Legislature(2003 - 2004)

04/21/2004 08:05 AM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                     ALASKA STATE LEGISLATURE                                                                                 
               SENATE JUDICIARY STANDING COMMITTEE                                                                            
                          April 21, 2004                                                                                        
                            8:05 a.m.                                                                                           
                                                                                                                                
TAPE(S) 04-48,49,50                                                                                                             
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Senator Ralph Seekins, Chair                                                                                                    
Senator Scott Ogan, Vice Chair                                                                                                  
Senator Gene Therriault                                                                                                         
Senator Johnny Ellis                                                                                                            
Senator Hollis French                                                                                                           
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
All members present                                                                                                             
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
CS FOR HOUSE BILL NO. 83(JUD)                                                                                                   
"An Act  adopting a  version of  the Revised  Uniform Arbitration                                                               
Act; relating  to the state's  existing Uniform  Arbitration Act;                                                               
amending  Rules 3,  18, 19,  20, and  21, Alaska  Rules of  Civil                                                               
Procedure,  Rule 601,  Alaska Rules  of Evidence,  and Rule  402,                                                               
Alaska  Rules  of  Appellate  Procedure;  and  providing  for  an                                                               
effective date."                                                                                                                
     MOVED CSHB 83(JUD) OUT OF COMMITTEE                                                                                        
                                                                                                                                
SENATE BILL NO. 385                                                                                                             
"An  Act relating  to  homeland security,  to  civil defense,  to                                                               
emergencies and  to disasters, including  disasters in  the event                                                               
of  attacks,  outbreaks  of  disease, or  threats  of  attack  or                                                               
outbreak  of   disease;  establishing  the  Alaska   division  of                                                               
homeland security  and emergency management in  the Department of                                                               
Military and Veterans'  Affairs and relating to  the functions of                                                               
that  division   and  that  department;  and   providing  for  an                                                               
effective date."                                                                                                                
     MOVED CSSB 385(JUD) OUT OF COMMITTEE                                                                                       
                                                                                                                                
HOUSE CONCURRENT RESOLUTION NO. 29 am                                                                                           
Relating  to support  for therapeutic  courts for  repeat driving                                                               
while under the influence offenders.                                                                                            
     MOVED HCR 29 am OUT OF COMMITTEE                                                                                           
                                                                                                                                
CS FOR HOUSE BILL NO. 56(L&C)                                                                                                   
"An Act relating  to the award to the state  of actual reasonable                                                               
attorney  fees and  costs, including  costs of  investigation, in                                                               
certain  court actions  relating to  unfair trade  practices; and                                                               
amending  Rules  54(d),  79,  and   82,  Alaska  Rules  of  Civil                                                               
Procedure."                                                                                                                     
     MOVED CSHB 56(L&C) OUT OF COMMITTEE                                                                                        
                                                                                                                                
CS FOR HOUSE BILL NO. 514(FIN) am                                                                                               
"An Act  relating to child support  modification and enforcement,                                                               
to  the   establishment  of  paternity   by  the   child  support                                                               
enforcement agency, and to the  crimes of criminal nonsupport and                                                               
aiding  the  nonpayment of  child  support;  amending Rule  90.3,                                                               
Alaska Rules of  Civil Procedure; and providing  for an effective                                                               
date."                                                                                                                          
     SCHEDULED BUT NOT HEARD                                                                                                    
                                                                                                                                
PREVIOUS COMMITTEE ACTION                                                                                                     
                                                                                                                                
BILL: HB  83                                                                                                                  
SHORT TITLE: REVISED UNIFORM ARBITRATION ACT                                                                                    
SPONSOR(s): REPRESENTATIVE(s) BERKOWITZ                                                                                         
                                                                                                                                
02/07/03       (H)       READ THE FIRST TIME - REFERRALS                                                                        
02/07/03       (H)       JUD                                                                                                    
03/07/03       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
03/07/03       (H)       -- Meeting Postponed to 03/10/03 --                                                                    
03/10/03       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
03/10/03       (H)       Heard & Held                                                                                           
03/10/03       (H)       MINUTE(JUD)                                                                                            
03/12/03       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
03/12/03       (H)       Moved CSHB 83(JUD) Out of Committee                                                                    
03/12/03       (H)       MINUTE(JUD)                                                                                            
03/31/03       (H)       JUD RPT CS(JUD) 4DP 2NR                                                                                
03/31/03       (H)       DP: GARA, ANDERSON, GRUENBERG, MCGUIRE;                                                                
03/31/03       (H)       NR: SAMUELS, COGHILL                                                                                   
04/16/03       (H)       TRANSMITTED TO (S)                                                                                     
04/16/03       (H)       VERSION: CSHB 83(JUD)                                                                                  
04/17/03       (S)       READ THE FIRST TIME - REFERRALS                                                                        
04/17/03       (S)       L&C, JUD                                                                                               
05/13/03       (S)       L&C AT 2:00 PM BELTZ 211                                                                               
05/13/03       (S)       Heard & Held                                                                                           
05/13/03       (S)       MINUTE(L&C)                                                                                            
05/15/03       (S)       L&C AT 7:45 AM BUTROVICH 205                                                                           
05/15/03       (S)       Moved Out of Committee                                                                                 
05/15/03       (S)       MINUTE(L&C)                                                                                            
05/16/03       (S)       L&C RPT 3NR                                                                                            
05/16/03       (S)       NR: BUNDE, SEEKINS, STEVENS G                                                                          
03/05/04       (S)       JUD AT 8:00 AM BUTROVICH 205                                                                           
03/05/04       (S)       Scheduled But Not Heard                                                                                
03/12/04       (S)       JUD AT 8:00 AM BUTROVICH 205                                                                           
03/12/04       (S)       Scheduled But Not Heard                                                                                
04/21/04       (S)       JUD AT 8:00 AM BUTROVICH 205                                                                           
                                                                                                                                
BILL: SB 385                                                                                                                  
SHORT TITLE: SECURITY;DIV. HOMELAND SECURITY/EMER. MGT                                                                          
SPONSOR(s): HEALTH, EDUCATION & SOCIAL SERVICES                                                                                 
                                                                                                                                
04/05/04       (S)       READ THE FIRST TIME - REFERRALS                                                                        
04/05/04       (S)       HES, FIN                                                                                               
04/05/04       (S)       HES AT 1:30 PM BUTROVICH 205                                                                           
04/05/04       (S)       Heard & Held                                                                                           
04/05/04       (S)       MINUTE(HES)                                                                                            
04/07/04       (S)       HES AT 1:30 PM BUTROVICH 205                                                                           
04/07/04       (S)       -- Rescheduled to 5:30 pm 04/07/04 --                                                                  
04/07/04       (S)       HES AT 5:30 PM BUTROVICH 205                                                                           
04/07/04       (S)       -- Rescheduled from 1:30 04/07/04 --                                                                   
04/08/04       (S)       HES RPT CS  2DP 2NR   SAME TITLE                                                                       
04/08/04       (S)       DP: DYSON, WILKEN; NR: GUESS, DAVIS                                                                    
04/16/04       (S)       FIN REFERRAL WAIVED REFERRED TO RULES                                                                  
04/20/04       (S)       JUD REFERRAL ADDED AFTER HES                                                                           
04/20/04       (S)       JUD WAIVED PUBLIC HEARING NOTICE,RULE23                                                                
04/21/04       (S)       JUD AT 8:00 AM BUTROVICH 205                                                                           
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
Senator Fred Dyson                                                                                                              
Alaska State Capitol                                                                                                            
Juneau, AK  99801-1182                                                                                                          
POSITION STATEMENT:  Presented SB 385 for the Senate Health,                                                                  
Education and Social Services Committee and testified in support                                                                
of CSHB 56(L&C)                                                                                                                 
                                                                                                                                
Mr. Dave Liebersbach                                                                                                            
Division of Emergency Services                                                                                                  
Department of Military & Veterans Affairs                                                                                       
PO Box 5750                                                                                                                     
Fort Richardson, AK  99505-5750                                                                                                 
POSITION STATEMENT:  Answered questions about SB 385                                                                          
                                                                                                                                
Mr. Jim Butler                                                                                                                  
Kenai, AK                                                                                                                       
POSITION STATEMENT:  Made suggestions to improve SB 385                                                                       
                                                                                                                                
Mr. David Gibbs                                                                                                                 
Emergency Manager                                                                                                               
Kenai Peninsula Borough                                                                                                         
Kenai, AK                                                                                                                       
POSITION STATEMENT:  Made suggestions to improve SB 385                                                                       
                                                                                                                                
Lt. Al Storey                                                                                                                   
Division of Alaska State Troopers                                                                                               
Department of Public Safety                                                                                                     
3700 East Tudor Road                                                                                                            
Anchorage, Alaska  99507                                                                                                        
POSITION STATEMENT:  Answered questions pertaining to SB 385                                                                  
                                                                                                                                
Mr. Dean Guaneli                                                                                                                
Assistant Attorney General                                                                                                      
Department of Law                                                                                                               
PO Box 110300                                                                                                                   
Juneau, AK  99811-0300                                                                                                          
POSITION STATEMENT:  Answered questions pertaining to SB 385                                                                  
                                                                                                                                
Representative Les Gara                                                                                                         
Alaska State Capitol                                                                                                            
Juneau, AK  99801-1182                                                                                                          
POSITION STATEMENT:  Sponsor of HB 56                                                                                         
                                                                                                                                
Mr. John Bittner                                                                                                                
Staff to Representative Cheryl Heinze                                                                                           
Alaska State Capitol                                                                                                            
Juneau, AK  99801-1182                                                                                                          
POSITION STATEMENT:  Presented HCR 29am for the sponsor                                                                       
                                                                                                                                
Ms. Janet McCabe                                                                                                                
Partners for Progress                                                                                                           
POSITION STATEMENT:  Supports HCR 29am                                                                                        
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
TAPE 04-48, SIDE A                                                                                                            
                                                                                                                                
CHAIR  RALPH   SEEKINS  called  the  Senate   Judiciary  Standing                                                             
Committee meeting  to order  at 8:05  a.m. Senators  Ogan, Ellis,                                                               
French and Chair  Seekins were present. The committee  took up HB
83.                                                                                                                             
                                                                                                                                
                                                                                                                                
           CSHB 83(JUD)-REVISED UNIFORM ARBITRATION ACT                                                                     
                                                                                                                                
CHAIR SEEKINS  asked members if  everyone had a chance  to review                                                               
the revised  uniform arbitration act bill.  All members signified                                                               
they had.                                                                                                                       
                                                                                                                                
SENATOR FRENCH moved  to pass CSHB 83(JUD) to  its next committee                                                               
of referral with its attached zero fiscal note.                                                                                 
                                                                                                                                
CHAIR  SEEKINS  announced  that  without  objection,  the  motion                                                               
carried.                                                                                                                        
                                                                                                                                
[See corrected motion made later in the meeting.]                                                                               
                                                                                                                                
                                                                                                                                
         SB 385-SECURITY;DIV. HOMELAND SECURITY/EMER. MGT                                                                   
                                                                                                                                
CHAIR SEEKINS  noted the  committee would take  up SB  385, which                                                               
was given an additional referral to the committee yesterday.                                                                    
                                                                                                                                
SENATOR FRED  DYSON, chair  of the  Senate Health,  Education and                                                               
Social Services  Committee, asked members to  consider a proposed                                                               
committee substitute, labeled version  I, as the working document                                                               
before the committee.                                                                                                           
                                                                                                                                
SENATOR OGAN  moved to  adopt version I  as the  working document                                                               
before the committee.                                                                                                           
                                                                                                                                
CHAIR  SEEKINS  announced that  version  I  was adopted  with  no                                                               
objection.                                                                                                                      
                                                                                                                                
