Legislature(2005 - 2006)BUTROVICH 205
04/22/2006 09:30 AM JUDICIARY
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ALASKA STATE LEGISLATURE SENATE JUDICIARY STANDING COMMITTEE April 22, 2006 9:44 a.m. MEMBERS PRESENT Senator Ralph Seekins, Chair Senator Charlie Huggins, Vice Chair Senator Gene Therriault Senator Hollis French Senator Gretchen Guess MEMBERS ABSENT All members present COMMITTEE CALENDAR SENATE BILL NO. 313 "An Act relating to scheduling Salvia divinorum as a controlled substance." MOVED CSSB 313(JUD) OUT OF COMMITTEE SENATE BILL NO. 48 "An Act relating to recommending or refusing psychotropic drugs or certain types of evaluations or treatments for children." MOVED CSSB 48(HES) OUT OF COMMITTEE CS FOR HOUSE BILL NO. 446(JUD) "An Act relating to the amount of a civil penalty for an unlawful act or practice in the conduct of trade or commerce; and eliminating mandatory continuances in these matters after issuance of an injunction." MOVED CSHB 446(JUD) OUT OF COMMITTEE SENATE BILL NO. 316 "An Act amending the Alaska Stranded Gas Development Act to eliminate the opportunity for judicial review of the findings and determination of the commissioner of revenue on which are based legislative review for a proposed contract for payments in lieu of taxes and for the other purposes described in that Act; and providing for an effective date." HEARD AND HELD PREVIOUS COMMITTEE ACTION BILL: SB 313 SHORT TITLE: SALVIA DIVINORUM AS CONTROLLED SUBSTANCE SPONSOR(s): STATE AFFAIRS 04/05/06 (S) READ THE FIRST TIME - REFERRALS 04/05/06 (S) HES, JUD 04/12/06 (S) HES AT 2:45 PM BUTROVICH 205 04/12/06 (S) Moved SB 313 Out of Committee 04/12/06 (S) MINUTE(HES) 04/13/06 (S) HES RPT 3DP 2NR 04/13/06 (S) DP: DYSON, WILKEN, GREEN 04/13/06 (S) NR: ELTON, OLSON 04/20/06 (S) JUD AT 8:30 AM BUTROVICH 205 04/20/06 (S) Scheduled But Not Heard 04/22/06 (S) JUD AT 9:30 AM BUTROVICH 205 BILL: SB 48 SHORT TITLE: PSYCH. EVALUATION/TREATMENT FOR STUDENTS SPONSOR(s): SENATOR(s) DAVIS 01/12/05 (S) READ THE FIRST TIME - REFERRALS 01/12/05 (S) HES, JUD 04/05/06 (S) HES AT 1:30 PM BUTROVICH 205 04/05/06 (S) -- Meeting Canceled -- 04/12/06 (S) HES AT 2:45 PM BUTROVICH 205 04/12/06 (S) Moved CSSB 48(HES) Out of Committee 04/12/06 (S) MINUTE(HES) 04/13/06 (S) HES RPT CS 2DP 2NR 04/13/06 (S) DP: DYSON, ELTON 04/13/06 (S) NR: WILKEN, OLSON 04/20/06 (S) JUD AT 8:30 AM BUTROVICH 205 04/20/06 (S) Scheduled But Not Heard 04/22/06 (S) JUD AT 9:30 AM BUTROVICH 205 BILL: HB 446 SHORT TITLE: PENALTY FOR UNLAWFUL TRADE PRACTICE SPONSOR(s): REPRESENTATIVE(s) MCGUIRE 02/13/06 (H) READ THE FIRST TIME - REFERRALS 02/13/06 (H) JUD, FIN 02/24/06 (H) JUD AT 2:00 PM CAPITOL 120 02/24/06 (H) Moved CSHB 446(JUD) Out of Committee 02/24/06 (H) MINUTE(JUD) 02/27/06 (H) JUD RPT CS(JUD) NT 4DP 02/27/06 (H) DP: COGHILL, ANDERSON, GRUENBERG, MCGUIRE 03/15/06 (H) FIN AT 1:30 PM HOUSE FINANCE 519 03/15/06 (H) Moved CSHB 446(JUD) Out of Committee 03/15/06 (H) MINUTE(FIN) 03/17/06 (H) FIN RPT CS(JUD) NT 3DP 8NR 03/17/06 (H) DP: FOSTER, KERTTULA, MEYER; 03/17/06 (H) NR: HAWKER, WEYHRAUCH, STOLTZE, JOULE, MOSES, HOLM, KELLY, CHENAULT 04/10/06 (H) TRANSMITTED TO (S) 04/10/06 (H) VERSION: CSHB 446(JUD) 04/12/06 (S) READ THE FIRST TIME - REFERRALS 04/12/06 (S) JUD, FIN 04/20/06 (S) JUD AT 8:30 AM BUTROVICH 205 04/20/06 (S) Scheduled But Not Heard 04/22/06 (S) JUD AT 9:30 AM BUTROVICH 205 BILL: SB 316 SHORT TITLE: COURT REVIEW OF STRANDED GAS DECISION SPONSOR(s): JUDICIARY 04/13/06 (S) READ THE FIRST TIME - REFERRALS 04/13/06 (S) JUD 04/19/06 (S) JUD AT 8:30 AM BUTROVICH 205 04/19/06 (S) Heard & Held 04/19/06 (S) MINUTE(JUD) 04/20/06 (S) JUD AT 8:30 AM BUTROVICH 205 04/20/06 (S) Heard & Held 04/20/06 (S) MINUTE(JUD) 04/21/06 (S) JUD AT 9:30 AM BUTROVICH 205 04/21/06 (S) Heard & Held 04/21/06 (S) MINUTE(JUD) 04/22/06 (S) JUD AT 9:30 AM BUTROVICH 205 WITNESS REGISTER Dave Stancliff, Legislative Aide Staff to Senator Gene Therriault Alaska State Capitol Juneau, AK 99801-1182 POSITION STATEMENT: Introduced SB 313 Jack Degenstein Anchorage, Alaska POSITION STATEMENT: Testified in opposition to SB 313 Chris Beheim, Supervisor Alaska State Crime Lab POSITION STATEMENT: Commented on SB 313 Senator Bettye Davis Alaska State Capitol Juneau, AK 99801-1182 POSITION STATEMENT: Introduced SB 48 Richard Benavides, Legislative Aide Senator Bettye Davis Alaska State Capitol Juneau, AK 99801-1182 POSITION STATEMENT: Answered questions