATE BILL NO. 344                                                                                                             
"An  Act relating  to  an  aggravating  factor at  sentencing  for                                                              
terrorism."                                                                                                                     
     MOVED SB 344 OUT OF COMMITTEE                                                                                              
                                                                                                                                
CS FOR HOUSE BILL NO. 297(JUD)                                                                                                  
"An Act related to aggravating factors at sentencing."                                                                          
     MOVED SCS CSHB 197(JUD) OUT OF COMMITTEE                                                                                   
                                                                                                                                
PREVIOUS SENATE COMMITTEE ACTION                                                                                              
                                                                                                                                
SB 324 - See Labor and Commerce minutes dated 3/5/02 and                                                                        
Judiciary minutes dated 3/20/02.                                                                                                
                                                                                                                                
SJR 33 - See Judiciary minutes dated 3/18/02.                                                                                   
                                                                                                                                
HB 196 - No previous action to record.                                                                                          
                                                                                                                                
SB 344 - No previous action to record.                                                                                          
                                                                                                                                
HB 297 - No previous action to record.                                                                                          
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
Senator Alan Austerman                                                                                                          
Alaska State Capitol                                                                                                            
Juneau, AK  99801-1182                                                                                                          
POSITION STATEMENT: Sponsor of SJR 33                                                                                         
                                                                                                                                
Mr. Larry Persily                                                                                                               
Department of Revenue                                                                                                           
PO Box 110400                                                                                                                   
Juneau, AK  99811-0400                                                                                                          
POSITION STATEMENT:  Answered questions pertaining to SJR 33                                                                  
                                                                                                                                
Representative Fred Dyson                                                                                                       
Alaska State Capitol                                                                                                            
Juneau, AK  99801-1182                                                                                                          
POSITION STATEMENT:  Sponsor of HB 196                                                                                        
                                                                                                                                
Mr. Dave Golter                                                                                                                 
PO Box E. Mayflower Lane, Suite 4                                                                                               
Wasilla, AK                                                                                                                     
POSITION STATEMENT:  Supports HB 196                                                                                          
                                                                                                                                
Ms. Jennifer Rudinger                                                                                                           
Alaska Civil Liberties Union                                                                                                    
No address provided                                                                                                             
POSITION STATEMENT:  Opposed SB 344                                                                                           
                                                                                                                                
Representative Kevin Meyer                                                                                                      
Alaska State Capitol                                                                                                            
Juneau, AK  99801-1182                                                                                                          
POSITION STATEMENT:  Sponsor of HB 297                                                                                        
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
TAPE 02-11, SIDE A                                                                                                            
Number 001                                                                                                                      
                                                                                                                                
CHAIRMAN  ROBIN  TAYLOR  called  the  Senate  Judiciary  Committee                                                            
meeting to  order at  1:40 p.m. Senators  Therriault, Cowdery  and                                                              
Chair Taylor were present.                                                                                                      
                                                                                                                                
          SB 324-MUNICIPAL PUB.UTIL.COMPETING W/TELECOM                                                                     
                                                                                                                                
CHAIRMAN  TAYLOR announced  that he  would bring  up SB 324  under                                                              
Bills Previously Heard. The committee  heard and held that bill at                                                              
a previous meeting because he was  not present. He noted SB 324 is                                                              
a simple matter and he would like  to move it out. It provides one                                                              
community,  Ketchikan,  from  RCA   regulatory  involvement  if  a                                                              
competing  private utility,  which  is not  regulated under  state                                                              
law, were to enter the field.                                                                                                   
                                                                                                                                
SENATOR  COWDERY  moved  SB 324  from  committee  with  individual                                                              
recommendations.                                                                                                                
                                                                                                                                
SENATOR THERRIAULT  objected to ask  if SB 324 will  still require                                                              
regulation by a local utility board.                                                                                            
                                                                                                                                
CHAIRMAN TAYLOR  said it  would and, in  fact, the local  board is                                                              
appointed  by the  city council  but the  city council  sits as  a                                                              
supervisory board over the utility board.                                                                                       
                                                                                                                                
SENATOR  COWDERY  said  this  situation  is  similar  to  the  ATU                                                              
situation in Anchorage.                                                                                                         
                                                                                                                                
CHAIRMAN TAYLOR said that is correct.  He then announced that with                                                              
no further  objection  to moving  SB 324 from  committee with  its                                                              
zero fiscal note, the motion carried.                                                                                           
                                                                                                                                
            SJR 33-CONSTITUTIONAL AMENDMENT: TAX CAP                                                                        
                                                                                                                                
CHAIRMAN TAYLOR  noted the  committee received  a letter  from the                                                              
Commissioner of the Department of  Revenue (DOR) that answers some                                                              
of the  questions asked  at the  last meeting.  He stated  that he                                                              
prepared a  sponsor substitute  (SS) for SJR  33. The  drafter had                                                              
sent along with it a resolution that  provides for a title change.                                                              
He questioned why another resolution  is necessary since SJR 33 is                                                              
a Senate  resolution and, in addition,  he has not seen  any title                                                              
change in the sponsor substitute.                                                                                               
                                                                                                                                
SENATOR  AUSTERMAN also  expressed confusion  as to  why a  second                                                              
resolution accompanied  SJR 33 and noted  that he is not  aware of                                                              
any title change.                                                                                                               
                                                                                                                                
CHAIRMAN  TAYLOR  and SENATOR  AUSTERMAN  then clarified  the  new                                                              
version  is a  committee  substitute,  not a  sponsor  substitute.                                                              
Senator  Austerman prepared  a  sponsor substitute,  but  Chairman                                                              
Taylor  changed  it   to  a  committee  substitute   so  that  the                                                              
resolution would not have to be re-read on the Senate floor.                                                                    
                                                                                                                                
SENATOR COWDERY  asked if an  accompanying resolution for  a title                                                              
change would be required if the original  resolution came from the                                                              
House.                                                                                                                          
                                                                                                                                
CHAIRMAN TAYLOR said it would. He  then said SJR 33 was introduced                                                              
on February 4,  2002 and was referred to the  Senate Judiciary and                                                              
Finance Committees. He asked Senator  Austerman if SJR 33 received                                                              
an additional referral.                                                                                                         
                                                                                                                                
SENATOR AUSTERMAN  said it did not  and noted that he  submitted a                                                              
sponsor substitute to the Senate Judiciary Committee in error.                                                                  
                                                                                                                                
CHAIRMAN TAYLOR clarified  that the version before  members is not                                                              
a  committee  substitute  for  a   sponsor  substitute,  it  is  a                                                              
committee substitute to the original resolution.                                                                                
                                                                                                                                
SENATOR COWDERY moved to adopt the  proposed committee substitute,                                                              
Version F, as the work draft before the committee.                                                                              
                                                                                                                                
CHAIRMAN TAYLOR  announced that without  objection, Version  F was                                                              
before  the committee.  He  then  moved to  delete  from the  bill                                                              
heading the words "FOR SS" so that the title of the bill reads:                                                               
                                                                                                                                
            CS FOR SENATE JOINT RESOLUTION NO.33(JUD)                                                                         
                                                                                                                              
There being no objection, the motion carried.                                                                                   
                                                                                                                                
SENATOR AUSTERMAN informed members  that the only change in the CS                                                              
is that the word "retail" was added  on page 1, line 12 before the                                                              
words "sales tax."                                                                                                              
                                                                                                                                