SENATOR  DYSON told  members similar  legislation was  originally                                                               
introduced in the House but has  been "hung up" there for various                                                               
reasons. As  a result, the  Administration asked the  Senate HESS                                                               
Committee  to sponsor  this legislation.  He  thanked the  Senate                                                               
leadership for  expediting it. He said  the purpose of SB  385 is                                                               
twofold.  First,  it reflects  in  statute  the creation  of  the                                                               
Department of  Homeland Security  as a new  organization. Second,                                                               
it adds a  new category under which an emergency  can be declared                                                               
and emergency powers  used, that being in the case  of an eminent                                                               
threat of a  terrorist attack. He advised that SB  385 will grant                                                               
[the  governor  with]  emergency  powers to  address  a  credible                                                               
threat of an  attack. Senator Dyson informed  members that during                                                               
the Christmas  holiday, the  state received  credible information                                                               
about  a  planned attack  in  Valdez.  The Department  of  Public                                                               
Safety (DPS),  the Alaska  National Guard,  and the  Alaska State                                                               
Defense Force were mobilized for 20-plus days.                                                                                  
                                                                                                                                
SENATOR DYSON pointed out that as  a member of the Senate Finance                                                               
subcommittee on  the Department of Military  and Veterans Affairs                                                               
(DMVA), he was unable to  ask questions about DMVA's preparedness                                                               
for  dealing   with  a  terrorist  threat   without  compromising                                                               
security.  Therefore,  SB  385 allows  for  a  homeland  security                                                               
emergency   management   oversight    committee,   made   up   of                                                               
legislators. Its  meetings will  be closed and  committee members                                                               
will have  to pass security  clearances and  sign confidentiality                                                               
agreements,  similar to  the intelligence  oversight function  of                                                               
Congress. He said he must ask  for information to know whether or                                                               
not the Department of Homeland  Security has done an adequate job                                                               
of preparedness  but he sure would  not want our enemies  to know                                                               
that  information.   The  new  section  creating   the  oversight                                                               
committee was not in the House version of the bill.                                                                             
                                                                                                                                
SENATOR DYSON said in the work  done on the companion bill in the                                                               
House,  DMVA worked  through a  number  of jurisdictional  issues                                                               
with  DPS  and  the  Department   of  Transportation  and  Public                                                               
Facilities (DOTPF).  He believes all inter-agency  conflicts have                                                               
been solved  at this  point. SB  385 also  contains modifications                                                               
that  make Second  Amendment right  enthusiasts comfortable.   He                                                               
then  referred  to  the  explanation  of  changes  to  version  I                                                               
distributed to members and described those changes as follows.                                                                  
                                                                                                                                
     Section 2 is the new oversight committee and it's a                                                                        
     more extensive section than anticipated.                                                                                   
                                                                                                                                
     On page 9, line 16, the word "looking" was replaced                                                                        
     with the word "pertaining" for the sake of better                                                                          
     language.                                                                                                                  
                                                                                                                                
     On  page  9,  line  17,  a  provision  was  added  that                                                                    
     requires any actions taken by  the new department to be                                                                    
     subject  to  both   state  and  federal  constitutional                                                                    
     constraints.                                                                                                               
                                                                                                                                
CHAIR SEEKINS interjected  to ask if that means the  state is not                                                               
authorized to trample on anyone's civil rights.                                                                                 
                                                                                                                                
SENATOR DYSON said yes, but  under a declared state of emergency,                                                               
the  emergency powers,  for short  duration, are  excursions from                                                               
what are usually thought of as constitutional protections.                                                                      
                                                                                                                                
CHAIR SEEKINS  asked if  constitutional authorization  exists for                                                               
that but anything outside of that purview would be forbidden.                                                                   
                                                                                                                                
SENATOR DYSON  said that is  exactly right. He felt  the language                                                               
in  the bill  is unnecessary  but it  does no  harm and  makes it                                                               
clearer.                                                                                                                        
                                                                                                                                
SENATOR  DYSON  continued  his  explanation  of  the  changes  in                                                               
version I.                                                                                                                      
                                                                                                                                
     On page 14,  line 4, the word "terrorist"  was added so                                                                    
     that  it reads  "In the  event  of an  actual enemy  or                                                                    
     terrorist  attack  in  or  against   the  state,  or  a                                                                    
     credible  threat  of  an imminent  enemy  or  terrorist                                                                    
     attack,"                                                                                                                   
                                                                                                                                
CHAIR  SEEKINS asked  if "credible  threat of  imminent enemy  or                                                               
terrorist attack" is defined in the bill.                                                                                       
                                                                                                                                
SENATOR FRENCH noted that definition is on page 15.                                                                             
                                                                                                                                
CHAIR SEEKINS  pointed out  that three people  must agree  that a                                                               
credible threat exists  prior to any exercise  of these emergency                                                               
powers, according to the language on page 15, line 13.                                                                          
                                                                                                                                
SENATOR DYSON agreed.                                                                                                           
                                                                                                                                
{SENATOR THERRIAULT arrived at 8:17 a.m.]                                                                                       
                                                                                                                                
SENATOR FRENCH noted  according to that language  it is uncertain                                                               
that the three  people must agree but they  must communicate. The                                                               
adjutant  general must  consult with  the commissioner  of public                                                               
safety to  certify that  a credible  threat exists.  The governor                                                               
would  then  be empowered  to  make  a declaration  of  emergency                                                               
powers.                                                                                                                         
                                                                                                                                
CHAIR   SEEKINS  agreed   and  said   the  governor   cannot  act                                                               
unilaterally.                                                                                                                   
                                                                                                                                
SENATOR  OGAN  indicated  that  Legislative  Legal  and  Research                                                               
Services  finds  the  language  on   page  15,  line  11,  to  be                                                               
problematic because  the legislature cannot affect  the powers of                                                               
the  governor  with  a resolution  and  because  the  Legislative                                                               
Council has  interim authority for the  legislature. He suggested                                                               
delegating  that  power to  the  Legislative  Council during  the                                                               
interim. He  thought the drafter  was envisioning that  a special                                                               
session of the legislature would  be called to enact a concurrent                                                               
resolution  to extend  a state  of emergency  for longer  than 30                                                               
days.                                                                                                                           
                                                                                                                                
SENATOR DYSON agreed  and noted that he intended  to address that                                                               
issue. He asked  Senator Therriault his opinion of  the merits of                                                               
delegating  this authority  to  the  Legislative Council,  versus                                                               
calling a special session of the legislature.                                                                                   
                                                                                                                                
SENATOR THERRIAULT thought a level  of emergency that went beyond                                                               
30 days  would be  of such  a nature  that the  legislature could                                                               
meet in  special session.  He was uncertain  that all  members of                                                               
the legislature would be comfortable  extending all of that power                                                               
to a subgroup. He questioned  whether Senator Ogan's intent is to                                                               
allow the chair of the Legislative Council to take action.                                                                      
                                                                                                                                
SENATOR OGAN  said he put  that proposal  on the table  since the                                                               
Legislative Council has  the authority to do things  on behalf of                                                               
the legislature  during the  interim. He did  not intend  to give                                                               
that power to the chair of the Legislative Council.                                                                             
                                                                                                                                
CHAIR  SEEKINS  said  he  would   be  agreeable  to  giving  that                                                               
authority  to  the  Legislative Council  if  the  legislature  is                                                               
unable to convene in a special session.                                                                                         
                                                                                                                                
SENATOR DYSON  said first, members  should agree  the legislature                                                               
cannot   compel  the   governor's   action   with  a   concurrent                                                               
resolution,  so that  provision  should be  changed  so that  the                                                               
legislature would have to enact a law instead.                                                                                  
                                                                                                                                
SENATOR  OGAN moved  to  amend line  11,  to replace  "concurrent                                                               
resolution" with "law" as a conceptual amendment [Amendment 1].                                                                 
                                                                                                                                
SENATOR THERRIAULT objected and  asked what the legislature would                                                               
actually do to  approve the governor's action,  since the statute                                                               
would already be on the books.                                                                                                  
                                                                                                                                
SENATOR FRENCH thought  a two-line bill would  be introduced that                                                               
says pursuant to AS 26.20.040(b),  the legislature hereby extends                                                               
the declaration of  emergency made by the governor  on a specific                                                               
date for another 30 days.                                                                                                       
                                                                                                                                
SENATOR  THERRIAULT noted  the legislature  would  be enacting  a                                                               
temporary act.                                                                                                                  
                                                                                                                                
SENATOR  OGAN cautioned  that transportation  could be  a serious                                                               
problem. He  recalled that after  9/11, no planes  were permitted                                                               
to fly, which could impede the convening of a special session.                                                                  
                                                                                                                                
CHAIR  SEEKINS  noted if  the  situation  were  that bad,  it  is                                                               
unlikely that anyone  would object to the  governor extending the                                                               
emergency declaration.                                                                                                          
                                                                                                                                
SENATOR DYSON  commented, "Also, if  we thought the  governor was                                                               
off  the reservation  and doing  inappropriate  things, we  could                                                               
call ourselves into special session and  with a two or three line                                                               
bill, repeal  his authority to  do these things under  law and/or                                                               
repeal it for a specific period of time to stop those things."                                                                  
                                                                                                                                
CHAIR SEEKINS felt  that language creates a check  and balance to                                                               
make sure no governor can  extend those powers if the legislature                                                               
believes otherwise.                                                                                                             
                                                                                                                                
SENATOR  DYSON   repeated  the   legislature  could   repeal  the                                                               
governor's powers in a special session.                                                                                         
                                                                                                                                
SENATOR OGAN  noted the  Legislative Council  can call  a special                                                               
session.                                                                                                                        
                                                                                                                                
SENATOR FRENCH  referred to  the certification  process described                                                               
in  subsection (c)  on  page 15,  line 13,  and  asked if  anyone                                                               
discussed  what form  the  certification would  take,  such as  a                                                               
document or oath from the adjutant general to the governor.                                                                     
                                                                                                                                
MR.   DAVID  LIEBERSBACH,   acting  assistant   commissioner  for                                                               
homeland  security  and director  of  the  Division of  Emergency                                                               
Services  (DES),  Department  of   Military  &  Veterans  Affairs                                                               
(DMVA), gave the following answer.                                                                                              
                                                                                                                                
     Depending on the  time limits I guess I  would say, and                                                                    
     how rapidly things are occurring,  it could simply be a                                                                    
     matter   of   consulting   by  phone   with   follow-up                                                                    
     documentation. Generally  when we do these  - and we're                                                                    
     most  familiar with  doing them  in emergency  disaster                                                                    
     declarations where  we pull together a  disaster policy                                                                    
     cabinet  that meets  within a  few hours  to a  couple-                                                                    
     three days  of the  request for  a declaration  to give                                                                    
     advice to the governor, and  then it's forwarded to the                                                                    
     governor  with  a recommendation  yea  or  nay and  the                                                                    
     governor can  of course  decide to  declare or  not. He                                                                    
     has that authority.                                                                                                        
                                                                                                                                
     This is put  in because we would anticipate  we need to                                                                    
     move  fairly  quickly,  particularly if  we  have  good                                                                    
     intelligence  as  we  did just  prior  to  the  holiday                                                                    
     season  for  Valdez.  We  had  classified  intelligence                                                                    
     that, even  at this  point, has  not been  made totally                                                                    
     public by  the federal  government, but  we had  a very                                                                    
     serious threat in  a couple places in  the country, one                                                                    
     of them being Valdez.                                                                                                      
                                                                                                                                
     So  what this  does is  it -  as opposed  to using  the                                                                    
     disaster   policy   cabinet,   which  in   fact   isn't                                                                    
     established in statute or anything,  it's just a system                                                                    
     set up through the  Department of Military and Veterans                                                                    
     Affairs to  provide a check  and balance, if  you will,                                                                    
     to  disaster  declarations,  but a  check  and  balance                                                                    
     within the  administration. The commissioner  of public                                                                    
     safety and  the commissioner of military  and veterans'                                                                    
     affairs  would  confer  because   we  don't  know  down                                                                    
     through which lane we would  get the intelligence. They                                                                    
     would discuss  and determine it's  credible and  make a                                                                    
     recommendation  to  the  governor. The  governor  could                                                                    
     then decide to invoke this type of thing.                                                                                  
                                                                                                                                