regarding SB 48 Stuart Thompson Wasilla, Alaska POSITION STATEMENT: Testified in support of SB 48 Margaret Anthony MatSu Valley, Alaska POSITION STATEMENT: Testified in support of SB 48 Frank Turney Fairbanks, Alaska POSITION STATEMENT: Testified in support of SB 48 Greg Sternquist Anchorage, Alaska POSITION STATEMENT: Testified in support of SB 48 Angela Tillery, Director Church of Scientology No address provided POSITION STATEMENT: Testified in support of SB 48 Richard Warner Citizens Commission on Human Rights Seattle, Washington POSITION STATEMENT: Testified in support of SB 48 Craig Johnson, Legislative Aide Staff to Representative Lesil McGuire Alaska State Capitol Juneau, AK 99801-1182 POSITION STATEMENT: Introduced HB 446 Ed Sniffen, Assistant Attorney General Department of Law PO Box 110300 Juneau, AK 99811-0300 POSITION STATEMENT: Answered questions regarding HB 446 ACTION NARRATIVE CHAIR RALPH SEEKINS called the Senate Judiciary Standing Committee meeting to order at 9:44:21 AM. Present were Senators Hollis French, Gene Therriault, Charlie Huggins, Gretchen Guess, and Chair Ralph Seekins. SB 313-SALVIA DIVINORUM AS CONTROLLED SUBSTANCE 9:44:48 AM CHAIR RALPH SEEKINS announced SB 313 to be up for consideration. SENATOR GENE THERRIAULT asked Dave Stancliff to introduce SB 313. DAVE STANCLIFF, Staff to Senator Therriault, introduced the bill. Salvia divinorum is a very powerful substance used primarily by the Mazatec Indians for the purpose of obtaining spiritual visions. It is the most potent hallucinogenic material known to man and due to a proliferation of Internet sales, this substance is now being sold in stores in Alaska. Purveyors of the substance give grave warnings about its use. The sponsor has several letters of support for the bill from varying departments, including the Department of Health and Social Services. 9:47:44 AM Studies have shown that people predisposed to depression or schizophrenia can be tipped further in that direction after using Salvia. There are long-term effects such as flashbacks. After consumption of the substance the high can last for hours and the effects can last for days. Salvia divinorum is enjoying a rise in use due to the lack of restrictions on the substance. Alaska should stay ahead of the game and add this to the list of Schedule II illegal drugs. 9:50:24 AM SENATOR GRETCHEN GUESS asked whether someone who needed it would be able to still get the drug if the bill were to pass. MR. STANCLIFF stated yes with permission from a doctor. It would also be able to be legally used for scientific study. SENATOR THERRIAULT moved version G as the working document before the committee. Hearing no objections, the motion carried. SENATOR HOLLIS FRENCH asked the penalty for possession of Schedule II drugs. MR. STANCLIFF said it depends on whether the possession is near a school ground or other different considerations. The committee should know is that it can't be grown from seeds. It is primarily grown in Mexico, California and Hawaii. SENATOR FRENCH asked what the penalty would be for buying Salvia divinorum. MR. STANCLIFF said it would be the same as it is for LSD or cocaine, which is a class C felony. 9:53:14 AM CHAIR SEEKINS called for public testimony. JACK DEGANSTEIN, Anchorage, testified in opposition to the bill. He asserted that Salvia divinorum was not a dangerous drug. He contended that the substance was not a problem and said it is primarily used in a responsible manner. He said the facts have been distorted and he has never seen evidence that it causes depression. The effects are more in the manner of providing hope and enlightenment, he stated. 9:57:27 AM CHAIR SEEKINS asked Mr. Deganstein whether it was safe to operate a car while using the drug. MR. DEGENSTEIN reported it would be impossible to operate equipment. CHRIS BEHEIM, Supervisor, Alaska State Crime Lab, offered to answer questions. He said he has been working on obtaining a sample of the ingredient so that he can do a chemical analysis of the substance. CHAIR SEEKINS closed public testimony. SENATOR THERRIAULT noted drug dealers do currently not sell Salvia divinorum because it is readily available to purchase. He said the committee should add the drug to the list of Schedule II drugs. 