CHAIRMAN TAYLOR  noted that  change was made  to clarify  that the                                                              
provision does not  apply to wholesale sales. He  pointed out that                                                              
Mr.  Persily   answered  the  committee's  questions   about  what                                                              
adjusted gross  income means, about  what the percentage  would be                                                              
and  the  amount  that percentage  would  generate.  He  expressed                                                              
concern that  the limiting factor  of five percent of  the federal                                                              
adjusted  gross  income  is  hardly a  limit.  That  amount  would                                                              
probably generate about $550 to $600 million.                                                                                   
                                                                                                                                
MR.  LARRY PERSILY,  Deputy Commissioner,  Department of  Revenue,                                                              
explained  that Chairman  Taylor's  estimate is  correct and  that                                                              
amount would go a long way in solving Alaska's fiscal problems.                                                                 
                                                                                                                                
SENATOR COWDERY  noted that Mr.  Persily defined  "federal taxable                                                              
income" as income  remaining after itemizing deductions.  He asked                                                              
if earnings  from another  state would  be considered an  itemized                                                              
deduction. He said  that if an individual had  income derived from                                                              
another state with an income tax,  the individual might be able to                                                              
deduct them, but  if the income was derived in a  state without an                                                              
income tax, those  wages would have to be included  in the federal                                                              
return.                                                                                                                         
                                                                                                                                
MR. PERSILY  clarified that federal  taxable income  would include                                                              
income from all  sources. If Alaska had an income  tax and part of                                                              
one's  income was  earned  in Washington,  which  has no  personal                                                              
income  tax, Alaska  could  impose an  income  tax on  all of  the                                                              
income  earned  in  Washington  state  because  that  individual's                                                              
domicile is  in Alaska. If Washington  had an income tax  and one-                                                              
third of  the individual's earnings  were from Washington,  Alaska                                                              
could  tax two-thirds.  He stated  an individual  would never  pay                                                              
taxes to two states on the same income.                                                                                         
                                                                                                                                
SENATOR  COWDERY  pointed out  Alaska  would  draw in  the  income                                                              
derived from other states with no income tax.                                                                                   
                                                                                                                                
MR. PERSILY  said the state could  benefit by taxing  the earnings                                                              
of  its  residents  where  those earnings  are  earned  in  states                                                              
without a personal income tax.                                                                                                  
                                                                                                                                
SENATOR AUSTERMAN  said that works  both ways as  Oregon residents                                                              
who earn their wages in Alaska are taxed by Oregon.                                                                             
                                                                                                                                
SENATOR COWDERY said  that is the point he has a  problem with. He                                                              
said he believes  an Alaska income  tax should be based  on Alaska                                                              
income.                                                                                                                         
                                                                                                                                
SENATOR  THERRIAULT  referred  to  the  limit  of  5  percent  and                                                              
questioned whether Alaskans  would see it as a cap  since it is at                                                              
the upper limit.  He asked Senator Austerman if  he feels strongly                                                              
about the five percent.                                                                                                         
                                                                                                                                
SENATOR  AUSTERMAN said  his only  thought is  if the  legislature                                                              
asks the public  to vote on a constitutional amendment,  it should                                                              
allow the  public the  latitude of  future growth.  He said  if it                                                              
reads two  or three  percent, a future  legislature will  probably                                                              
have to go back  to the public for another vote.  He noted that he                                                              
anticipates that Alaska  will have a broad based  tax structure in                                                              
the not-too-distant  future  but he  does not  believe it will  be                                                              
just  an  income  tax  and sales  tax.  He  also  anticipates  the                                                              
permanent  fund  will be  part  of the  solution  so  he does  not                                                              
believe  the five  percent cap  will be  reached for  a very  long                                                              
time. He  maintained that  is a policy  call the legislature  will                                                              
have to make.                                                                                                                   
                                                                                                                                
CHAIRMAN TAYLOR  said the overall  policy call reaches  far beyond                                                              
the  numbers.   His  concern   is  that   today,  under   Alaska's                                                              
Constitution, people  are not afforded  an opportunity to  vote on                                                              
the  budget  or  to  vote  on  the  level  of  taxation  that  the                                                              
legislature chooses to impose. He  thought it would be a good idea                                                              
to have  a cap or  limit on taxation,  but expressed  concern that                                                              
placing a  cap in  the Constitution  creates a significant  policy                                                              
shift. The Constitution was originally  designed so that questions                                                              
of  revenue  would  be  left  up   to  the  legislature  and  that                                                              
initiative   petitions  could   not  be   brought  to  amend   the                                                              
Constitution.  In addition, one  of the  things the framers  truly                                                              
isolated  at the state  and municipal  levels  is that the  public                                                              
does  not have  a  vote on  that.  By putting  any  number in  the                                                              
Constitution, that  number can only  be changed by a  public vote.                                                              
He said he believes that is a major  shift within the framework of                                                              
Alaska's Constitution.                                                                                                          
                                                                                                                                
SENATOR COWDERY  noted the title does  not say that an  income and                                                              
sales tax  will be implemented,  it only  says if the  legislature                                                              
decides to  impose one, it must be  limited to five percent  so it                                                              
is moot until a tax is in place.                                                                                                
                                                                                                                                
SENATOR  AUSTERMAN said  that is  correct and  stated, "The  whole                                                              
issue,  and  I believe  the  courts  have  upheld also,  like  you                                                              
indicated, the initiative  process, they cannot set  the budget by                                                              
initiative  process but this  is not  necessarily setting  a rate,                                                              
but  it's setting  the  maximum at  this point  in  time that  the                                                              
public would feel comfortable with."                                                                                            
                                                                                                                                
CHAIRMAN  TAYLOR asked  Senator Therriault  his thoughts  on three                                                              
percent, which would generate almost $400 million.                                                                              
                                                                                                                                
SENATOR THERRIAULT said  he prefers 2.5 percent. He  then moved to                                                              
replace the word "five" on page 1, line 10 with "2.5."                                                                          
                                                                                                                                
CHAIRMAN TAYLOR  asked Senator Therriault  if it is his  intent to                                                              
make the same change on lines 7 and 12.                                                                                         
                                                                                                                                
SENATOR THERRIAULT clarified that  he would take Chairman Taylor's                                                              
suggestion  to make the  same change  on line 7  to be  a friendly                                                              
amendment to his  amendment, but it is not his intent  to make the                                                              
same change on line 12 as that applies to a sales tax.                                                                          
                                                                                                                                
CHAIRMAN  TAYLOR asked  if  there was  objection  to adopting  the                                                              
amendment and  then objected for  the purpose of  allowing Senator                                                              
Austerman time to review the amendment.                                                                                         
                                                                                                                                
SENATOR AUSTERMAN thanked Chairman Taylor.                                                                                      
                                                                                                                                
CHAIRMAN  TAYLOR announced  that  with no  further objection,  the                                                              
amendment was adopted.                                                                                                          
                                                                                                                                
CHAIRMAN TAYLOR moved  to replace "five" on page  1, line 12, with                                                              
2.5 to limit the percent of sales  tax that could be levied by the                                                              
state  to  2.5.  He  noted  that  without  objection,  the  motion                                                              
carried.                                                                                                                        
                                                                                                                                
There  being no  further testimony,  SENATOR  COWDERY moved  CSSJR                                                              
33(JUD)    as    amended   from    committee    with    individual                                                              
recommendations.                                                                                                                
                                                                                                                                
CHAIRMAN  TAYLOR  announced  that without  objection,  the  motion                                                              
carried.                                                                                                                        
                                                                                                                                
The committee took up HB 196.                                                                                                   
                                                                                                                                