     We would see it that  we would probably very quickly as                                                                    
     we  start  moving  forward through  whatever  elements,                                                                    
     whether  it's law  enforcement or  military  or all  or                                                                    
     other agencies of government, we  would also be pulling                                                                    
     together a disaster policy  cabinet, a broader cabinet,                                                                    
     to discuss the situation  and make sure they understood                                                                    
     and  were  onboard. But  we  feel  that there  has  the                                                                    
     potential  for emergency  that  we need  to  do this  a                                                                    
     little quicker  than we  do even  some of  our disaster                                                                    
     declarations  where we  already have  the authority  to                                                                    
     start moving  forward within the department  before the                                                                    
     declaration  is  actually made.  We  can  do a  certain                                                                    
     amount of  things and make  certain commitments  - life                                                                    
     safety, etcetera.  This is  a little  different because                                                                    
     the event hasn't  happened. We just have  the threat of                                                                    
     an event.                                                                                                                  
                                                                                                                                
SENATOR FRENCH said his interpretation is that [the process]                                                                    
depends on the situation and on how fast breaking it is but that                                                                
Mr. Liebersbach imagines in most cases it will be done orally.                                                                  
                                                                                                                                
MR. LIEBERSBACH  thought the majority of  certifications would be                                                               
documented up front because generally,  DMVA has the intelligence                                                               
information far enough ahead to  use the disaster policy cabinet.                                                               
This provision will allow an oral certification in a fast-                                                                      
breaking situation.                                                                                                             
                                                                                                                                
CHAIR SEEKINS asked  if this provision would only  come into play                                                               
when  a credible  threat of  attack occurs  because this  process                                                               
will be unnecessary if the state is under attack.                                                                               
                                                                                                                                
MR. LIEBERSBACH agreed  and said if the state is  under attack, a                                                               
state of  disaster emergency  would be  declared under  AS 26.23,                                                               
which would precipitate action.                                                                                                 
                                                                                                                                
SENATOR FRENCH asked if SB  385 will also cover natural disasters                                                               
and  whether this  legislation is  an attempt  to get  "everybody                                                               
under one umbrella."                                                                                                            
                                                                                                                                
SENATOR DYSON said  that is correct. SB 385 only  adds the threat                                                               
of credible terrorist activity to existing law.                                                                                 
                                                                                                                                
MR.  LIEBERSBACH pointed  out that  AS 26.20,  the civil  defense                                                               
statute, was enacted in 1951. Title  26 is within DMVA; AS 26.23,                                                               
deals with natural and accidental  human caused disasters and was                                                               
added  later  on.  SB  385   addresses  a  threat  or  attack  by                                                               
terrorists.                                                                                                                     
                                                                                                                                
CHAIR  SEEKINS  redirected  members'  attention  to  Amendment  1                                                               
[replacing "concurrent resolution" with  "law"]. He noted with no                                                               
continued objection, Amendment 1 was adopted.                                                                                   
                                                                                                                                
CHAIR  SEEKINS  affirmed  that   members  were  comfortable  with                                                               
Section 9(c) on page 15, line 13.                                                                                               
                                                                                                                                
SENATOR DYSON  continued with his  description of the  changes to                                                               
version I and asked Mr. Liebersbach  for a definition of the word                                                               
"clearable"  on page  2,  line 29,  which  pertains to  committee                                                               
members' security clearance.                                                                                                    
                                                                                                                                
CHAIR  SEEKINS piped  in that  means able  to obtain  or able  to                                                               
clear.                                                                                                                          
                                                                                                                                
SENATOR FRENCH agreed  but asked how one would know  a member can                                                               
be  cleared. He  expressed concern  that the  clearance would  be                                                               
post-dated  since  the committee  might  not  be formed  until  a                                                               
threat occurs.  He felt the  language "back-fills"  and suggested                                                               
looking at similar language used by other states.                                                                               
                                                                                                                                
SENATOR  DYSON felt  that  language is  a  practical problem  and                                                               
noted that  Mr. Liebersbach could  probably confirm that  many of                                                               
the people in the homeland  security department have not yet been                                                               
cleared and  are operating on  a provisional basis.  His question                                                               
was whether  the word "clearable"  is definitive enough  to quell                                                               
any legal issues.                                                                                                               
                                                                                                                                
SENATOR  OGAN  suggested  that an  entry-level  background  check                                                               
might occur - such as checking  ASPIN for a history of arrests or                                                               
convictions. He thought  a person involved in  a subversive group                                                               
would not  qualify to  be in the  legislature anyway  because the                                                               
constitution  provides  grounds  for  removal  of  a  person  who                                                               
advocates the overthrow of the government.                                                                                      
                                                                                                                                
SENATOR FRENCH  said that some  of his colleagues are  working at                                                               
the  U.S. Attorney  General's Office  and underwent  an extensive                                                               
background check  by the FBI, which  included personal interviews                                                               
with acquaintances. He  thought to get cleared at  a secret level                                                               
would require a step beyond that.                                                                                               
                                                                                                                                
MR.  LIEBERSBACH   told  members   there  are  three   levels  of                                                               
clearance. The  top level  is known as  top secret  and clearance                                                               
for that level  takes about 18 months. He said  most of what DMVA                                                               
will need can be achieved with  the next level of clearance - the                                                               
secret level. He noted that  staff at the U.S. Attorney General's                                                               
Office get top  secret clearance, which is why the  process is so                                                               
exhaustive. He added  the difference between those  two levels is                                                               
that top secret  clearance allows a person to know  the source of                                                               
intelligence information.  The state  uses the  federal standards                                                               
for clearance,  with the exception  of a standard referred  to as                                                               
"law-enforcement  sensitive." That  clearance if  fairly easy  to                                                               
get and  does not  require a background  check; it  only requires                                                               
the  state troopers  to sign  off on  it. He  then described  the                                                               
procedure  for  getting secret  clearance  and  said the  interim                                                               
clearance provided during that process  is probably the origin of                                                               
the word "clearable" in SB 385.                                                                                                 
                                                                                                                                
CHAIR SEEKINS asked  if requiring a legislator to  have a federal                                                               
security  clearance at  the secret  level or  an interim  federal                                                               
security  clearance  to  serve on  the  committee  would  address                                                               
members' concerns.                                                                                                              
                                                                                                                                
MR. LIEBERSBACH believed it would address all concerns.                                                                         
                                                                                                                                
SENATOR ELLIS  moved to  adopt Amendment 2,  which would  read as                                                               
follows.                                                                                                                        
                                                                                                                                
                       A M E N D M E N T  2                                                                                 
                                                                                                                                
     On page 2, line 29:                                                                                                        
                                                                                                                                
        After "security clearance" insert "or interim federal                                                                   
     security"                                                                                                                  
                                                                                                                                
     Delete "or must be clearable at the secret level"                                                                          
                                                                                                                                
CHAIR  SEEKINS  noted that  without  objection,  Amendment 2  was                                                               
adopted.                                                                                                                        
                                                                                                                                
SENATOR  DYSON  directed  members   to  a  letter  from  Jennifer                                                               
Rudinger  of  the Alaska  Civil  Liberties  Union, in  which  she                                                               
raised some interesting questions.                                                                                              
                                                                                                                                
CHAIR   SEEKINS  asked   Senator  Dyson   to  proceed   with  his                                                               
description of the  changes in version I and to  address the ACLU                                                               
letter afterward.                                                                                                               
                                                                                                                                
SENATOR DYSON continued:                                                                                                        
                                                                                                                                
     Chair   Seekins   suggested   the   next   change.   It                                                                    
     straightens out  an inaccuracy in the  House version by                                                                    
     adding  the words  "unincorporated village"  and brings                                                                    
     that  provision  into  conformity with  existing  state                                                                    
     law.                                                                                                                       
                                                                                                                                
CHAIR SEEKINS noted that  unincorporated community was considered                                                               
to be a political subdivision  of the state, which it technically                                                               
is not.                                                                                                                         
                                                                                                                                
SENATOR DYSON continued.                                                                                                        
                                                                                                                                
     On  page  22,  a  new subsection  was  added  that                                                                         
     allows  the  legislative   committee  to  organize                                                                         
     quickly.  The  Senate  HESS  version  allowed  the                                                                         
     oversight   committee   to  organize   after   the                                                                         
     beginning   of  the   next  legislative   session;                                                                         
     version  I  allows it  to  organize  after SB  385                                                                         
     becomes  law. SB  385 has  an immediate  effective                                                                         
     date.                                                                                                                      
                                                                                                                                
SENATOR DYSON summarized that covers all of the changes                                                                         
between the Senate HESS version and version I as amended.                                                                       
                                                                                                                                
CHAIR SEEKINS announced a brief recess at 8:50 a.m. to                                                                          
allow members to review the letter from the ACLU.                                                                               
                                                                                                                                
Upon reconvening at 8:55 a.m., CHAIR SEEKINS asked Senator                                                                      
Dyson to comment on the ACLU letter.                                                                                            
                                                                                                                                
SENATOR DYSON commented that Ms.  Rudinger has been a friend                                                                    
that has  provided valuable input  over the past  few years.                                                                    
In  her letter  she  mentions several  times  that the  ACLU                                                                    
needs time  to further  analyze SB 385.  She said  she would                                                                    
like to  see it made clear  that the committee has  power to                                                                    
request information  from the  governor. Senator  Dyson said                                                                    
he  asked  Mr.  Liebersbach  if he  could  conceive  of  any                                                                    
information the governor might not  want to hand over to the                                                                    
oversight committee and he said no.                                                                                             
                                                                                                                                
SENATOR DYSON  proposed that  on page 5,  line 3,  the words                                                                    
"the  governor" be  inserted  right after  (2),  so that  it                                                                    
would read:                                                                                                                     
                                                                                                                                
     (2) the governor, other agencies or persons...                                                                             
                                                                                                                                
CHAIR  SEEKINS suggested  adding "the  governor" immediately                                                                    
after (1) on the same page, line 1, instead.                                                                                    
                                                                                                                                
SENATOR  DYSON questioned  whether  the  Alaska division  of                                                                    
homeland security includes the Department of Public Safety.                                                                     
                                                                                                                                
MR. LIEBERSBACH said it does not.                                                                                               
                                                                                                                                
CHAIR SEEKINS  suggested adding DPS  and said he  would feel                                                                    
more  comfortable   if  DPS  was  also   responsive  to  the                                                                    
committee.                                                                                                                      
                                                                                                                                
MR.  LIEBERSBACH  noted that  DPS  would  be included  under                                                                    
"other agencies" in subsection 2,  as would DOTPF, DHSS, and                                                                    
DEC.                                                                                                                            
                                                                                                                                
TAPE 04-48, SIDE B                                                                                                            
                                                                                                                                
CHAIR SEEKINS asked members if  adding "the governor" before                                                                    
"the Alaska division of homeland  security" [Page 5, line 1]                                                                    
would address the concern [Amendment 3].                                                                                        
                                                                                                                                
SENATOR THERRIAULT moved to adopt Amendment 3.                                                                                  
                                                                                                                                
SENATOR DYSON informed members that  he is attempting to get                                                                    
an  answer   to  the  question  of   what  restrictions  and                                                                    
additional  authorities state  and  federal governments  are                                                                    
provided  with under  an emergency  declaration. He  said he                                                                    
believes  the  government  can hold  and  seize  people  for                                                                    
limited  periods  of  time  without  taking  them  before  a                                                                    
magistrate within a  certain number of hours. He  said he is                                                                    
eager that  this bill get to  the House soon because  of the                                                                    
late date  in the session but  he will do everything  he can                                                                    
to get that  information in writing for  all senators before                                                                    
this bill gets to the Senate floor.                                                                                             
                                                                                                                                
SENATOR OGAN  expressed concern  that SB  385 will  give the                                                                    
governor  the authority  to waive  due process  and probable                                                                    
cause for seizure of property and arrests. He added:                                                                            
                                                                                                                                