10:03:15 AM SENATOR CHARLIE HUGGINS expressed support for the bill. He moved CSSB 313(JUD) from committee with individual recommendations and attached fiscal notes. Hearing no objection, the motion carried. CHAIR SEEKINS announced a brief recess at 10:04:08 AM. SB 48-PSYCH. EVALUATION/TREATMENT FOR STUDENTS 10:12:15 AM CHAIR RALPH SEEKINS announced SB 48 to be up for consideration. SENATOR BETTYE DAVIS introduced the bill. She said there are many other states that have passed similar legislation. RICHARD BENAVIDES, Staff to Senator Davis, explained that the bill basically states that a public school may not deny any student access to programs or services because the parents refuse to place the student on psychotropic medications, get a psychiatric evaluation or seek treatment for the child. It also spells out what communications are allowed, who can do evaluations and the protections a parent or guardian has against being reported to the Office of Children's Services (OCS). The sponsor recognizes that psychotropic drugs are sometimes used to address mental health problems. The U.S. Department of Education has clearly informed educators that medical professionals, not education professionals, are responsible for prescribing medication. A 2004 reauthorization of the Individuals with Disabilities in Education Act (IDEA) requires that each state prohibit any school district personnel from requiring a child to obtain a prescription for psychotropic drugs as a condition of attending school. This does not prevent teachers from sharing classroom- based observations with parents or guardians. Essentially, any medical decision to address a student's need is a matter between the student, the parent and a competent healthcare professional chosen by the parent. Nothing in the bill prevents school personnel from using any other means of dealing with behavioral problems. The bill targets teachers who attempt to prevent children from attending school. 10:17:26 AM CHAIR SEEKINS called for public testimony. STUART THOMPSON, Wasilla, testified in support of SB 48. School administrator training is not designed to make educators competent to practice any type of medicine, he stated. Advertisements by pharmaceutical companies attempt to convince the mainstream that children with excess energy suffer from chemical imbalances, which their drugs would cure. Years of using legal drugs begets years of using illegal drugs, he claimed. He encouraged the committee to support SB 48. 10:22:27 AM MARGARET ANTHONY, Fairbanks, expressed concern regarding the number of children in America on psychotropic drugs. Some of the most talented people in history had a hard time sitting still in school, such as Albert Einstein and actor Tom Cruise. Today the two might be diagnosed with ADD and put on drugs. She informed the committee that any person who was been on Ritalin for more than two years is not eligible to serve in the military. People on psychotropic drugs present higher risks of suicide and violent behavior. One of the students who went on the shooting spree in Columbine High School was on such types of drugs, she stated. The drugs appear to interfere with good judgment. She encouraged the committee to support the bill. 10:26:33 AM FRANK TURNEY, Fairbanks, said he was a community activist who supported SB 48. He informed the committee of a resolution passed in 2005 by the borough assembly in support of this legislation. Many parents are concerned with their children being misdiagnosed with attention deficit disorder (ADD) or attention deficit hyperactivity disorder (ADHD) and then denied the opportunity to serve in military service. He agreed with previous testimony from Ms. Anthony regarding increased erratic behavior of young adults who have been put on psychotropic drugs. 10:31:50 AM GREG STERNQUIST, Chiropractor, said he has treated children for ADHD for many years and considers himself an expert on psychotropic drugs. He recognized that teachers are doing a good job overall but they do not have possess the education level to diagnose or suggest treatment to children. He urged the committee to support the bill. 10:33:35 AM ANGELA TILLERY, Director, Church of Scientology, testified in support of the bill. She has counseled parents whose children have been recommended psychotropic drugs due to their hyperactivity. School districts want a quick fix because they have too many children in the classroom and they seek easier control, she claimed. 