           HB 196-RIGHT OF ACTION FOR LEGAL SEPARATION                                                                      
                                                                                                                                
REPRESENTATIVE  FRED DYSON,  sponsor of  HB 196, reminded  members                                                              
the committee  had a  hearing on  this legislation  last year.  He                                                              
explained  that HB  196  adds a  new category  in  the process  of                                                              
modifying the  marriage status.  Currently, a  couple can  annul a                                                              
marriage or  get a divorce.  17 other  states and the  District of                                                              
Columbia  have  adopted  an  interim  status,  which  is  a  legal                                                              
separation.  It allows  the  couple  to get  a  court decision  on                                                              
separating their legal affairs and  establishing custody and child                                                              
support payments  on either  an interim or  final basis.  He noted                                                              
for people  on his side  of the political-philosophical  spectrum,                                                              
this  issue often  arises  when a  marriage  is  troubled and  the                                                              
conduct of  one of the members  jeopardizes the family  estate but                                                              
one partner  does not believe in  divorce. He explained  this bill                                                              
will provide an interim status in those situations.                                                                             
                                                                                                                                
REPRESENTATIVE DYSON  said, to his understanding,  in other states                                                              
that have  provided for legal  separation, one percent  of couples                                                              
who file for  divorce choose this option. Alaska  courts see about                                                              
3500  divorce actions  per year  so one  might deduce  that 35  of                                                              
those couples might  choose legal separation instead.  He said the                                                              
answer to  the question  of whether the  courts are already  doing                                                              
this is  yes. Judges have the  prerogative of granting  a separate                                                              
maintenance agreement  but if HB  196 is enacted, the  courts will                                                              
have  to consider  the option  of legal  separation. In  addition,                                                              
passage of HB 196 will make the public more aware of the option.                                                                
                                                                                                                                
CHAIRMAN TAYLOR  asked what  would happen if  one partner  wants a                                                              
legal separation but the other wants a divorce.                                                                                 
                                                                                                                                
REPRESENTATIVE  DYSON said,  to his understanding,  the judge  can                                                              
answer  and  rule in  favor  of  either  petitioner and  have  the                                                              
parties enter  into an interim  agreement for property  settlement                                                              
protection  while  the  divorce   is  underway.  However,  nothing                                                              
precludes either partner for filing for a divorce.                                                                              
                                                                                                                                
SENATOR  THERRIAULT  asked  if  HB 196  is  identical  to  Senator                                                              
Wilken's legislation.                                                                                                           
                                                                                                                                
REPRESENTATIVE DYSON said it is.                                                                                                
                                                                                                                                
CHAIRMAN TAYLOR  said he consulted with three  different attorneys                                                              
in  the state  whose  practices consist  of  a lot  of family  law                                                              
cases. He  said one, a gentleman  in Fairbanks who  also contacted                                                              
Senator Wilken,  felt this legislation  will provide  an important                                                              
clarification in  the law. The other  two he spoke with  felt this                                                              
legislation is  unnecessary because sufficient legal  basis exists                                                              
today  for a  court  to provide  all  of the  same  authorizations                                                              
provided in HB 196. He said in weighing  his decision, he does not                                                              
believe this bill  does a disservice to the existing  law and that                                                              
codifying what professionals  in the field know  exists today will                                                              
provide  others   with  the  knowledge  that  another   option  is                                                              
available. He commented that his  18 years in the legislature have                                                              
taught  him   to  be   cautious  about   the  law  of   unintended                                                              
consequences.  He fears, in  passing this  type of legislation,  a                                                              
legal separation  could  be granted  and years  might go by  while                                                              
both  parties lead  totally separate  lives. One  person might  be                                                              
living  in  another  state  where  common  law  relationships  are                                                              
recognized,  so the estate  could become  convoluted. He  believes                                                              
there  is some  legal clarity  with  divorce and  would feel  more                                                              
comfortable with  the idea of legal  separation if there  was some                                                              
time limitation  attached  to it  but his concern  is not  serious                                                              
enough  to stand  in  the way  of the  legislation.  He then  took                                                              
public testimony.                                                                                                               
                                                                                                                                
MR. DAVE  GOLTER, a  private practitioner  from Wasilla,  informed                                                              
members  he has  practiced family  law  in the  Mat-Su Valley  for                                                              
about 17 years.  He stated support for HB 196  because he believes                                                              
clarification of the law is necessary  for several reasons. First,                                                              
there are statutes  that authorize a  judge to do much  of what is                                                              
accomplished  in  HB 196,  but  those statutory  provisions  leave                                                              
questions  about how far  a judge  can go  and on what  authority.                                                              
Questions arise  in the judicial  branch as well. He  must counsel                                                              
his clients that  attorneys have not had a lot  of experience with                                                              
the judges on how they are going  to interpret these laws and rule                                                              
on these  issues.  He has found  that  most of the  people he  has                                                              
discussed  this option  with are  not interested  in being  a test                                                              
case.                                                                                                                           
                                                                                                                                
MR. GOLTER  said his  interpretation of existing  law is  that the                                                              
courts  have the right  to decide  issues of  custody and  support                                                              
outside of the  context of the divorce. However,  he does not know                                                              
if  he  could convince  a  judge  to divide  up  marital  property                                                              
outside  of the  context  of divorce  and  what the  ramifications                                                              
would be if the judge did so and  a divorce was granted later.  He                                                              
repeated that  for those  reasons, it would  be helpful to  have a                                                              
reference  in the statutes  to legal  separation.  He said  he has                                                              
received a call  from one couple that wants to know  the status of                                                              
this bill.                                                                                                                      
                                                                                                                                
CHAIRMAN TAYLOR  asked Mr. Golter  to comment on his  concern that                                                              
the bill contains no time limitation for a legal separation.                                                                    
                                                                                                                                
MR. GOLTER said  one thought that came to mind is  that he has had                                                              
experiences  with couples who  go about  their separate  lives but                                                              
don't get a divorce  until a legal complication arises  so he does                                                              
not  know that  it is  extremely  uncommon for  couples to  handle                                                              
their marital affairs that way.                                                                                                 
                                                                                                                                
CHAIRMAN  TAYLOR asked  how after-born children  would be  treated                                                              
and whether they would become children of the marriage.                                                                         
                                                                                                                                
MR.  GOLTER said  he thinks  everyone  is aware  that parents  are                                                              
sometimes not  married and, in his  experience, there is  not much                                                              
difference in  the way  the custody laws  apply to married  versus                                                              
unmarried parents. The same standards apply.                                                                                    
                                                                                                                                
CHAIRMAN TAYLOR said  if a married couple separates  and the woman                                                              
gives  birth to  a child  who is  not  of her  husband, under  the                                                              
bastardy laws  of the State of  Alaska, that child is  presumed to                                                              
be a child  of that marriage.  Denial of paternity will  require a                                                              
lengthy court proceeding.  He noted if the mother  was on welfare,                                                              
state agencies  are then involved  and could garnish the  wages of                                                              
the husband for child support purposes.                                                                                         
                                                                                                                                
MR. GOLTER  said that is correct  and that there is  a presumption                                                              
but it is a rebuttable presumption.  He said he believes paternity                                                              
actions are done voluntarily but  if not, courts are very quick to                                                              
order one  and the  question is  usually resolved  right away.  He                                                              
said  he agrees  with  Chairman Taylor  that  it  could present  a                                                              
substantial  problem for  a separated  husband but  that would  be                                                              
something  he could  take into account  when deciding  to allow  a                                                              
separation  to continue.  He noted  that  if one  spouse does  not                                                              
agree, he or she could move for divorce.                                                                                        
                                                                                                                                