     The concerns I've  heard - Don Young  came to talk                                                                         
     to our  majority and he  talked about the  guy who                                                                         
     was arrested  for having [indisc.]. He  was a U.S.                                                                         
     citizen. He  was detained and he  wasn't given any                                                                         
     due process and locked up  for six or eight months                                                                         
     or  whatever -  no trial  and all  that and  heck,                                                                         
     there's  probably a  couple thousand  Alaskans out                                                                         
     there that  have eight pounds  of powder  and, you                                                                         
     know,  they're  good, red-blooded  patriotic  guys                                                                         
     who'd  probably  be  volunteering  for  the  state                                                                         
     militia if  we needed them.  It'd be good  to have                                                                         
     them  if they've  got that  much  powder and  that                                                                         
     many guns.  So if there's  a way to put  some kind                                                                         
     of a circuit  breaker in there that  - okay, we're                                                                         
     going  to   suspend  this  due  process   or  that                                                                         
     probable cause  thing for  awhile because  of this                                                                         
     emergency  but  make  sure  that  due  process  is                                                                         
     afforded to  them that they  just can't -  if they                                                                         
     seize your  property under this  type of  a thing,                                                                         
     that you have the due  process in the court to say                                                                         
     wait a  minute, the  seizure was  out of  line, or                                                                         
     they  have the  ability to  go before  a judge  to                                                                         
     make sure their due  process rights are protected.                                                                         
     I haven't had time to  analyze the CS to make sure                                                                         
     those  things  are  covered  or   if  we  want  to                                                                         
     specifically bring those things up so...                                                                                   
                                                                                                                                
SENATOR DYSON  responded that it  is his  understanding that                                                                    
all of these powers already  exist; SB 385 only expands that                                                                    
authority under  the credible threat of  an imminent attack.                                                                    
That does not  remove his concerns about  the existing power                                                                    
these agencies have  and he feels their existing  power is a                                                                    
legitimate  concern.  He repeated  that  he  would get  that                                                                    
information  for   committee  members.  Second,   this  bill                                                                    
requires the agency to pay  reasonable rent for any property                                                                    
seized, such as a front-end  loader to build a roadblock. He                                                                    
said he likes the fact  that the legislature can call itself                                                                    
into session  and stop  what the  governor is  doing because                                                                    
that  could  place a  significant  limit  on the  governor's                                                                    
ability to supersede individual rights.                                                                                         
                                                                                                                                
CHAIR SEEKINS  said he is  comfortable that SB 385  does not                                                                    
expand those powers  but agreed it is important  to find out                                                                    
what they are in terms of the federal authorization.                                                                            
                                                                                                                                
SENATOR ELLIS  referred to  section 10  on page  15, traffic                                                                    
control,  and said  he  perceives that  as  an expansion  of                                                                    
power. He  pointed out that  in other parts of  the country,                                                                    
roadblocks  and traffic  checkpoints  for criminal  activity                                                                    
like  drunk driving  have been  very  controversial. He  was                                                                    
unsure whether  the Alaska Supreme  Court has ruled  on that                                                                    
activity  in Alaska.  He said  he  understands that  traffic                                                                    
control  after  a natural  disaster  or  a terrorist  attack                                                                    
would  be a  matter course,  but it  makes him  anxious that                                                                    
roadblocks  could  be  established   for  the  reason  of  a                                                                    
perceived threat.  He asked Senator  Dyson to speak  to what                                                                    
would be allowed in that situation.                                                                                             
                                                                                                                                
SENATOR DYSON said  roadblocks were set up on  the road into                                                                    
Valdez  over the  holidays  because of  the  threat. SB  385                                                                    
would  give the  state agencies  authority to  do what  they                                                                    
did. It  is his  understanding that DPS  and DOTPF  are very                                                                    
concerned about  that issue, and  the provision in  the bill                                                                    
is a compromise.                                                                                                                
                                                                                                                                
SENATOR ELLIS  asked if this  provision would allow  that to                                                                    
happen in  the general vicinity or  whether roadblocks could                                                                    
be set up all over the state.                                                                                                   
                                                                                                                                
SENATOR DYSON  guessed that  would depend  on the  nature of                                                                    
the threat.                                                                                                                     
                                                                                                                                
MR.  LIEBERSBACH  answered  that  the authority  to  set  up                                                                    
checkpoints and close roads is  already in statute and rests                                                                    
with  DPS and  DOTPF. All  SB 385  says is  the division  of                                                                    
homeland  security  has the  authority  to  work with  those                                                                    
departments. When  the checkpoints were  set up on  the road                                                                    
to  Valdez, DPS  did not  have the  staff to  do the  job so                                                                    
National Guard  personnel were used; however,  DMVA does not                                                                    
have  that authority.  He said  the actions  taken would  be                                                                    
specific to  the threat  and the only  reason DMVA  would do                                                                    
anything on a large-scale is  because the state is large. If                                                                    
the threat were to oil  field facilities, DMVA would want to                                                                    
put  a checkpoint  on  the Dalton  Highway,  which covers  a                                                                    
large area, as well as to the Valdez terminal.                                                                                  
                                                                                                                                
CHAIR SEEKINS asked if checkpoints  have already been set up                                                                    
along the Dalton Highway.                                                                                                       
                                                                                                                                
MR. LIEBERSBACH  said they were,  right after 9/11,  as well                                                                    
as over  the holidays because  a general threat was  made at                                                                    
that time.                                                                                                                      
                                                                                                                                
SENATOR OGAN said he would  be more comfortable with Section                                                                    
10  if the  word "illegal"  was added  to page  16, line  5,                                                                    
before the word "weapons" [Amendment 4].                                                                                        
                                                                                                                                
CHAIR  SEEKINS asked  what would  happen if  a person  had a                                                                    
trunk full of legal weapons.                                                                                                    
                                                                                                                                
SENATOR  OGAN  said  that  a  trooper  would  have  to  find                                                                    
probable  cause  that  the  vehicle  occupants  intended  to                                                                    
engage  in  criminal  activity.   He  then  moved  to  adopt                                                                    
Amendment 4.                                                                                                                    
                                                                                                                                
SENATOR DYSON commented that the  state just went through an                                                                    
expensive  exercise  to prove  that  a  338 Winchester  will                                                                    
puncture the pipeline. So, if  there is a credible threat on                                                                    
the pipeline and  a person is driving through  with a weapon                                                                    
that  is capable  of puncturing  the pipeline,  it would  be                                                                    
important to  give agency staff  the authority to  deal with                                                                    
that weapon.                                                                                                                    
                                                                                                                                
CHAIR SEEKINS asked  Lt. Storey if DPS has  the authority to                                                                    
put up roadblocks or close roads right now.                                                                                     
                                                                                                                                
LT.  AL  STOREY,  Alaska State  Troopers  (AST),  said  that                                                                    
authority actually lies with DOTPF.                                                                                             
                                                                                                                                
CHAIR SEEKINS asked  if SB 385 expands that  authority or if                                                                    
it is a  sharing of that authority in  coordination with the                                                                    
division of homeland security.                                                                                                  
                                                                                                                                
LT. STOREY  said there is  some authority that falls  to DPS                                                                    
under   common  law   because  DPS   can   close  roads   in                                                                    
extraordinary circumstances  for short  periods of  time. He                                                                    
deferred to  an attorney  to answer  whether SB  385 expands                                                                    
that authority.                                                                                                                 
                                                                                                                                
SENATOR  ELLIS noted  that fertilizer  and  diesel fuel  are                                                                    
legal; however they  would be highly suspicious  in the same                                                                    
truck together.                                                                                                                 
                                                                                                                                
SENATOR OGAN said  he would interpret legal  weapons to mean                                                                    
weapons used for  personal protection - guns.  He noted that                                                                    
Section 10 also speaks  to explosives, chemicals, biological                                                                    
agents or  other instruments  capable of  causing widespread                                                                    
or severe  injury. He  said his intent  with Amendment  4 is                                                                    
that it apply to weapons used for personal protection.                                                                          
                                                                                                                                
9:20 a.m.                                                                                                                       
                                                                                                                                
LT. STOREY said the term  "illegal weapons" is a quasi-legal                                                                    
term.  He reads  that term  to mean  weapons that  have been                                                                    
altered or weapons that have  been made fully automatic when                                                                    
they're not supposed  to be. He said the hope  of Section 10                                                                    
was that the  troopers could be looking for  any weapon that                                                                    
could  be used  for  illegal purposes  inside the  contained                                                                    
area. As the  team leader of the Valdez  checkpoints, it was                                                                    
everyone's hope  to keep  all weapons out  of the  area they                                                                    
were  protecting.  Therefore,  had  a person  arrived  at  a                                                                    
checkpoint with weapons, they would  have been denied access                                                                    
to  the area  and  would  have turned  around.  He said  DPS                                                                    
worked  with DMVA  on  this language;  it  will not  violate                                                                    
people's constitutional rights.                                                                                                 
                                                                                                                                
SENATOR FRENCH asked  if the checkpoints would be  set up in                                                                    
conjunction with a  finding under Section 9,  only after the                                                                    
credible threat has been certified.                                                                                             
                                                                                                                                
LT. STOREY deferred to DMVA but  said that is DMVA's hope in                                                                    
this process.  Once a threat  is determined to  be credible,                                                                    
the protocol to  set up checkpoints and  barriers would kick                                                                    
in.                                                                                                                             
                                                                                                                                
SENATOR FRENCH  noted that the  pipeline parallels  the Haul                                                                    
Road as well as vast  stretches of the Alaska Highway, which                                                                    
could present  an entirely different situation  than Valdez,                                                                    
and  cause major  disruptions for  people. He  believes most                                                                    
people  could understand  the  restriction  if this  applies                                                                    
only for  30 days, but he  said he would not  be comfortable                                                                    
with Section  10 unless it  requires a  certification first.                                                                    
He suggested tying Section 10 back to Section 9(c).                                                                             
                                                                                                                                
SENATOR OGAN  stated that he  disagrees with  the philosophy                                                                    
that all  weapons need to be  banned from an area.  He noted                                                                    
that any  gun could  cause severe injury  to a  person (page                                                                    
16, line 70) so that language  could turn any Alaskan into a                                                                    
terrorist.                                                                                                                      
                                                                                                                                
SENATOR THERRIAULT  noted that  a lot  of people  live along                                                                    
the  Richardson Highway  to Valdez.  He questioned  if there                                                                    
was  an allegation  that someone  was going  to use  a high-                                                                    
powered rifle  to shoot a  hole in the pipeline,  what would                                                                    
be  done about  the people  who live  along the  highway. He                                                                    
thought  Amendment   4  is   reasonable  because   guns  are                                                                    
prevalent in Alaska society.                                                                                                    
                                                                                                                                
LT. STOREY  said that  would only  happen when  the governor                                                                    
determines a sufficiently high threat of attack.                                                                                
                                                                                                                                
CHAIR  SEEKINS  asked  for  the  definition  of  an  illegal                                                                    
weapon.                                                                                                                         
                                                                                                                                
LT. STOREY said  his interpretation of an  illegal weapon is                                                                    
perhaps a  shotgun with  the barrel cut  off, or  one that's                                                                    
been converted into a fully  automatic weapon. He maintained                                                                    
that term does not fit well in the bill.                                                                                        
                                                                                                                                
SENATOR OGAN  suggested deleting  the word  "or" on  line 7,                                                                    
page  16  instead,  so  that  it  reads  weapons,  etcetera,                                                                    
capable of  "causing widespread, severe injury...."  He felt                                                                    
that would exclude the average Alaskan.                                                                                         
                                                                                                                                
MR.  LIEBERSBACH informed  members that  the troopers  could                                                                    
not seize  weapons. Staff would  be looking for  people with                                                                    
weapons who might be of concern.                                                                                                
                                                                                                                                
CHAIR SEEKINS noted that inserting  the word "illegal" would                                                                    
keep the  troopers from searching  every vehicle  that comes                                                                    
through a  roadblock so it will  not harm the intent  of the                                                                    
bill.                                                                                                                           
                                                                                                                                