10:36:47 AM RICHARD WARNER, President of the Seattle Chapter of the Citizen's Commission on Human Rights, testified in support of the bill. Similar legislation has passed in many other states. Children are exposed to many different factions in today's society and there are many different root causes to mental instability including too much television watching, poor nutrition, and exposure to environmental toxins. The Surgeon General's 1999 report on mental health says there is no definitive lesion, laboratory tests or abnormality in brain tissue that can identify mental illness. The FDA has recently issued an unprecedented series of warning against psychotropic drugs. They have found that anti- depressants can double a child's risk of becoming suicidal. ADHD drugs such as Ritalin can increase cardiovascular problems, lead to hallucinations, aggression, violence, and psychotic behavior. Tests show that the drugs are no more effective than placebos in treating children for hyperactivity. 10:41:18 AM MR. WARNER continued his only problem with the S version of the bill is that the original bill was much stronger. He encouraged the committee to return the bill to its stronger position of protecting parents who refuse to put their children on drugs. 10:44:16 AM SENATOR CHARLIE HUGGINS asked Senator Davis whether she agreed with Mr. Warner's stance for a stronger bill. SENATOR DAVIS said she felt the bill was in good form. CHAIR SEEKINS closed public testimony. SENATOR GRETCHEN GUESS moved to report CSSB 48(HES) from committee with individual recommendations and attached fiscal notes. Hearing no objections, the motion carried. CHAIR SEEKINS called a brief recess at 10:45:56 AM. HB 446-PENALTY FOR UNLAWFUL TRADE PRACTICE 10:47:39 AM CHAIR RALPH SEEKINS announced CSHB 446(JUD) to be up for consideration. MR. CRAIG JOHNSON, Staff to Representative Lesil McGuire, introduced the bill. The first consumer protection bill was introduced in 1979. Today Alaska's current consumer protection laws provide the lowest allowable civil penalties of any state. The bill is meant to strengthen consumer protection laws and bring the penalties up in accordance with inflation. The bill has seen no opposition to this point. 10:49:35 AM SENATOR HOLLIS FRENCH remarked that the bill simply updates the amounts of fines and does not change any substantive law. ED SNIFFEN, Assistant Attorney General, Department of Law (DOL), testified that his responsibilities include enforcement of the Consumer Protection Act, which the bill would amend. He agreed with Senator French's comment that the bill would bring Alaska Statutes in line with the fines of the current times. CHAIR SEEKINS referred to page 1, line 6 and questioned whether the provision "A person who violates the terms of an injunction or restraining order" implies that the person would "knowingly and willfully" do so. He stated that was not always clear to the average person. MR. SNIFFEN agreed but said there are a number of statutes that have the same implied effect. 10:53:55 AM CHAIR SEEKINS asked Mr. Sniffen the standard that is used to bring someone to court. MR. SNIFFEN responded that the DOL looks at a variety of factors in each individual case. It is policy to consider the impact of the conduct on the citizens of the State of Alaska. There are cases involving private disputes between individuals where the Department would be unlikely to spend resources as the impact is localized and unique and does not demonstrate patterns of illegal behavior. CHAIR SEEKINS asked whether it was normal practice to advise the person of the illegal practice and to order them to cease and desist. MR. SNIFFEN said yes. If the harm is not monumental, the DOL will advise them of the law and have them sign an assurance of voluntary compliance, which is then filed with the court. 10:56:58 AM CHAIR SEEKINS closed public testimony. SENATOR GRETCHEN GUESS moved to report CSHB 446(JUD) from committee with individual recommendations and attached fiscal notes. Hearing no objections, the motion carried. CHAIR SEEKINS announced a brief recess at 10:57:33 AM. SB 316-COURT REVIEW OF STRANDED GAS DECISION 11:08:38 AM CHAIR RALPH SEEKINS announced SB 316 to be up for consideration. He said the intent today was to discuss proposed language so that the bill could move forward. The committee did not expect to move the bill out but the chairman hoped to do constructive work on it. He said his draft would allow the Legislature to view the contract and would allow a