CHAIRMAN TAYLOR replied:                                                                                                        
                                                                                                                                
     I understand that. I'm just  trying to think of examples                                                                   
     of the  concerns that I  have. In some circumstances  it                                                                   
     may very well be that neither  party goes on welfare. No                                                                   
     state  or federal  agency gets  involved but  additional                                                                   
     child or children  are born. They're considered  born of                                                                   
     that  marriage  and,  as a  consequence,  dad  now  dies                                                                   
     intestate. Who are his children?                                                                                           
                                                                                                                                
MR.  GOLTER  said  in  such  a  circumstance,  there  would  be  a                                                              
presumption of paternity but it could be rebutted.                                                                              
                                                                                                                                
CHAIRMAN  TAYLOR said  it  would  have to  be  rebutted after  the                                                              
father's or mother's death during  a probate action to dispute the                                                              
division of  the intestate  estate and the  issue of  decedent. He                                                              
said he understands  the religious concerns but he  knows of cases                                                              
in  which  people  were  separated  for 20  years  and  never  did                                                              
anything  until, "the  IRS showed  up on their  doorstep and  they                                                              
found  out  that  my  husband  hadn't  paid taxes  and  now  I  am                                                              
bankrupt."  He then thanked Mr. Golter for his testimony.                                                                       
                                                                                                                                
SENATOR   COWDERY  moved   CSHB  196(JUD)   from  committee   with                                                              
individual recommendations.                                                                                                     
                                                                                                                                
CHAIRMAN TAYLOR  announced that with  no objection,  CSHB 196(JUD)                                                              
moved from committee.                                                                                                           
                                                                                                                                
The committee took up SB 344.                                                                                                   
                                                                                                                                
               SB 344-TERRORISM AGGRAVATING FACTOR                                                                          
                                                                                                                                
CHAIRMAN  TAYLOR  stated  that  he   introduced  this  legislation                                                              
because of  an article that appeared  some years ago in  the Earth                                                            
First journal. He said his concern  stems from the fact that he is                                                            
seeing more articles in the newspaper  about people acting out and                                                              
committing arson to protect animals  or protect the earth. He said                                                              
that those acts would be considered  terrorism in any other forum.                                                              
SB 344  increases the aggravating  factors at sentencing  should a                                                              
person  be  found to  have  committed  a  criminal act  for  these                                                              
purposes. He then took public testimony.                                                                                        
                                                                                                                                
MS. JENNIFER RUDINGER,  Alaska Civil Liberties Union  (ACLU), said                                                              
the ACLU is a non-profit organization  dedicated to preserving and                                                              
defending the principles of liberty  and free speech guaranteed in                                                              
the Bill  of Rights  and the Alaska  Constitution. The  ACLU urges                                                              
committee  members  not to  pass  SB  344 from  committee  because                                                              
rather than punishing criminal acts,  this bill punishes political                                                              
ideas and  motivations, which  are at the  core of what  the First                                                              
Amendment  was  adopted  to  protect,  that  being  the  right  of                                                              
citizens to  petition their government  for redress  of grievances                                                              
and the  right of  dissenting voices  to be  heard. She  clarified                                                              
that the ACLU  does not oppose the criminal prosecution  of people                                                              
who commit  acts of  civil disobedience  if those  acts result  in                                                              
property damage or  place people in danger. That  type of behavior                                                              
is  already  illegal. However,  such  crimes  are often  not  what                                                              
Alaskans think  of as terrorism and  it would be  very unfortunate                                                              
if  the legislative  response  to terrorism  is  to start  turning                                                              
ordinary Alaskans  into terrorists  just because their  motivation                                                              
is to effect political change.                                                                                                  
                                                                                                                                
MS.  RUDINGER stated  that under  the sweeping  definitions in  SB                                                              
344,  the desire  to  effect  change could  in  and  of itself  be                                                              
sufficient  to  aggravate  the sentences  or  people  whose  civil                                                              
disobedience  does  not  come  anywhere  near the  level  of  what                                                              
Alaskans think of  as terrorism. She said recent  examples are the                                                              
World Trade Organization  protestors who engaged in  minor acts of                                                              
vandalism  or   anti-abortion  protestors  who  engage   in  civil                                                              
disobedience by blocking entry to clinics.                                                                                      
                                                                                                                                
TAPE 02-11, SIDE B                                                                                                              
                                                                                                                                
MS. RUDINGER  said another  example is the  people in  Puerto Rico                                                              
who committed civil disobedience  to stop the use of the island of                                                              
Puerto  Rico for  weapons testing  and bombing.  She repeated  the                                                              
criminal acts  of vandalism and  assault in those  examples should                                                              
be  punished  and  existing  law allows  for  punishment  of  acts                                                              
involving force  or violence  against persons  or property,  as SB                                                              
344  recognizes. However,  the motivations  of  the protestors  to                                                              
influence world  economic policy,  to dissuade women  from seeking                                                              
abortions  or to  change U.S.  policy  with regard  to bombing  in                                                              
Puerto Rico are the bedrock of democracy.  She concluded by saying                                                              
she supports  Chairman  Taylor's effort  to punish criminal  acts,                                                              
but  in  legislators'  efforts  to   protect  Alaskans  from  real                                                              
criminal threats, it is important  that they not criminalize ideas                                                              
and  beliefs  protected  by  the   First  Amendment  by  punishing                                                              
Alaskans' political motivations.                                                                                                
                                                                                                                                
SENATOR  DONLEY  asked  Ms.  Rudinger  if the  ACLU  has  taken  a                                                              
position on hate crimes legislation.                                                                                            
                                                                                                                                
MS.  RUDINGER replied  that about  eight  or nine  years ago,  the                                                              
national ACLU submitted  a brief to the U.S. Supreme  Court urging                                                              
it to uphold a Wisconsin hate crimes  enhancement statute as being                                                              
constitutional, however  the ACLU also asked the  Supreme Court to                                                              
set  forth  a clear  set  of  rules  governing  the use  of  these                                                              
statutes. The ACLU warned the court  that if the state is not able                                                              
to  prove that  a defendant's  speech  is directly  linked to  the                                                              
criminal behavior,  chances would  increase that the  state's hate                                                              
crime  prosecution  would  be  politically   motivated.  She  told                                                              
Senator  Donley  that she  appreciated  the question  because  the                                                              
issue  is very  complicated. She  said  the ACLU  is against  hate                                                              
speech  codes   in  which  only  politically  correct   speech  is                                                              
tolerated, but it does support a  narrowly crafted hate crime bill                                                              
if it  has restrictions  on the kind  of evidence introduced.  She                                                              
asserted  that the  intent and  the effect  of hate  crimes is  to                                                              
oppress and silence  a group of vulnerable people  using fear. She                                                              
emphasized   the  importance   of  ensuring   that  the   evidence                                                              
introduced is limited to the hate crime charges.                                                                                
                                                                                                                                
SENATOR  DONLEY asked  if the  ACLU  does not  oppose hate  crimes                                                              
legislation  if there  is  linkage between  the  actual speech  or                                                              
thought.                                                                                                                        
                                                                                                                                