MR. LIEBERSBACH  agreed and  felt the  deletion of  the word                                                                    
"or," suggested by Senator Ogan would do no harm either.                                                                        
                                                                                                                                
SENATOR OGAN disagreed  that the troopers would  not be able                                                                    
to seize weapons  because the language on page  14, line 11,                                                                    
reads:                                                                                                                          
                                                                                                                                
     To seize, take, or condemn property if, and only                                                                           
     to the extent that, the governor determines that                                                                           
     the property  is needed for the  protection of the                                                                         
     public                                                                                                                     
                                                                                                                                
Therefore,  the troopers  could seize  guns in  the name  of                                                                    
public protection.                                                                                                              
                                                                                                                                
CHAIR SEEKINS  said he  reads that to  mean if  the troopers                                                                    
needed his rifle to shoot at the enemy, they would take it.                                                                     
                                                                                                                                
SENATOR  DYSON noted  the  definition  of "illegal  weapons"                                                                    
might change, depending on whether  President Bush signs the                                                                    
extension of the assault weapons ban.                                                                                           
                                                                                                                                
CHAIR  SEEKINS  asked Senator  Ogan  if  his intent  was  to                                                                    
withdraw Amendment 4 or to amend it.                                                                                            
                                                                                                                                
SENATOR OGAN  moved to  amend Amendment 4  to drop  the word                                                                    
"or"  between the  words "widespread"  and "severe"  on page                                                                    
16,  line 7.  He then  said,  "The intent  is that  ordinary                                                                    
citizens  for  protection  of  themselves  can  still  carry                                                                    
weapons  but   if  they  have  enough   weapons  and  enough                                                                    
firepower to  cause widespread severe  injury to  persons or                                                                    
property, then that's  a good reason to turn them  back at a                                                                    
checkpoint."                                                                                                                    
                                                                                                                                
CHAIR SEEKINS  noted that without objection,  Amendment 4 as                                                                    
amended was adopted. He then announced an at-ease.                                                                              
                                                                                                                                
TAPE 04-49, SIDE A                                                                                                            
                                                                                                                                
CHAIR  SEEKINS announced  the  committee  would take  public                                                                    
testimony.                                                                                                                      
                                                                                                                                
MR.  JIM BUTLER,  an attorney  from Kenai,  told members  he                                                                    
works primarily in the area  of incident management and that                                                                    
he  appreciated hearing  the committee  debate  some of  the                                                                    
perplexing   issues   surrounding  homeland   security   and                                                                    
creating checks  and balances within  that system.  He asked                                                                    
to offer some  general ideas to help  streamline the overall                                                                    
size of the legislation. He stated:                                                                                             
                                                                                                                                
     When the committee continues to  look at the issue                                                                         
     of  oversight, it  might want  to take  a look  at                                                                         
     [AS]  26.23.025,   which  currently   defines  the                                                                         
     relationship between the  legislature and disaster                                                                         
     emergency. It  seems like it  provides a  tool for                                                                         
     the  legislature to  have oversight  and, perhaps,                                                                         
     without having  to go through  the whole  issue of                                                                         
     security  clearances for  legislators and  perhaps                                                                         
     staff who  get involved. It might  streamline that                                                                         
     process.                                                                                                                   
                                                                                                                                
     The  other is  the issue  related to,  in general,                                                                         
     the role  of where a local  jurisdiction fits into                                                                         
     the  equation. I  understand  from  the bill  that                                                                         
     there's  a requirement  for the  homeland security                                                                         
     component  of the  new division,  as  well as  the                                                                         
     emergency  management  component,  to  have  plans                                                                         
     that the locals would be  involved. I can tell you                                                                         
     from  experience that  the general  approach today                                                                         
     is that  most local  emergencies are managed  on a                                                                         
     local level first but  the state provides support.                                                                         
     That   support  is   typically  coordination   and                                                                         
     funding and  so I  think one of  the things  to be                                                                         
     aware of  is as we  start to talk about  the state                                                                         
     and the  role of emergency management,  as opposed                                                                         
     to emergency  services, there'd be [sic]  the risk                                                                         
     of  having  some  confusion about  whether  they'd                                                                         
     provide  coordination or  whether they'd  actually                                                                         
     show up  and provide management  responsibility on                                                                         
     the ground.                                                                                                                
                                                                                                                                
     I  also  think  that  if  the  committee  has  the                                                                         
     opportunity - I don't  know if it's something that                                                                         
     they've had  background on - for  the committee to                                                                         
     look at  the Administrative  Order 170,  which was                                                                         
     promulgated several years ago  and talks about the                                                                         
     state  developing an  emergency management  system                                                                         
     and you might want to consider how that fits in.                                                                           
                                                                                                                                
     I understand  Mr. Chairman and the  committee that                                                                         
     you're  probably getting  short on  time. There'll                                                                         
     be some other opportunities to  look at this as it                                                                         
     moves through so I'll cut  my comments there and I                                                                         
     appreciate the opportunity to testify.                                                                                     
                                                                                                                                
MR.  DAVID  GIBBS,  the  emergency   manager  at  the  Kenai                                                                    
Peninsula Borough,  told members  that many of  his concerns                                                                    
echo Mr. Butler's concerns. SB  385 is a substantial rewrite                                                                    
of the Alaska Disaster Act,  which, in his view, changes the                                                                    
responsibilities of local  jurisdictions. SB 385 essentially                                                                    
gives the  new Department  of Homeland  Security substantial                                                                    
new powers,  some of which  are vague. He drew  attention to                                                                    
the language on  page 10, line 17-20,  and expressed concern                                                                    
that language is vague.  He questioned whether "information"                                                                    
refers to memos,  faxes, e-mail messages and  felt a clearer                                                                    
definition  is  necessary.  He also  felt  the  bill  should                                                                    
define  the  authority of  the  new  Department of  Homeland                                                                    
Security  for the  sake of  those  working in  the field  of                                                                    
emergency management.                                                                                                           
                                                                                                                                
CHAIR SEEKINS  thanked both  participants and  closed public                                                                    
testimony.                                                                                                                      
                                                                                                                                
SENATOR FRENCH  told members his  lingering concern  is with                                                                    
the  traffic control  section of  the bill  and he  asked to                                                                    
hear from  a representative  from the  Department of  Law to                                                                    
get  more information  about the  circumstances under  which                                                                    
roadblocks  could be  set up  and the  steps the  government                                                                    
would have to go through before  some of these powers can be                                                                    
exercised. He then said that  unless he hears otherwise, his                                                                    
desire   to   link   the   establishments   of   roadblocks,                                                                    
particularly  on   areas  like  the  Richardson   or  Dalton                                                                    
Highways that  are used regularly,  to the declaration  of a                                                                    
credible threat of imminent danger in Section 9.                                                                                
                                                                                                                                
CHAIR  SEEKINS  asked  Mr. Liebersbach  to  comment  on  the                                                                    
question of emergency coordination versus management.                                                                           
                                                                                                                                
MR. LIEBERSBACH  responded that  it's all  the same  to him.                                                                    
The laws  of the  state clearly  put the  responsibility and                                                                    
authority to  manage disasters and emergencies  at the local                                                                    
level.  DMVA has  no desire  to take  that on  at the  state                                                                    
level.  During  disasters  and emergencies,  it  sits  as  a                                                                    
support, unless no  local government exists in  an area but,                                                                    
even in those cases, DMVA  works with a local tribal council                                                                    
or  entity.  DMVA  is not  a  first-responder  organization.                                                                    
Regarding the change in the  name from emergency services to                                                                    
management, he said  that term is used by  almost all states                                                                    
in the country.  He clarified that SB 385 will  not create a                                                                    
new  department;  it  will create  a  division  of  homeland                                                                    
security  within DMVA.  Currently, two  divisions have  been                                                                    
established: the  division of emergency services  and EO 203                                                                    
established  the  division  of  homeland  security  and  the                                                                    
office of  homeland security and emergency  services. SB 385                                                                    
will eliminate  that office and  collapse the  two divisions                                                                    
into one  division, which is  how things are  operating now.                                                                    
Instead  of   having  an  assistant  commissioner   and  two                                                                    
division directors,  DMVA will  have one  division director.                                                                    
The name change  from the division of  emergency services to                                                                    
the division  of homeland security and  emergency management                                                                    
is  necessary  because  of   the  heightened  visibility  of                                                                    
homeland  security,  which   the  state's  federal  partners                                                                    
expect to see from all of the states.                                                                                           
                                                                                                                                
CHAIR  SEEKINS   said,  in  response  to   Senator  French's                                                                    
concern, subparagraph (2) on page  15, line 30, says the new                                                                    
department in coordination with  DPS and DOTPF can establish                                                                    
and  operate checkpoints  for roadways  that serve  critical                                                                    
property or  facilities when the governor  determines that a                                                                    
sufficiently high threat  of attack exists. He  asked if the                                                                    
committee wants the  procedure in Section 9 to  be in effect                                                                    
to  establish  roadblocks,  i.e.  coordination  between  the                                                                    
governor  and the  commissioners of  the two  departments or                                                                    
whether  the governor  should have  the singular  ability to                                                                    
establish  those checkpoints.  He then  elaborated that  his                                                                    
question  is  whether to  allow  the  governor to  establish                                                                    
checkpoints at a  lower level where there  is a sufficiently                                                                    
high threat  of a terrorist  attack or whether  the governor                                                                    
should have  to meet  the standard of  a credible  threat of                                                                    
imminent enemy  or terrorist attack. He  said personally, he                                                                    
has  no  problem  allowing  the   governor  to  establish  a                                                                    
checkpoint for  a reasonable  period of  time leading  up to                                                                    
the establishment of a credible threat.                                                                                         
                                                                                                                                
SENATOR OGAN  thought the committee  had gone a long  way in                                                                    
putting sideboards and  checks and balances on  the bill. He                                                                    
thought  the public  would  be howling  if  it believed  the                                                                    
governor  was  going  beyond what  was  reasonable  and  the                                                                    
legislature could call itself into special session.                                                                             
                                                                                                                                
CHAIR SEEKINS  moved to insert  on page 16, line  1, between                                                                    
"of" and "attack" "enemy or terrorist" [Amendment 5].                                                                           
                                                                                                                                
SENATOR FRENCH  objected for the  purpose of  discussion. He                                                                    
said  although he  doesn't have  any particular  "beef" with                                                                    
Amendment 5,  it does  not address  his concern  about tying                                                                    
the  establishment of  roadblocks back  to emergency  powers                                                                    
granted  in   Section  9.  He   said  the   governor  could,                                                                    
singularly, have his agents set  up roadblocks for unlimited                                                                    
duration under the bill. He then withdrew his objection.                                                                        
                                                                                                                                
CHAIR  SEEKINS announced  that Amendment  5 was  adopted. He                                                                    
then  asked  if the  committee  wanted  to tie  the  traffic                                                                    
control provision into any timeframe.                                                                                           
                                                                                                                                
SENATOR OGAN  asked if the checkpoints  could be established                                                                    
only when the emergency powers are invoked.                                                                                     
                                                                                                                                
CHAIR  SEEKINS clarified  no, the  governor could  establish                                                                    
checkpoints   prior  to   invoking   emergency  powers.   He                                                                    
envisioned the governor establishing  those checkpoints as a                                                                    
first step.                                                                                                                     
                                                                                                                                
SENATOR FRENCH  noted that  police officers  operating under                                                                    
probable cause can set up  roadblocks right now, and that is                                                                    
done  all  of the  time  when  an  assault or  bank  robbery                                                                    
happens. Therefore, DPS is not  prohibited now from throwing                                                                    
up a roadblock  if it believes someone  could be endangering                                                                    
others. He said his intent is  to put some sideboards on the                                                                    
governor's abilities within the framework of this bill.                                                                         
                                                                                                                                
CHAIR SEEKINS said he has no  problem leaving Section 10 as is as                                                               
it will provide an early check and offer an interim step.                                                                       
                                                                                                                                