public citizen to challenge the findings and determinations provided that the Legislature authorized and approved the signing of the contract. If the committee agreed on the draft, he would have it drawn up into a committee substitute (CS) to be considered on the following hearing date. 11:10:31 AM CHAIR SEEKINS said as he reads the original bill, the challenge could be made at the point where the decision was made to execute the contract. There was nothing for the court to consider until an action on the contract was made. It appears that the Senate Judiciary Standing Committee is trying to put one more step into the process before there could be a judicial review, he stated. Any challenger to the contract would legitimately try to determine whether or not the contract was in the best fiscal interest of the state. The only party that could possibly challenge a contract while it was in the middle of the process would be someone who wanted to "high- center" the contract and halt the process for political or private reasons, which should not be allowed. The opportunity for any challenge should be at the end of the process. 11:12:41 AM CHAIR SEEKINS said he was also concerned that there be plenty of opportunity to view the body of evidence that the commissioner used to come to his conclusion. For example, currently the commissioner has not released any preliminary findings and as a result, none of the body of evidence, including the contract currently under consideration, is a public document except for the proprietary information identified in Section 310. SENATOR GENE THERRIAULT said there is a category of documents that are part of the deliberative process that can also be withheld. CHAIR SEEKINS said his concern was that every document that would be discoverable in a legal challenge should be made public. 11:15:16 AM CHAIR SEEKINS directed the committee's attention to the current Stranded Gas Act (SGA), page 21, line 8, and the term "supporting financial, technical, market data." He said that indicated that only the documents supporting a particular decision are required to be disclosed. He passed out his untitled draft and proposed that word "supporting" would be deleted, thereby broadening the amount of documents that would be discoverable. SENATOR HOLLIS FRENCH noted there are two clear definitions of the word "support." A government lawyer would lose his argument that the only documents that get released are the ones favoring his client. He said every single word is subject to contrasting interpretations. CHAIR SEEKINS asserted the importance of transparency and inclusion regarding consideration of any contract. SENATOR FRENCH pointed out in the same paragraph it states the documents "considered by the commissioner" would be submitted with the final findings and determination. A clever federal government lawyer could contend that many of the documents were not "considered," he stated. CHAIR SEEKINS replied that the Legislature could only hold the commissioner to those things that he actually considered. 11:21:00 AM CHAIR SEEKINS said the intent was to make the bill as clear as possible and to allow someone to examine the body of documents that the commissioner used to come up with the final findings and determination. At that point, the Legislature goes to work and it becomes their responsibility to examine the contract to ensure that it meets the terms of the SGA. 11:24:52 AM CHAIR SEEKINS asked the committee whether they were in agreement regarding the steps they want the process to go through. They would make sure that the body of evidence that the commissioner used to come up with his preliminary findings is made public at the point that the preliminary findings are signed. Then there would be a period of time of at least 30 days for the legislative and public review. Then the commissioner would close off public comment and within 30 days prepare a summary of the public comment and legislative comment. He would consolidate the body of evidence together and bring it to the governor along with the contract. The governor would then forward all of that to the Legislature. 