MS. RUDINGER said  she thought Senator Donley was  right but it is                                                              
a tough line  to draw. ACLU opposed Senator Ted  Kennedy's bill in                                                              
Congress  unless it  was amended  to narrow the  kind of  evidence                                                              
that could  be introduced. The ACLU  was leery of the  broad scope                                                              
of the bill  and how much  of a person's beliefs  and associations                                                              
could be  used against them in  a trial about a  particular crime.                                                              
However,  sometimes speech  is related to  a crime,  such as  in a                                                              
lynching,  so  it is  a  very difficult  line  to draw.  The  ACLU                                                              
supports hate crime legislation overall  because of the oppressive                                                              
effect hate crimes have on vulnerable groups of people.                                                                         
                                                                                                                                
SENATOR DONLEY asked if the ACLU  has extended its area of concern                                                              
into disparate  treatment based on  race or other  non-permissible                                                              
factors.                                                                                                                        
                                                                                                                                
MS. RUDINGER asked Senator Donley to be more specific.                                                                          
                                                                                                                                
SENATOR  DONLEY  asked  Ms.  Rudinger  if the  ACLU  has  taken  a                                                              
position on the Governor's proposed subsistence amendment.                                                                      
                                                                                                                                
MS. RUDINGER  said the  ACLU supports  a constitutional  amendment                                                              
but it hasn't  yet testified on the  issue. The ACLU does  not see                                                              
the subsistence issue  as a race-based issue but  one of necessity                                                              
that is connected  to freedom of religion and  spiritual heritage.                                                              
She  said   the  short   answer  is  the   ACLU  does   support  a                                                              
constitutional   amendment   or  some   kind   of  protection   of                                                              
subsistence use based on the fact  that subsistence is so integral                                                              
to Native culture  - it goes beyond simply food and  gets into the                                                              
spiritual heritage of the culture.                                                                                              
                                                                                                                                
SENATOR  DONLEY   asked  why  the  ACLU  feels   a  constitutional                                                              
amendment  is   necessary  when  the  state   already  prioritizes                                                              
subsistence uses as the highest priority  use. The only purpose of                                                              
a constitutional amendment would  be to provide for discrimination                                                              
of urban  subsistence users  to the  benefit of rural  subsistence                                                              
users, not necessarily based on any  merit or cultural background.                                                              
                                                                                                                                
MS.  RUDINGER responded  by  saying the  ACLU  wouldn't limit  its                                                              
support to just a constitutional  amendment but it would support a                                                              
subsistence  preference in  times  of shortage,  the reason  being                                                              
that subsistence  is so much a  part of the culture  and heritage.                                                              
Subsistence is not  simply a matter of gathering  food. The Alaska                                                              
Constitution gives  everyone the right  to eat. The  ACLU supports                                                              
subsistence  because it  believes it  is a  very important  matter                                                              
that  needs to be  resolved  and it will  only come  into play  in                                                              
times of shortage. She repeated that  during times of shortage, it                                                              
is  very important  to protect  the spiritual  heritage of  Alaska                                                              
Natives. She offered  to meet with Senator Donley  at another time                                                              
to elaborate further.                                                                                                           
                                                                                                                                
SENATOR  DONLEY  said  he appreciates  Ms.  Rudinger's  offer  and                                                              
explanation but he doesn't believe  her explanation is consistent.                                                              
                                                                                                                                
MS. RUDINGER remarked  that it is hard to sum up  a position on an                                                              
issue like subsistence in a short time period.                                                                                  
                                                                                                                                
SENATOR DONLEY noted the Anchorage  Assembly thinks it's competent                                                              
enough to do so.                                                                                                                
                                                                                                                                
CHAIRMAN TAYLOR said  he was fascinated by Ms.  Rudinger's comment                                                              
that the  ACLU supports  hate crime legislation  if it  contains a                                                              
sufficient limitation upon the evidence  of motive or the evidence                                                              
of hate.                                                                                                                        
                                                                                                                                
MS. RUDINGER agreed  that is what she said and stated  the ACLU is                                                              
opposed to  hate speech  codes. The ACLU  does not believe  speech                                                              
can be restricted  and, in fact, the ACLU has  defended the rights                                                              
of  numerous  groups  whose  speech  she  can't  stand.  The  ACLU                                                              
defended the rights  of the Nazi party to peaceably  march through                                                              
a primarily  Jewish town  in Illinois. However,  when it  comes to                                                              
hate crimes,  the motivation in  itself does harm.  The motivation                                                              
behind a hate crime  is not just aimed at the  victim of the crime                                                              
but  it is  aimed  at an  entire  group of  people  and sends  the                                                              
message that  this will happen to  you if you assert  your rights.                                                              
The ACLU  is very  cautious however,  and has  opposed hate  crime                                                              
bills that include speech.                                                                                                      
                                                                                                                                
CHAIRMAN TAYLOR  said SB  344 refers  to the defendant's  criminal                                                              
conduct so it does not apply to anything  that is defensible under                                                              
the First Amendment because that  wouldn't be criminal conduct. He                                                              
read from  SB 344, "...the  defendant's criminal  conduct involved                                                              
the use of force  or violence against persons or  property and was                                                              
designed to  (A) intimidate or  coerce a civilian  population." He                                                              
asked, "Isn't that what a lynching is all about?"                                                                               
                                                                                                                                
MS. RUDINGER said SB 344 does not  affect criminal conduct because                                                              
the conduct  has already  been punished. SB  344 does say  that at                                                              
sentencing for that  conduct, there's an aggravating  factor as to                                                              
what the  motivation was in the  mind of the person  who committed                                                              
the act.                                                                                                                        
                                                                                                                                
CHAIRMAN TAYLOR asked,  "Isn't that what we do  in all sentencing?                                                              
Don't  we look  to the  motive and  the  mens rea  - the  criminal                                                              
intent of the individual?"                                                                                                      
                                                                                                                                
MS. RUDINGER replied:                                                                                                           
                                                                                                                                
     Mr.  Chairman,  intent  and motive  are  different.  The                                                                   
     intent  is to commit  the act  or to  see that the  harm                                                                   
     itself is done but the motives  listed here are not just                                                                   
     to commit the act, but to send  a message. This looks at                                                                   
     is the  motive behind the  act being committed,  is that                                                                   
     motive  to send  a message.  The sending  of a  message,                                                                   
     however unpopular  the message  may be, is exactly  what                                                                   
     the  First Amendment  was designed  to  protect. We  can                                                                   
     punish the  means, and we already  do in the  first part                                                                   
     of  statute  12.55.155  and  .125 but  the  motive,  the                                                                   
     thought, we  cannot and should not punish,  especially -                                                                   
     we  have  some  concerns about  how  vaguely  these  are                                                                   
     worded...  as I  look at  all of  the verbs  in here,  I                                                                   
     think they  all boil down  to wanting to make  political                                                                   
     change.                                                                                                                    
                                                                                                                                
CHAIRMAN TAYLOR asked  how the verbs are any different  than those                                                              
found within the  definitions of the various hate  crime laws that                                                              
Ms. Rudinger  mentioned. He questioned  how the lynching  she used                                                              
as an example was  not designed by the Ku Klux  Klan to intimidate                                                              
or coerce a civilian population?                                                                                                
                                                                                                                                
MS. RUDINGER said  clearly lynchings and hate  crimes are designed                                                              
to intimidate  but the difference  between hate crimes and  SB 344                                                              
is who  the intimidation  is aimed  at. She  noted the  motivation                                                              
behind a hate  crime is designed to intimidate  and oppress groups                                                              
of people who have been oppressed in the past.                                                                                  
                                                                                                                                
CHAIRMAN TAYLOR  asked why  hate crimes only  apply to  groups who                                                              
have been intimidated in the past.                                                                                              
                                                                                                                                