SENATOR ELLIS  asked if that  question could  be held open  for a                                                               
day.                                                                                                                            
                                                                                                                                
CHAIR SEEKINS noted  that he planned to recess  the meeting until                                                               
5:30  p.m.,  at  which  time  the  committee  could  revisit  the                                                               
question.                                                                                                                       
                                                                                                                                
SENATOR THERRIAULT  brought up  that when  he spoke  with Senator                                                               
Dyson  about  the  oversight  committee,   he  had  envisioned  a                                                               
subcommittee,  however,  SB  385  would create  an  entirely  new                                                               
committee  and he  is  not sure  that is  warranted.  He said  at                                                               
present,  Representative Harris  and Senator  Wilken are  the co-                                                               
chairs of the  Joint Armed Services Committee  (JASC) and Senator                                                               
Guess and Representative  Joule are the minority  members so they                                                               
would  be four  of the  six members  of the  oversight committee,                                                               
according to  the membership list  in SB 385. Senator  Dyson also                                                               
sits on  the JASC  and is the  Senate Finance  subcommittee chair                                                               
for  the DMVA.  He noted  that since  one member  could fill  two                                                               
seats, the committee  could be comprised of five  people, yet the                                                               
quorum is  rigidly established at  four members. In  addition, on                                                               
page 3, lines 13-17 of SB  385, when a member files a declaration                                                               
of candidacy  for an elected  office other than  the legislature,                                                               
that member's  membership on the  committee would  be terminated.                                                               
He felt  it is  unnecessary to  force a member  to vacate  a seat                                                               
until s/he is  actually elected to another office.   He suggested                                                               
structuring  the oversight  committee  as a  subcommittee of  the                                                               
JASC to avoid creating a new  committee and looking at some small                                                               
changes to make the subcommittee administratively workable.                                                                     
                                                                                                                                
SENATOR  DYSON  thanked  Senator  Therriault  for  his  excellent                                                               
comments and offered  to try to work those things  out before the                                                               
evening meeting.                                                                                                                
                                                                                                                                
CHAIR SEEKINS announced a recess until 5:30 p.m.                                                                                
                                                                                                                                
TAPE 04-50, SIDE A                                                                                                            
                                                                                                                                
CHAIR SEEKINS  reconvened the Senate Judiciary  Committee hearing                                                               
at  5:08  p.m. Senators  Ogan,  French,  and Chair  Seekins  were                                                               
present.                                                                                                                        
                                                                                                                                
CHAIR SEEKINS announced,  for the record, that  the committee had                                                               
been working  on version Q  of HB  83 during the  morning meeting                                                               
and,  for the  purpose of  clarification, asked  for a  motion to                                                               
adopt version Q as the version that passed out of the committee.                                                                
                                                                                                                                
SENATOR  OGAN  moved  to  adopt  version Q  of  HB  83.  With  no                                                               
objection, the motion carried.                                                                                                  
                                                                                                                                
CHAIR   SEEKINS  announced   the  committee   would  resume   its                                                               
discussion on  SB 385.   He said  the committee had  adopted five                                                               
amendments  to SB  385  so far  and has  before  it a  conceptual                                                               
amendment [Amendment  6], which  Senator Dyson  indicated applies                                                               
to Section 2.                                                                                                                   
                                                                                                                                
SENATOR  DYSON  asked that  the  committee  consider Amendment  7                                                               
first.                                                                                                                          
                                                                                                                                
CHAIR  SEEKINS  moved  to  adopt  Amendment  7,  which  reads  as                                                               
follows:                                                                                                                        
                                                                                                                                
                       A M E N D M E N T  7                                                                                 
                                                                                                                                
OFFERED IN THE SENATE                                                                                                           
     TO: CSSB 385(HES) (Version I)                                                                                              
                                                                                                                                
Page 9, line 8                                                                                                                  
                                                                                                                                
     Delete "cooperate"                                                                                                         
     Insert "coordinate"                                                                                                        
                                                                                                                                
Page 9, lines 12-18:                                                                                                            
          Delete "and the incidents thereof; and in this                                                                        
connection [TO] take any measures that                                                                                          
                                                                                                                                
               (A) it considers proper to carry into effect a                                                               
                    request of the  president and the appropriate                                                               
                    federal  officers  and  agencies  for  action                                                               
                    pertaining  [LOOKING]  to  homeland  security                                                       
                    and civil defense; and                                                                              
               (B) are authorized under this chapter and the                                                              
                    Constitutions of the United States and the                                                              
                    State of Alaska [,                                                                                      
                                                                                                                                
     Insert "[AND THE INCIDENTS THEREOF; AND IN THIS CONNECTION                                                                 
TO TAKE ANY MEASURES THAT IT CONSIDERS PROPER TO CARRY INTO                                                                     
EFFECT A REQUEST OF THE PRESIDENT AND THE APPROPRIATE FEDERAL                                                                   
OFFICERS AND AGENCIES FOR ACTION LOOKING TO CIVIL DEFENSE,"                                                                     
                                                                                                                                
SENATOR FRENCH objected for the purpose of discussion.                                                                          
                                                                                                                                
SENATOR  DYSON  said the  division  of  homeland security  wrote  this                                                          
amendment and that it takes care  of several issues that the committee                                                          
discussed. On page 9, line 8,  replacing the word "cooperate" with the                                                          
word  "coordinate" will  alleviate the  fear that  the state  would be                                                          
forced to  do anything under federal  rule that it is  not comfortable                                                          
with. The deletion  of the entire phrase "take any  measures" on lines                                                          
12-18 will  not dilute  what the  division wants to  do but  removes a                                                          
phrase of great consternation to several committee members.                                                                     
                                                                                                                                
MR. LIEBERSBACH explained that the  inserted material at the bottom of                                                          
Amendment  7  would actually  delete  language  that is  currently  in                                                          
statute.                                                                                                                        
                                                                                                                                
SENATOR  FRENCH  withdrew  his objection  therefore  Amendment  7  was                                                          
adopted.                                                                                                                        
                                                                                                                                
CHAIR SEEKINS moved to adopt Amendment 6, which reads as follows:                                                               
                                                                                                                                
                        A M E N D M E N T  6                                                                                
                                                                                                                                
     Conceptually, change from formation  of a new joint standing                                                               
     interim  committee into  a Homeland  Security and  Emergency                                                               
     Management   Subcommittee  of   the  Joint   Armed  Services                                                             
     Committee. In this transition, accomplish the following:                                                                   
                                                                                                                                
     (A) Page 2, line 16, delete "six" and insert "four to six"                                                               
     (B) Page 3, lines 13-17, change termination of membership to be                                                          
          tied to time of leaving legislative office.                                                                           
     (C) Page 3, lines 18-23, delete "Vacancy" section. Vacancies to                                                          
          be filled as slots defined under AS 24.20.810 are filled.                                                             
     (D) Page 3 lines 24-27, delete "Travel and Per Diem" section.                                                            
          This is already covered for the Joint Armed Services                                                                  
          Committee.                                                                                                            
     (E) Page 3, line 28, change quorum to three instead of four                                                              
          members.                                                                                                              
     (F) Page 4, lines 4-6, delete "Staff" section. This is already                                                           
          covered for the Joint Armed Services Committee.                                                                       
                                                                                                                                
SENATOR DYSON informed  members that Amendment 6 should be  moved as a                                                          
conceptual  amendment to  take care  of the  issues raised  by Senator                                                          
Therriault about the oversight committee.  He explained that amendment                                                          
6 will:                                                                                                                         
   · clarify that the committee is a subcommittee of the JASC                                                                   
   · change the subcommittee membership to four to six members                                                                  
   · disqualify members when a legislator leaves office rather than                                                             
     when a legislator files for another office                                                                                 
   · delete the vacancy section, which is already covered in law                                                                
   · delete the travel and per diem provision because that is covered                                                           
     under the JASC                                                                                                             
   · change the quorum requirement to three members, anticipating                                                               
     that the committee will not always have six members                                                                        
   · delete the staff provision because JASC staff will serve as the                                                            
     subcommittee staff                                                                                                         
                                                                                                                                
SENATOR FRENCH  questioned whether the quorum  requirement should read                                                          
half of the members plus one.                                                                                                   
                                                                                                                                
CHAIR  SEEKINS maintained  that a  quorum  can be  established at  any                                                          
number.                                                                                                                         
                                                                                                                                
SENATOR DYSON  felt Senator  French's suggestion was  a good  idea. He                                                          
added  that he  envisions  the  subcommittee to  act  as an  oversight                                                          
committee, not a decision-making committee.                                                                                     
                                                                                                                                
Members  discussed   the  quorum  issue.  CHAIR   SEEKINS  noted  that                                                          
according  to  Mason's  Manual  [Sec. 502],  a  quorum  constitutes  a                                                          
majority of all those entitled to  vote and that every member entitled                                                          
to vote should be counted in  determining whether a quorum is present,                                                          
but members  disqualified on  account of interest  from voting  on any                                                          
question cannot be  counted for the purpose of making  a quorum to act                                                          
on that question.                                                                                                               
                                                                                                                                
SENATOR OGAN  questioned how  Amendment 6  would change  the committee                                                          
from an interim committee to a subcommittee.                                                                                    
                                                                                                                                
CHAIR  SEEKINS referred  to  the language  on page  2,  lines 6-10  of                                                          
version  I,  and   noted  the  permanent  interim   committee  of  the                                                          
legislature would  be change to  a subcommittee  of the JASC.  He then                                                          
pointed out  that the  bill could say  that a quorum  is defined  as a                                                          
majority  of the  members of  the subcommittee  and that  would comply                                                          
with Mason's Manual.                                                                                                            
                                                                                                                                
SENATOR FRENCH  moved to  amend Amendment  6 so  that it  replaces the                                                          
language in subsection  (a) on page 3, lines 28-29,  with, "A majority                                                          
of the members of the committee constitutes a quorum."                                                                          
                                                                                                                                
CHAIR  SEEKINS  announced  that without  objection,  Amendment  6  was                                                          
amended.  He asked  if the  JASC staff  would need  the same  security                                                          
clearance as the subcommittee members.                                                                                          
                                                                                                                                
SENATOR DYSON was unsure.                                                                                                       
                                                                                                                                
CHAIR SEEKINS  suggested incorporating that requirement  in subsection                                                          
(b) on page 2, beginning at line 28, of version I.                                                                              
                                                                                                                                
SENATOR  DYSON suggested  leaving the  staff section  in the  bill and                                                          
changing the language on page 4, line  4, to say DMVA staff will staff                                                          
the   subcommittee  and   be  subject   to  the   same  security   and                                                          
confidentiality requirements as the subcommittee members.                                                                       
                                                                                                                                
CHAIR   SEEKINS  noted   that   staff  members   should  provide   the                                                          
subcommittee  with  professional  and clerical  assistance  under  the                                                          
auspices of  the JASC and be  required to have the  same clearances as                                                          
the members.                                                                                                                    
                                                                                                                                
SENATOR  OGAN  moved  Senator  Dyson   and  Chair  Seekins'  suggested                                                          
language  as [another]  amendment to  Amendment 6.  Without objection,                                                          
Amendment 6 was again amended.                                                                                                  
                                                                                                                                
SENATOR DYSON distributed copies of  Administrative Orders 203 and 170                                                          
and said  that AO 203  reorganized the divisions  in DMVA and  that SB
385 codifies those changes in statute.                                                                                          
                                                                                                                                
MR.  LIEBERSBACH agreed,  but  noted a  few changes.  He  said AO  203                                                          
consolidated two divisions  into one and eliminated  the department of                                                          
homeland  security  management,  as  well  an  assistant  commissioner                                                          
position and a  division director position. Those changes  saved a few                                                          
hundred thousand dollars in the 2005 budget.                                                                                    
                                                                                                                                
SENATOR  FRENCH  told members  that  he  spoke  to Mr.  Guaneli  about                                                          
Section 10 and asked that he address the committee.                                                                             
                                                                                                                                