11:27:07 AM SENATOR FRENCH interrupted to ask whether the committee was operating under the new [untitled] draft. CHAIR SEEKINS said yes and read Section 43.82.430 as follows: Sec. 43.82.430. Final findings, determination, and proposed amendments; execution of the contract. (a) Within 30 days after the close of the public comment period under AS 43.82.410(4), the commissioner of revenue shall (1) prepare a summary of the public comments received in response to the proposed contract and the preliminary findings and determination; (2) after consultation with the commissioner of natural resources, if appropriate, and with the pertinent municipal advisory group established under AS 43.82.510, prepare a list of proposed amendments, if any, to the proposed contract that the commissioner of revenue determines are necessary to respond to public comments; (3) make final findings and a determination as to whether the proposed contract and any proposed amendments prepared under (2) of this subsection meet the requirements and purposes of this chapter. (b) After considering the material described in (a) of this section and securing the agreement of the other parties to the proposed contract regarding any proposed amendments prepared under (a) of this section, if the commissioner determines that the contract is in the long-term fiscal interests of the state, the commissioner shall submit the contract to the governor. SENATOR FRENCH noted for the people watching on television that the chairman was reading the statute as it currently stands and is suggesting no change to AS 43.82.430. CHAIR SEEKINS agreed and said he just wanted to make it clear. He read Section 435 as he proposed in his draft CS. Sec. 43.82.435. Legislative authorization. (a) The governor may transmit a contract developed under this chapter to the legislature together with a request for authorization to execute the contract. (b) Concurrent with the submission of the contract and request for authorization to execute the contract to the legislature, the governor shall: (1) submit the commissioner's final findings and determinations and the financial, technical, market data, including work papers, analyses, and recommendations of any independent contractors used under AS 43.82.240, that were considered by the commissioner to make the final findings and determinations to the legislature; and SENATOR FRENCH interrupted to ask to whom the final findings and determinations would be submitted. CHAIR SEEKINS said to the Legislature. He continued reading his proposed language to the committee and clarified that there would be 120 days after the execution of the contract for someone to be able to bring a challenge. 11:31:43 AM SENATOR CHARLIE HUGGINS reported that Chair Seekins' CS would satisfy the concerns of his constituents. SENATOR GUESS agreed with Senator Huggins. She asked whether the law authorizing the contract is what would be challenged. CHAIR SEEKINS explained that the challengeable part would be that the contract entered into was not cohesive to the long-term fiscal interest of the state. SENATOR FRENCH compared Chair Seekins' proposed Section 440 with the current AS 43.82.440 and said, "it looks as if a person could challenge the enforceability of a contract executed under a law authorizing the contract." 11:34:10 AM CHAIR SEEKINS agreed to add that into his CS. SENATOR FRENCH reiterated his earlier concern with changing the focus of the legal contest from the findings and determination of the commissioner to the findings and determinations forwarded to the Legislature. He said he could not know for a certainty that the committee wasn't "shrinking" the amount of discoverable information. CHAIR SEEKINS said he has struggled over that because it is difficult to challenge the actions of the Legislature in passing a law. If the Legislature were to determine that the contract did not meet the requirements of the law, they could still accept it because a new law would authorize it. SENATOR HUGGINS said he heard Senator French say that the language of the proposed CS denotes a narrowing of things that would be available for people to challenge. SENATOR FRENCH agreed that was his concern. CHAIR SEEKINS said that it was not his intent to narrow the scope of the challenge but to properly place it. 11:37:05 AM CHAIR SEEKINS asserted under the old law there was a clumsy situation that would allow a "high-centering" of a contract. He advised the committee that he would submit his CS to the drafters for their review and bring the bill up again. He held SB 316 in committee. There being no further business to come before the committee, Chair Seekins adjourned the meeting at 11:41:22 AM.