MS. RUDINGER  said the hate  crimes bills  that she has  seen have                                                              
tried  to protect  people from  being oppressed  by violence.  The                                                              
bills  are aimed  at correcting  past  discrimination. She  stated                                                              
there is  a big difference  between oppressing  a group  of people                                                              
who are  vulnerable and intimidating  the government. Any  kind of                                                              
protest is designed  to influence the policy of  a government, and                                                              
one could argue  by intimidation if  a lot of voters are  going to                                                              
be upset by it.                                                                                                                 
                                                                                                                                
CHAIRMAN TAYLOR commented, "Not by criminal conduct, I hope."                                                                   
                                                                                                                                
MS. RUDINGER said  the conduct should be punished  under the first                                                              
part of the statute.                                                                                                            
                                                                                                                                
CHAIRMAN TAYLOR asked if that punishment  should not be aggravated                                                              
by what  the conduct  was designed  to do. He  stated, "If  it was                                                              
intentionally designed by the people  who did the criminal conduct                                                              
to intimidate and coerce all of the  people living down river from                                                              
the dam when  they blew the dam  up, and they blackmailed  on that                                                              
basis,  they said  pay us $2  million  or we'll blow  up the  dam.                                                              
That's pure  and simple,  we don't have  a problem with  that one.                                                              
But,  if instead  they say  you cannot  allow  that nuclear  power                                                              
plant to be  built down river or  we'll blow up your  dam, somehow                                                              
that's free speech  and the other one is not. It's  a criminal act                                                              
that should be punished. Why should the aggravator not apply?"                                                                  
                                                                                                                                
MS.  RUDINGER  said   both  acts  are  criminal   acts.  The  acts                                                              
themselves  say  harm  will  come if  something  isn't  done.  She                                                              
continued, "The acts themselves are  criminal conduct and this, of                                                              
course,  is  limited   to  using  force  or  violence,   not  just                                                              
threatening to use force or violence."                                                                                          
                                                                                                                                
CHAIRMAN TAYLOR said that is correct.                                                                                           
                                                                                                                                
MS. RUDINGER stated:                                                                                                            
                                                                                                                                
     The only thing  that your bill changes is  the part that                                                                   
     says and was  designed to (A)(B)(C)(D), in  other words,                                                                   
     the motivation  was (A)(B)(C) or (D).  Those motivations                                                                   
     are so vaguely worded, we have  some real concerns about                                                                   
     protected  free  speech  being   swept  into  them  just                                                                   
     because that speech might be  politically unpopular if a                                                                   
     prosecutor  wanted  to  try   to  add  some  aggravating                                                                   
     sentences and send a message.                                                                                              
                                                                                                                                
CHAIRMAN TAYLOR said he understood Ms. Rudinger's point.                                                                        
                                                                                                                                
SENATOR THERRIAULT  noted there must be the  underlying commission                                                              
of a crime  so none of SB  344 would be triggered unless  a person                                                              
commits and is convicted of a crime.  He said he believes a lot of                                                              
limits were built into SB 344 by the way it is structured.                                                                      
                                                                                                                                
MS. RUDINGER  gave the  example of the  WTO protest several  years                                                              
ago  at which  protesters got  out  of hand.  The individuals  who                                                              
vandalized the car  would be prosecuted.  If SB 344  was in force,                                                              
it would  apply during the sentencing  stage. Without SB  344, the                                                              
sentence would  be whatever it is  for vandalizing a car.  With SB                                                              
344, it would  be possible to  say that because the  motivation of                                                              
the act was to influence the economic  policy, the sentence should                                                              
be  worse. She  said  the motivation  is  protected  by the  First                                                              
Amendment but the act is not so SB  344 would be turning the First                                                              
Amendment on its head.                                                                                                          
                                                                                                                                
SENATOR  THERRIAULT   asked  if   the  question  is   whether  the                                                              
perpetrator wanted to affect policy  change through the commission                                                              
of a crime.                                                                                                                     
                                                                                                                                
MS.  RUDINGER replied,  "No, the  conduct should  be punished  but                                                              
it's not the same thing to say we  want to affect policy as to say                                                              
well, we want  to affect policy by  - you know, things  got out of                                                              
hand so we should not be responsible."  If things get out of hand,                                                              
the protester is  responsible and should be punished  for the act,                                                              
but to say  the motivation is  an aggravating factor says  the act                                                              
itself is even worse because of the motivation.                                                                                 
                                                                                                                                
CHAIRMAN TAYLOR said, regarding the  WTO protest, from the reports                                                              
he has  seen, nothing  got out of  hand, it  was well planned  and                                                              
orchestrated  to  create  mob violence  in  downtown  Seattle.  He                                                              
stated:                                                                                                                         
                                                                                                                                
     Inability to show total conspiracy  on the part of those                                                                   
     individuals -  somehow it's okay  now to yell fire  in a                                                                   
     crowded theatre if you're doing  it for the right reason                                                                   
     but  the judge shouldn't  consider  that the outcome  of                                                                   
     your act, if you were not doing  it for some politically                                                                   
     correct  reason,  that somehow  the  judge  has to  have                                                                   
     blinders on  and go, oh no.  You were Mahatma  Gandhi in                                                                   
     the middle of  the theatre and you just yelled  fire and                                                                   
     it happened to get out of hand  and you didn't do it for                                                                   
     any  other  reason but  if  you  were  part of  the  WTO                                                                   
     protesters  and  you sent  a  person into  every  single                                                                   
     theatre in  town and the yelling  of fire occurs  all at                                                                   
     the  same  time,  that  the judge  is  not  supposed  to                                                                   
     consider that  as an aggravating  factor? That  was what                                                                   
     your criminal conduct was designed to do?                                                                                  
                                                                                                                                
MS. RUDINGER stated  that shouting fire in a crowded  theatre with                                                              
the  obvious intent  of causing  a  panic would  not be  protected                                                              
speech. In  the example of a protest  that gets out of  hand, even                                                              
if  there was  a conspiracy  to cause  a riot,  she felt  Chairman                                                              
Taylor was saying  that some people were caught and  some were not                                                              
so this would be a way to tie in those who weren't caught.                                                                      
                                                                                                                                
CHAIRMAN TAYLOR said he was not suggesting that at all.                                                                         
                                                                                                                                
MS.  RUDINGER said  SB 344  only  comes into  play at  sentencing,                                                              
after a person has been convicted.                                                                                              
                                                                                                                                
CHAIRMAN TAYLOR said SB 344 only  comes into play after all of the                                                              
events have occurred. The person  was found guilty and is standing                                                              
before the court to be sentenced.  He said Ms. Rudinger is telling                                                              
him that the Alaska Legislature can't  tell the judge to look into                                                              
the  heart of  the individual  and the  heart of  the action  that                                                              
occurred to determine  what the action was designed  to accomplish                                                              
- whether the  intent of the protester  was to be part  of a group                                                              
to intimidate  and coerce  another  group of people,  just  like a                                                              
lynching was intended to. He asked  Ms. Rudinger how she makes the                                                              
fine line distinction between that  which is a protected designed-                                                              
to-do activity because  it might involve speech and  is a criminal                                                              
act, and  that which is  not protected.  He said apparently  it is                                                              
politically correct  to use hate crime legislation and  to use, as                                                              
an aggravator, somebody who lynches  a black person, yet it is not                                                              
politically correct  to use, as an aggravator,  somebody who tears                                                              
up downtown Seattle, puts people in hospitals and causes mayhem.                                                                
                                                                                                                                