MR. DEAN GUANELI,  Criminal Division, Department of  Law, told members                                                          
that DOL spent a  good deal of time on this  section when drafting the                                                          
bill.  DOL believes  that Section  10 represents  a fair  and balanced                                                          
approach  to providing  security  for critical  infrastructure in  the                                                          
state and  protecting the rights of  citizens. He said that  DOL hopes                                                          
that a  declaration of emergency  by the  governor will be  very, very                                                          
rare. Making  the standard a  "credible threat of an  imminent attack"                                                          
means an attack is highly  probable. However, there will be situations                                                          
where a heightened threat to security  will exist but will not rise to                                                          
the level  of an emergency  declaration. Because of the  importance of                                                          
critical  infrastructure  in  the  state and  the  perceived  need  to                                                          
protect that  infrastructure, some  additional level of  protection is                                                          
deserved. He stated:                                                                                                            
                                                                                                                                
     After 9/11, the  airports were shut down and,  by and large,                                                               
     there  weren't planes  flying. I  think that  some of  those                                                               
     measures can  be put  into place  to guard  against aircraft                                                               
     but  really  the  movement  of  vehicles  on  our  roads  is                                                               
     something that happens regularly and  it seems like a fairly                                                               
     measured response to  set up checkpoints to limit  a road to                                                               
     commercial traffic  or residential traffic to  stop weapons,                                                               
     to  stop  explosives, to  stop  chemical  agents that  might                                                               
     cause widespread damage to the public or to infrastructure.                                                                
                                                                                                                                
     As you recall,  the Alaska pipeline was pierced  by a single                                                               
     bullet  from a  high-powered rifle  so there  are situations                                                               
     that are dangerous  to the pipeline. It's a  big target and,                                                               
     frankly, I think it's an  inviting target to some people and                                                               
     this is  a fairly measured  response. What was  intended was                                                               
     instead of  the decision to  set up these  checkpoints being                                                               
     made simply  by the department, that  the governor intervene                                                               
     and the  governor make a  decision that a  sufficiently high                                                               
     level of  threat exists  and so  it's really  the governor's                                                               
     directive and not any single  department - and what we think                                                               
     is  mid-ground between  declaring  an  emergency that  might                                                               
     cause some  reaction with the  public and the  imposition of                                                               
     extraordinary powers. So that's how we got to this draft.                                                                  
                                                                                                                                
     I have  advised the  Department of  Public Safety  that when                                                               
     these kinds  of checkpoints are  set up, there are  going to                                                               
     be  certain procedures  that really  have to  be followed  -                                                               
     have to  be followed just in  terms of public reaction  to a                                                               
     checkpoint  and, in  terms of  the legal  challenge, one  of                                                               
     those  is some  warning to  the public.  There are  probably                                                               
     going to have  to be signs put  up a quarter mile  away or a                                                               
     half-mile away  saying you are  coming to a  checkpoint, the                                                               
     road is closed  to commercial traffic -  something like that                                                               
     -  no explosives,  no weapons  are allowed,  you know,  that                                                               
     gives  people the  opportunity to  turn  around, gives  them                                                               
     fair warning of what is up ahead.                                                                                          
                                                                                                                                
SENATOR  OGAN informed  Mr. Guaneli  that the  committee modified  the                                                          
bill so  that a person can  carry a weapon  as long as that  weapon is                                                          
not capable  of causing  widespread severe  injury, with  the specific                                                          
intent of allowing Alaskans to carry personal protection weapons.                                                               
                                                                                                                                
MR.  GUANELI said  he  was aware  of  the change  and  believes it  is                                                          
appropriate. He  said that DOL  tried to come  up with a  measured and                                                          
responsible response  without locking  the departments  into detailed,                                                          
operational logistics  that probably  will need  to be  taken up  on a                                                          
case-by-case basis.                                                                                                             
                                                                                                                                
SENATOR FRENCH  said his concern  is that  checkpoints not be  a place                                                          
where local citizens are harassed.  He said if government agencies are                                                          
allowed to conduct reasonable inspections  of persons and vehicles for                                                          
weapons, the  agencies could be  looking for  something the size  of a                                                          
brick, which would require a fairly  invasive search.  He proposed, as                                                          
a conceptual amendment [Amendment 8],  including language to make sure                                                          
that the  focus at the  checkpoint be on  the people who  pass through                                                          
and not on those  who turn back so that the fact  that a person turned                                                          
around could not be considered as probable cause for a search.                                                                  
                                                                                                                                
MR. GUANELI  said DOL would have  no objection to that  if appropriate                                                          
language can  be found. He  said the  law for sobriety  checkpoints in                                                          
other states is  that people must be given fair  warning and they must                                                          
be allowed to  turn around without being targeted. He  offered to find                                                          
the correct wording for such an amendment.                                                                                      
                                                                                                                                
SENATOR  OGAN thought  that  would protect  a  person's right  against                                                          
unreasonable search and seizure.                                                                                                
                                                                                                                                
SENATOR FRENCH  pointed out that  the mayor {of Anchorage]  decided to                                                          
close a road on Government Hill  and residents were very unhappy about                                                          
being   prevented  from   taking   quick  short-cuts   out  of   their                                                          
neighborhoods. He  added that there  is a political aspect  to closing                                                          
roads  because  the  governor  will  take  the  heat  if  people  feel                                                          
unnecessarily inconvenienced by a checkpoint.                                                                                   
                                                                                                                                
SENATOR FRENCH  clarified that the conceptual  amendment [Amendment 8]                                                          
would add  on page 16,  line 5, language  so that those  people, after                                                          
consideration,  entering  a  checkpoint   are  subject  to  reasonable                                                          
inspection.                                                                                                                     
                                                                                                                                
CHAIR  SEEKINS  announced  that without  objection,  Amendment  8  was                                                          
adopted.                                                                                                                        
                                                                                                                                
SENATOR OGAN  noted he is  proud to serve  on this committee.  He then                                                          
moved CSSB  385(JUD) out of committee  with individual recommendations                                                          
and its zero fiscal note. He  noted his assumption that the conceptual                                                          
amendments  would be  reviewed  by the  committee  after drafting  for                                                          
accuracy of intent.                                                                                                             
                                                                                                                                
Without objection, CHAIR SEEKINS announced the motion carried.                                                                  
                                                                                                                                
                                                                                                                                
         CSHB 56(L&C)-UNFAIR TRADE PRACTICES ATTY FEES/COSTS                                                                
                                                                                                                                
REPRESENTATIVE  LES GARA,  sponsor of  HB 56,  told members  that this                                                          
legislation   has  been   around  for   awhile  and   originated  with                                                          
legislation co-sponsored by Senator  Dyson and Representative Croft in                                                          
1997.  He advised  that Alaska  has the  smallest consumer  protection                                                          
department of  any state.  That section  was comprised  of a  staff of                                                          
about 10 people in the attorney  general's office and is now comprised                                                          
of three half-time  attorneys and one investigator.  In the mid-1990s,                                                          
he and others looked at ways  to bolster consumer protection in Alaska                                                          
without  costing the  state  money  and the  group  came  up with  the                                                          
approach in HB  56. The legislation will fund  consumer protection, in                                                          
part, by charging the people who  engage in bad behavior. He explained                                                          
that the  prevailing party in  a lawsuit is  entitled to Rule  82 fees                                                          
and costs,  which amounts to about  20 percent of attorney  fees and a                                                          
small portion  of costs. He  said what the  government has done,  as a                                                          
matter of public  policy in areas that are  historically under funded,                                                          
is to  fund enforcement costs  in those  areas by charging  the people                                                          
who engage in the bad conduct.                                                                                                  
                                                                                                                                
He noted the guts of HB 56, on  page 1, lines 5-9, say if the attorney                                                          
general's office prevails  in a consumer case, the  party that engaged                                                          
in the  bad conduct should  reimburse the state's  reasonable attorney                                                          
fees and costs of the  investigation. The federal government uses that                                                          
approach in federal anti-trust and  hazardous waste cases. He said the                                                          
consumer protection cases  the attorney general's office  gets run the                                                          
gamut. He  believes that  if HB 56  passes, consumer  protection cases                                                          
will become a revenue generator, possibly justifying more staff.                                                                
                                                                                                                                
SENATOR OGAN  characterized HB 56  as a "we tax  the bad guy  and pass                                                          
the savings on to you" bill.                                                                                                    
                                                                                                                                
CHAIR SEEKINS asked what the defendant would get if he prevailed.                                                               
                                                                                                                                
REPRESENTATIVE GARA said Rule 82 would apply.                                                                                   
                                                                                                                                
CHAIR SEEKINS  asked why  the defendant wouldn't  have the  same right                                                          
[for full reimbursement] as the state.                                                                                          
                                                                                                                                
REPRESENTATIVE  GARA  said that  could  be  done  but doing  so  would                                                          
require a fiscal  note. He indicated that from  an enforcement aspect,                                                          
these cases, which  involve very bad conduct, are  not being resolved.                                                          
The policy  argument is that  when the state loses  a case, it  is not                                                          
because the  state committed fraud.  However, a defendant who  loses a                                                          
case  did so  because  of fraudulent  behavior.  Therefore, the  state                                                          
should not  be penalized as harshly  as a defendant when  it loses. He                                                          
said if the state filed a bad  faith case, court rules would allow the                                                          
other party to get full fees reimbursed  by the state. He said he does                                                          
not believe  the legislature  wants to  open up  the state's  purse to                                                          
reimburse full attorney's fees anytime  the state doesn't win, because                                                          
its conduct  is not  as bad  as the conduct  of someone  who committed                                                          
fraud. He  acknowledged that is a  policy call for the  legislature to                                                          
make.                                                                                                                           
                                                                                                                                
CHAIR  SEEKINS noted  that several  years ago,  a consumer  protection                                                          
assistant  attorney  general went  on  huge  fishing expeditions  with                                                          
Alaska Sales  and Service.  He  does not believe the  company was ever                                                          
convicted of anything.  He asked had the company been  charged with 20                                                          
counts  and then  settled on  one count,  whether the  state would  be                                                          
reimbursed for a costly investigation.                                                                                          
                                                                                                                                
REPRESENTATIVE GARA said it would not. He explained:                                                                            
                                                                                                                                
     In a settlement  it would work like the  marketplace. I mean                                                               
     you, as Alaska Sales and Service,  would say - you know, you                                                               
     got us  on one claim.  The other 19 are  bogus. If we  go to                                                               
     trial, the  court's not  going to  give you  the cost  of an                                                               
     investigation  for those  19 bogus  claims so  you can  keep                                                               
     fighting us  and you  keep running up  your bill,  it's just                                                               
     going to  cost you. So,  I don't  think that would  make its                                                               
     way into the settlement. The state  could ask for it but the                                                               
     guy at Alaska Sales and Service  is going to say no way, not                                                               
     a chance.                                                                                                                  
                                                                                                                                
CHAIR SEEKINS  agreed that many of  the cases brought by  the attorney                                                          
general's office regarding consumer  protection are very egregious but                                                          
he has  a natural aversion to  saying what's good for  the goose isn't                                                          
good for the  gander. He wondered about the risk  faced by a defendant                                                          
taking a case to court compared to the state's risk.                                                                            
                                                                                                                                
REPRESENTATIVE GARA said that is a fair concern.                                                                                
                                                                                                                                
CHAIR SEEKINS asked about Rule 82.                                                                                              
                                                                                                                                
TAPE 04-50, SIDE B                                                                                                            
                                                                                                                                
REPRESENTATIVE  GARA  said  Rule  82   is  "20  percent  of  fair  and                                                          
reasonable. It is a schedule but it's partial..."                                                                               
                                                                                                                                
CHAIR SEEKINS  asked if the only  exception occurs if the  court rules                                                          
that a case was frivolous.                                                                                                      
                                                                                                                                
REPRESENTATIVE GARA  said that  is correct -  reimbursement is  at 100                                                          
percent  if  a  case  is  ruled to  be  frivolous;  anything  else  is                                                          
reimbursed at 10  to 20 percent of  what is considered to  be fair and                                                          
reasonable.                                                                                                                     
                                                                                                                                
CHAIR SEEKINS asked if the court  often determines that a person spent                                                          
more than a reasonable amount.                                                                                                  
                                                                                                                                
REPRESENTATIVE  GARA said  it  does. He  noted that  the  bill says  a                                                          
person gets reimbursed  for full, reasonable attorney fees  so that if                                                          
those fees  are unreasonable, they  don't get any  reimbursement. That                                                          
is to prevent the attorney general's office from padding its bill.                                                              
                                                                                                                                
CHAIR SEEKINS asked who determines what is reasonable.                                                                          
                                                                                                                                
REPRESENTATIVE GARA said the judge does.                                                                                        
                                                                                                                                
SENATOR FRENCH  moved CSHB  56(L&C) from  committee with  its attached                                                          
indeterminate fiscal note.                                                                                                      
                                                                                                                                
CHAIR SEEKINS noted that Senator Dyson wanted to testify on the bill.                                                           
                                                                                                                                
SENATOR FRED  DYSON told members  that the attorney fee  provision was                                                          
part of  his and  Representative Croft's original  bill but  the House                                                          
Judiciary Committee  stripped it out.  The bill went forward  with the                                                          
part that allows private attorneys to  capture their costs if they are                                                          
successful. He clarified:                                                                                                       
                                                                                                                                
     It was kind  of a new deal  for me and it was,  in fact, the                                                               
     very circumstance  where Representative  Gara and I  began a                                                               
     relationship  and  we  ran into  lots  of  situations  where                                                               
     people were being taken advantage  of. We had guys that were                                                               
     going to resurface  your driveway, and we had  the blue tarp                                                               
     roofing company  from Mat-Su that  were taking  advantage of                                                               
     folks and the state didn't have  the horsepower to do it and                                                               
     a private  attorney couldn't afford  to do it  because there                                                               
     wasn't a way for him to  recapture his costs and [indisc.] a                                                               
     few hundred,  a few thousand  bucks, and I've had  more than                                                               
     once, and probably a half-dozen  times in the ensuing six or                                                               
     seven years, somebody's come up  and said hey, what you guys                                                               
     did  really worked  because  now we've  got  people who  can                                                               
     afford to  go after these  bunko artists that are  out there                                                               
     and nail them. So I'm  really pleased to have Representative                                                               
     Gara come along  and picking up the pieces  that got knocked                                                               
     out  of this  original piece  of legislation.  So it  really                                                               
     tickles me and I think it will work....                                                                                    
                                                                                                                                
CHAIR  SEEKINS repeated  his  only  concern is  the  possibility of  a                                                          
"scoundrel" assistant attorney  general in that division.  He noted an                                                          
overzealous assistant attorney general can also  do a lot of damage to                                                          
the business community and the public trust.                                                                                    
                                                                                                                                
SENATOR FRENCH repeated his motion to move CSHB 56(L&C) from                                                                    
committee. With no objection, the motion carried.                                                                               
                                                                                                                                
CHAIR SEEKINS announced an at-ease from 6:00 to 6:05 p.m.                                                                       
                                                                                                                                
                                                                                                                                
                 HCR 29am-SUPPORT THERAPEUTIC COURTS                                                                        
                                                                                                                                
MR. JOHN BITTNER, staff to Representative Cheryl Heinze, sponsor of                                                             
HCR 29, gave the following summary of the resolution.                                                                           
                                                                                                                                
     Alcoholism  in Alaska  is a  serious and  immediate problem.                                                               
     Conventional methods of dealing  with repeat offenders under                                                               
     the  influence   of  alcohol  are  not   effective  and  are                                                               
     prohibitively expensive.  Alcoholism is a mental  as well as                                                               
     a physical disease and it needs  to be treated as such if we                                                               
     are to have any hope  of rehabilitating people with drug and                                                               
     alcohol problems effectively and  with the minimum burden to                                                               
     the state and its citizens.                                                                                                
                                                                                                                                
     The daily  cost of the  wellness court  is about $22  a day,                                                               
     which  works  out  to  around   $11,000  over  the  18-month                                                               
     treatment period. Out  of this the state  pays around $6,100                                                               
     on average. The  rest of the cost is paid  for by the person                                                               
     receiving  treatment.   The  average  cost   of  traditional                                                               
     incarceration  is over  $60,000  for 18  months, or  roughly                                                               
     $113   per   day.    Traditionally,   alcoholics   who   are                                                               
     incarcerated  tend not  to receive  effective treatment  for                                                               
     their addictions while  they are in jail.  While the percent                                                               
     of alcohol and  drug abusers who have  been incarcerated and                                                               
     subsequently  rearrested after  their  release is  somewhere                                                               
     around  67 percent  nationwide, the  percentage of  wellness                                                               
     court graduates rearrested after  their release is around 25                                                               
     percent.                                                                                                                   
                                                                                                                                
     This disparity in  success rate is attributed to  the use of                                                               
     maltrexon, a  drug that  inhibits alcohol  cravings, coupled                                                               
     with  community  based   treatment  programs  and  cognitive                                                               
     behavioral  therapy. People  with  substance abuse  problems                                                               
     aren't going to be helped by  locking them away with few, if                                                               
     any, treatment  options and then  releasing them  after they                                                               
     have served  their time.  The best way  we have  of treating                                                               
     people with addictions is the therapeutic courts.                                                                          
                                                                                                                                
     HCR  29  asks  the  legislature  to  show  its  support  for                                                               
     therapeutic  courts and  reducing DUI  crimes. It  also asks                                                               
     the  Department of  Law and  the Public  Defender Agency  to                                                               
     actually participate  in the start-up of  therapeutic courts                                                               
     in areas  with high  incidences of  DUI offenders  and local                                                               
     support   for  therapeutic   courts.  They   are  effective,                                                               
     inexpensive, and easy to implement. Thank you.                                                                             
                                                                                                                                
CHAIR  SEEKINS asked  if the  legislature recently  passed legislation                                                          
that extended funding for therapeutic courts.                                                                                   
                                                                                                                                
SENATOR  FRENCH said  it passed  legislation that  extends the  sunset                                                          
date of  the therapeutic  court to  make sure  the legislature  gets a                                                          
final  report before  making a  decision  on whether  to continue  the                                                          
program.                                                                                                                        
                                                                                                                                
CHAIR SEEKINS said he has heard no opposition to therapeutic courts.                                                            
                                                                                                                                
SENATOR  OGAN  asked  why specific  communities  for  new  therapeutic                                                          
courts are listed on page 2, line 5.                                                                                            
                                                                                                                                
MR.  BITTNER  said  he  believes that  Fairbanks  and  Ketchikan  were                                                          
included  because of  their  sizes. Juneau  and  several other  cities                                                          
already  have therapeutic  courts or  are actively  establishing them.                                                          
The plan is to  put the courts in areas with  the highest incidence of                                                          
DUI crimes.                                                                                                                     
                                                                                                                                
SENATOR  OGAN said  he  was  under the  impression  that the  existing                                                          
therapeutic courts  are a pilot  program so it might  be schizophrenic                                                          
for the  legislature to support more  of them before the  report about                                                          
whether  or not  the  program  has been  successful  is completed.  He                                                          
suggested requiring such a report before allowing new courts to be                                                              
established.                                                                                                                    
                                                                                                                                
SENATOR ELLIS joined the committee.                                                                                             
                                                                                                                                
SENATOR OGAN expressed concern that HCR 29am is inconsistent with the                                                           
legislature's prior actions.                                                                                                    
                                                                                                                                
CHAIR SEEKINS said the resolution would provide support but no                                                                  
funding.                                                                                                                        
                                                                                                                                
MS. JANET McCABE, speaking for Partners for Progress, stated support                                                            
for HCR 29am. She explained:                                                                                                    
                                                                                                                                
     There are  therapeutic courts at  the Superior  Court felony                                                               
     level, and  those are the  ones that of course  you recently                                                               
     funded.  Then  there's  Judge  Wanamacher's  court  and  the                                                               
     courts at  the misdemeanor  level and Ketchikan  has started                                                               
     and is  underway and Fairbanks  is very interested  and with                                                               
     the  court  system's  assistance,  we  are  applying  for  a                                                               
     national  highway safety  grant to  fund those  courts so  I                                                               
     hope that clarifies the finance question...                                                                                
                                                                                                                                
     This  resolution supports  the development,  particularly of                                                               
     Fairbanks, Ketchikan,  and Juneau, because those  are places                                                               
     that have been strongly interested  and Juneau is underway -                                                               
     and  Ketchikan. And  then it  talks about  other communities                                                               
     where  there's  a large  population  of  DUI offenders,  and                                                               
     where there's a  lot of support for  therapeutic courts. The                                                               
     resolution  asks the  district attorneys,  public defenders,                                                               
     and  relevant  agencies  to   assist  in  therapeutic  court                                                               
     development and  it notes  that there  are grant  funds that                                                               
     have been applied for these  DUI courts through the National                                                               
     Institute for Transportation Safety.                                                                                       
                                                                                                                                
     Regarding data,  for the  wellness court  we now  have three                                                               
     years of  solid data from Judge  Wanamacher's wellness court                                                               
     in Anchorage and  this is data prepared and  put together by                                                               
     an  impartial source,  the University  of  Alaska, and  it's                                                               
     based on court records so  it's not anecdotal. It shows that                                                               
     therapeutic  courts  have  been  at  least  three  times  as                                                               
     effective  as  incarceration  in preventing  repeat  alcohol                                                               
     crimes.   Jailing  alcoholic   criminals  is   an  expensive                                                               
     revolving  door. Seventy-five  percent  of repeat  alcoholic                                                               
     offenders get out of jail  and reoffend again, and that also                                                               
     is solid data.                                                                                                             
                                                                                                                                
     Therapeutic courts stop  this cycle by a  process that Judge                                                               
     Wanamacher describes  as quote,  getting the alcohol  out of                                                               
     the alcoholic. People  spend 18 months in  the court program                                                               
     where they are  required to be employed,  they are monitored                                                               
     for  sobriety, they  undergo intensive  treatment, including                                                               
     medical treatments - there's a  medicine now that quells the                                                               
     intense craving that alcohol addicts  have for alcohol. They                                                               
     are also required  to visit the same  judge repeatedly. They                                                               
     are applauded for success or put  back in jail for a relapse                                                               
     for  a  few days.  But  basically,  they're required  to  be                                                               
     responsible for themselves and  they're monitored while they                                                               
     live successfully and  work in the community.  And when they                                                               
     finish the 18-month program, they  are truly changed people.                                                               
     Our data shows that this is a lasting change.                                                                              
                                                                                                                                
     Therapeutic courts  save money  and prevent public  harm. We                                                               
     urge  you  to pass  this  resolution,  which encourages  the                                                               
     development of  therapeutic courts  where there is  both the                                                               
     need and a public interest.                                                                                                
                                                                                                                                
CHAIR SEEKINS referred to the language on  page 2, line 2, and page 1,                                                          
line  11,   and  suggested  adding   "for  which  federal   funds  are                                                          
available".  He asked  Mr. Bittner  if the  intent is  to use  federal                                                          
funds for the start-up of those programs.                                                                                       
                                                                                                                                
MR. BITTNER said it is.                                                                                                         
                                                                                                                                
CHAIR SEEKINS noted that using  federal funds for those projects would                                                          
be consistent with the legislature's intent for the pilot program.                                                              
                                                                                                                                
SENATOR FRENCH pointed  out that language pertaining  to federal funds                                                          
is already included in the third "whereas" clause.                                                                              
                                                                                                                                
SENATOR   OGAN  moved   HCR  29am   from  committee   with  individual                                                          
recommendations and its attached fiscal note.                                                                                   
                                                                                                                                
CHAIR SEEKINS  announced that without  objection, the  motion carried.                                                          
He then adjourned the meeting.                                                                                                  

Document Name Date/Time Subjects