MS. RUDINGER responded that most  Alaskans would want a person who                                                              
threw a rock through  a window to be punished but  would not think                                                              
of that act as terrorism.                                                                                                       
                                                                                                                                
CHAIRMAN  TAYLOR  said maybe  his  act  wasn't designed  for  that                                                              
purpose.                                                                                                                        
                                                                                                                                
MS. RUDINGER said, regarding Chairman  Taylor's question on how to                                                              
draw that line,  she agrees it is a difficult line  to draw so she                                                              
would look  to the First Amendment,  which she read parts  of. The                                                              
First  Amendment provides  for the  right of  people to  peaceably                                                              
assemble  and  to  petition  the   government  for  a  redress  of                                                              
grievances. She said that according  to Section (C) of SB 344, the                                                              
aggravating factor  would apply to  acts that "affect  the conduct                                                              
of a  unit of  government;". Therefore  redressing the  government                                                              
for grievances would be the motive.                                                                                             
                                                                                                                                
CHAIRMAN  TAYLOR clarified  that  it applies  to criminal  conduct                                                              
used to influence  government and asked what is  so shocking about                                                              
that.  He  pointed out  that  by  statute,  one cannot  coerce  or                                                              
financially threaten a seated legislator on how they vote.                                                                      
                                                                                                                                
MS. RUDINGER  said the ACLU  agrees with  that statute but  SB 344                                                              
doesn't affect it. She said:                                                                                                    
                                                                                                                                
     We've  already   got  criminal  conduct.  We've   got  a                                                                   
     conviction  and  now  we're  at  sentencing.  This  bill                                                                   
     really says  [it applies if]  that criminal  conduct was                                                                   
     designed to (A)(B)(C)(D) and  the (A)(B)(C)(D) look like                                                                   
     the  First Amendment's  goal of  protecting -  affecting                                                                   
     change.  It's the  motivation  that is  the  aggravating                                                                   
     factor.  The motivation is  affecting political  change,                                                                   
     the  behavior  should  be  punished  and  we  completely                                                                   
     agree,  no one  has a  right  to use  violence or  force                                                                   
     against people or property for any reason - we agree.                                                                      
                                                                                                                                
CHAIRMAN  TAYLOR said  there must  be some reasons  for which  the                                                              
ACLU is saying there should be no aggravators.                                                                                  
                                                                                                                                
MS. RUDINGER  stated it is not  the conduct, it's the  idea behind                                                              
it that  SB 344  is affecting.  She clarified  that she  is saying                                                              
those  should not  make the  sentence  worse; they  should not  be                                                              
aggravators.                                                                                                                    
                                                                                                                                
CHAIRMAN  TAYLOR  said  he  has  a  difficult  time  working  that                                                              
rationale into watching the Twin  Towers collapse on September 11.                                                              
He can't  believe those  acts were  any other  than criminal  acts                                                              
designed to intimidate or coerce  a civilian population, influence                                                              
the policy  of a  government by intimidation  or coercion,  affect                                                              
the conduct of a unit of government,  or influence the policy of a                                                              
private  enterprise  by  intimidation  or  coercion.  He  said  in                                                              
essence,  Ms. Rudinger  is  saying  those perpetrators  should  be                                                              
charged  with violating  flight laws  of the  U.S. Government  and                                                              
that conduct should be punished.                                                                                                
                                                                                                                                
MS. RUDINGER disagreed and said her  caution to the Legislature is                                                              
that  SB 344  will  "throw  the baby  out  with the  bath  water."                                                              
Alaskans  need  protection from  real  terrorists  but  SB 344  is                                                              
worded so  broadly it could sweep  into its scope  protected First                                                              
Amendment activity by protesters.                                                                                               
                                                                                                                                
CHAIRMAN TAYLOR  said his difficulty in understanding  her concern                                                              
is:                                                                                                                             
                                                                                                                                
     The  fellow  who goes  out  because he's  all  concerned                                                                   
     about the  environment and drives ceramic spikes  into a                                                                   
     tree because he knows that the  detection unit for metal                                                                   
     objects will  not register the  ceramic spike,  and then                                                                   
     the  ceramic spike  in the  tree ends  up in  a mill  in                                                                   
     Oregon  where it goes  through, and  he knows that  it's                                                                   
     going to that  plant, it goes through a high  speed saw.                                                                   
     The saw hits the ceramic spike  and the saw blows up and                                                                   
     kills  the  workman  inside  the plant.  Now  those  are                                                                   
     actual facts.  What's he guilty  of - of trespassing  on                                                                   
     the tree? Or  did he intend and was his  act and conduct                                                                   
     designed to  intimidate and coerce an entire  section of                                                                   
     our population. And if there's  something in there about                                                                   
     his freedom  of speech because  he thought he  was doing                                                                   
     it  for  some  good  purpose, I'm  having  a  hard  time                                                                   
     understanding your analogies.                                                                                              
                                                                                                                                
MS. RUDINGER  said he  would be  guilty of  the criminal  conduct,                                                              
which gets him to the sentencing phase.                                                                                         
                                                                                                                                
CHAIRMAN  TAYLOR asked  if,  at the  sentencing  stage, the  judge                                                              
should consider why  he was motivated to design and  carry out the                                                              
act.                                                                                                                            
                                                                                                                                
MS. RUDINGER said at the sentencing  phase, the fact that somebody                                                              
wanted to  affect political  change should  not be an  aggravating                                                              
factor  on the  sentence.  The sentence  should  be harsh  because                                                              
someone  died  but the  motivation  of  wanting to  affect  change                                                              
should not be the factor that makes the sentence worse.                                                                         
                                                                                                                                
CHAIRMAN TAYLOR replied:                                                                                                        
                                                                                                                                
     The  Unabomber  should not  be  -  should not  have  his                                                                   
     sentence  enhanced because of  the thing that  motivated                                                                   
     him to  blow people up? He  should only be  convicted of                                                                   
     and  sentenced to  whatever  damage, I  guess, the  bomb                                                                   
     caused  when it  went off?  Nobody  should consider  his                                                                   
     motivation  for  doing  it?  I find  that  difficult  to                                                                   
     understand why you would expect  the judge to have those                                                                   
     blinders on.                                                                                                               
                                                                                                                                
MS. RUDINGER  said that is not what  she is saying. She  is saying                                                              
that SB 344 is  so broadly worded that in his  attempt to go after                                                              
real terrorism, he is sweeping into  the scope of this bill people                                                              
who  the ACLU  doesn't think  of as  terrorists. She  noted if  an                                                              
abortion protester  uses force to  block a person from  entering a                                                              
clinic, the protester will be arrested  for assault or battery but                                                              
the motivation could have been to  affect change and should not be                                                              
an  aggravating factor  in sentencing.  She pointed  out that  the                                                              
First Amendment does  not protect a person who  uses criminal acts                                                              
to affect change, and SB 344 does not change that.                                                                              
                                                                                                                                
CHAIRMAN TAYLOR  noted that civil  disobedience is not civil  if a                                                              
person hurts another;  the act is criminal. The  Constitution does                                                              
not sanction criminal acts as free speech.                                                                                      
                                                                                                                                
MS. RUDINGER  said the ACLU is not  saying that the act  is an act                                                              
of free speech.  The act is an act of violence.  She said the ACLU                                                              
agrees with the  premise that criminal conduct  should be punished                                                              
but it does not  agree the sentence should be  harsher because the                                                              
criminal conduct was done to make  a political statement. The ACLU                                                              
believes  doing so  could be  dangerous  because it  will lead  to                                                              
prosecution  of  unpopular  political   ideas  as  an  aggravating                                                              
factor.                                                                                                                         
                                                                                                                                
CHAIRMAN  TAYLOR  said he  understands  Ms. Rudinger's  point  and                                                              
appreciates the  discourse, as it is  important to have  it on the                                                              
record. There was no further testimony on SB 344.                                                                               
                                                                                                                                
SENATOR COWDERY  moved SB  344 to the  next committee  of referral                                                              
with individual recommendations.                                                                                                
                                                                                                                                
CHAIRMAN TAYLOR announced that without  objection, SB 344 moved to                                                              
the next committee of referral.                                                                                                 
                                                                                                                                
The committee took up HB 297.                                                                                                   
                                                                                                                                
        HB 297-CRIMES: RESTITUTION & AGGRAVATING FACTORS                                                                    
                                                                                                                                
REPRESENTATIVE KEVIN MEYER, sponsor  of HB 297, said this bill has                                                              
been a learning experience for him,  as it has become a "Christmas                                                              
tree" bill.  He said  that is  acceptable to  him as the  original                                                              
intent  of  his legislation  is  still  intact and  the  additions                                                              
improve  the  juvenile  restitution  program.  He  explained  that                                                              
Section 2 of the committee substitute  contains the contents of HB                                                              
297.  It  adds  an aggravating  factor  when  drugs  or  excessive                                                              
alcohol are used to incapacitate  a person to the point where they                                                              
become  the   victim  of  a   sexual  assault.  He   believes  the                                                              
seriousness of such conduct should  be elevated in the eyes of the                                                              
court.  He  noted  that  sexual   assault  is  devastating  Alaska                                                              
communities.  He began  working on  this bill  because the  "date-                                                              
rape"  pill is  being used  to commit  more  sexual assaults.  Sex                                                              
offenders who  use those pills often  do so to prevent  the victim                                                              
from  resisting. CSHB  297(JUD)  does not  require  the courts  to                                                              
impose stricter penalties,  it simply gives the  court the ability                                                              
to do so.                                                                                                                       
                                                                                                                                
REPRESENTATIVE  MEYER explained  the  other sections  of the  bill                                                              
amend the juvenile  restitution statutes and were  included at the                                                              
request of Senator Halford.                                                                                                     
                                                                                                                                
Section 1 creates a new section declaring  that if a conviction is                                                              
set aside, the  restitution will remain enforceable.  He explained                                                              
that  sometimes  a  conviction  is  set aside  when  part  of  the                                                              
sentence was  served. Section 1  ensures that restitution  is paid                                                              
even if the conviction is set aside.                                                                                            
                                                                                                                                
Section  3  relates  to  delinquency   disposition  orders.  Under                                                              
current law,  juveniles and  parents are  required to submit  full                                                              
financial statements when restitution  is being decided. Section 3                                                              
requires full  financial statements  only when one  party requests                                                              
them. He noted  that in most cases, full financial  statements are                                                              
not necessary  because the  amount of restitution  is less  than a                                                              
permanent fund  dividend. However,  if damages run  into thousands                                                              
of dollars, full financial statements would be required.                                                                        
                                                                                                                                
Section 4  makes sure that  restitution orders are  not terminated                                                              
just because the  offender has "aged-out" of the  authority of the                                                              
juvenile  system.  Restitution  must   be  paid  even  though  the                                                              
                                   thth                                                                                         
offender has reached his or her 19 or 20 birthday.                                                                              
                                                                                                                                
Section  5  relates  to  the  paperwork  process  for  restitution                                                              
payments. The  current process  has the  paperwork going  from the                                                              
Department of  Health and Social  Services to the court  system to                                                              
the Department  of Law  for collection. Section  5 will  allow the                                                              
paperwork to go directly from the  Department of Health and Social                                                              
Services  to  the Department  of  Law  to  make the  process  more                                                              
efficient.                                                                                                                      
                                                                                                                                
REPRESENTATIVE  MEYER  asked the  committee  to  support SCS  CSHB                                                              
297(HUD)  and noted  he  had several  people  available to  answer                                                              
questions.                                                                                                                      
                                                                                                                                
SENATOR THERRIAULT asked what is repealed in Section 6.                                                                         
                                                                                                                                
REPRESENTATIVE  MEYER  said  it  applies  to  mandatory  financial                                                              
disclosure.                                                                                                                     
                                                                                                                                
SENATOR DONLEY  moved to  adopt the  proposed Senate Judiciary  CS                                                              
(Luckhaupt  3/22/02, Version  S) as  the working  document of  the                                                              
committee.                                                                                                                      
                                                                                                                                
CHAIRMAN  TAYLOR  announced  that   without  objection,  SCS  CSHB                                                              
297(JUD) was before the committee.                                                                                              
                                                                                                                                
REPRESENTATIVE MEYER asked if the  committee needed to take action                                                              
on the concurrent resolution.                                                                                                   
                                                                                                                                
SENATOR  DONLEY  suggested  that  Chairman  Taylor  introduce  the                                                              
concurrent resolution on the Senate floor.                                                                                      
                                                                                                                                
CHAIRMAN TAYLOR maintained that it is "ready to go."                                                                            
                                                                                                                                
SENATOR  THERRIAULT noted  that,  in general,  a  bill contains  a                                                              
repeal section  when new statutory  sections are added but  he did                                                              
not see any.                                                                                                                    
                                                                                                                                
CHAIRMAN  TAYLOR clarified  that  the new  material  was added  to                                                              
.120.                                                                                                                           
                                                                                                                                
MS.  ANNE CARPENETI,  representing  the Criminal  Division of  the                                                              
Department of Law, explained that  repealing the section requiring                                                              
mandatory financial  disclosure will  make disclosure  optional at                                                              
the  request  of  various  parties. For  example,  if  the  victim                                                              
advocate  requested  financial  disclosure,  the  court  would  be                                                              
required  to  order  it.  She  noted   in  most  cases,  financial                                                              
disclosure  is not necessary  because the  restitution amounts  to                                                              
less than the permanent fund dividend.                                                                                          
                                                                                                                                
SENATOR THERRIAULT asked if the language  is being repositioned on                                                              
the bottom of page 2, line 29.                                                                                                  
                                                                                                                                
MS. CARPENETI said that is correct.                                                                                             
                                                                                                                                
CHAIRMAN  TAYLOR   asked  if  the  requirement   that  orders  for                                                              
restitution  remain past  the  age of  minority  applies to  other                                                              
orders for restitution in district and superior courts.                                                                         
                                                                                                                                
MS. CARPENETI  said she  believes so.  She noted this  requirement                                                              
has been  passed by  the legislature in  all forms of  restitution                                                              
and Section  1 actually clarifies  in statute that in  a suspended                                                              
imposition of sentence, the restitution order survives.                                                                         
                                                                                                                                
There being  no further testimony,  SENATOR DONLEY moved  SCS CSHB                                                              
297(JUD) from  committee with  individual recommendations  and any                                                              
accompanying fiscal notes.                                                                                                      
                                                                                                                                
CHAIRMAN  TAYLOR  announced  that   without  objection,  SCS  CSHB                                                              
297(JUD)  moved  from  committee.   He  also  announced  that  the                                                              
committee  would  introduce  a  Senate  concurrent  resolution  to                                                              
provide for the title changes necessitated  by the changes made in                                                              
the committee substitute. There being  no further business to come                                                              
before the committee, he adjourned the meeting at 3:15 p.m.                                                                     

Document Name Date/Time Subjects