Legislature(2011 - 2012)BELTZ 105 (TSBldg)

02/16/2011 01:30 PM JUDICIARY


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+= SB 58 INCREASING NUMBER OF SUPERIOR CT JUDGES TELECONFERENCED
Moved SB 58 Out of Committee
+= SB 72 CRIMES INVOLVING MINORS/STALKING/INFO TELECONFERENCED
Heard & Held
*+ SB 11 HATE CRIMES TELECONFERENCED
Heard & Held
+ SB 39 U.S. PRESIDENTIAL ELECTION COMPACT TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
                    ALASKA STATE LEGISLATURE                                                                                  
              SENATE JUDICIARY STANDING COMMITTEE                                                                             
                       February 16, 2011                                                                                        
                           1:30 p.m.                                                                                            
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Senator Hollis French, Chair                                                                                                    
Senator Bill Wielechowski, Vice Chair                                                                                           
Senator Joe Paskvan                                                                                                             
Senator Lesil McGuire                                                                                                           
Senator John Coghill                                                                                                            
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
All members present                                                                                                             
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
SENATE BILL NO. 58                                                                                                              
"An  Act   increasing  the  number   of  superior   court  judges                                                               
designated for the third judicial  district; and providing for an                                                               
effective date."                                                                                                                
                                                                                                                                
     - MOVED SB 58 OUT OF COMMITTEE                                                                                             
                                                                                                                                
SENATE BILL NO. 72                                                                                                              
"An Act relating to the  crimes of stalking, online enticement of                                                               
a  minor,  unlawful  exploitation  of a  minor,  endangering  the                                                               
welfare  of  a child,  sending  an  explicit  image of  a  minor,                                                               
harassment,  distribution of  indecent  material  to minors,  and                                                               
misconduct  involving   confidential  information;   relating  to                                                               
probation; and providing for an effective date."                                                                                
                                                                                                                                
     - HEARD AND HELD                                                                                                           
                                                                                                                                
SENATE BILL NO. 11                                                                                                              
"An Act relating to the commission  of a crime when the defendant                                                               
directed the conduct  constituting the crime at  the victim based                                                               
on  the victim's  race,  sex, color,  creed,  physical or  mental                                                               
disability,  sexual orientation,  gender  identity, ancestry,  or                                                               
national origin."                                                                                                               
                                                                                                                                
     - HEARD AND HELD                                                                                                           
                                                                                                                                
SENATE BILL NO. 39                                                                                                              
"An Act  ratifying an interstate  compact to elect  the President                                                               
and  Vice-President  of the  United  States  by national  popular                                                               
vote; and  making related changes  to statutes applicable  to the                                                               
selection by voters of electors  for candidates for President and                                                               
Vice- President of  the United States and to the  duties of those                                                               
electors."                                                                                                                      
                                                                                                                                
     - HEARD AND HELD                                                                                                           
                                                                                                                              
PREVIOUS COMMITTEE ACTION                                                                                                     
                                                                                                                                
BILL: SB  58                                                                                                                  
SHORT TITLE: INCREASING NUMBER OF SUPERIOR CT JUDGES                                                                            
SPONSOR(s): RULES BY REQUEST                                                                                                    
                                                                                                                                
01/21/11       (S)       READ THE FIRST TIME - REFERRALS                                                                        
01/21/11       (S)       JUD, FIN                                                                                               
02/02/11       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
02/02/11       (S)       Heard & Held                                                                                           
02/02/11       (S)       MINUTE(JUD)                                                                                            
02/16/11       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
                                                                                                                                
BILL: SB  72                                                                                                                  
SHORT TITLE: CRIMES INVOLVING MINORS/STALKING/INFO                                                                              
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR                                                                                    
                                                                                                                                
01/26/11       (S)       READ THE FIRST TIME - REFERRALS                                                                        
01/26/11       (S)       JUD, FIN                                                                                               
02/07/11       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
02/07/11       (S)       Heard & Held                                                                                           
02/07/11       (S)       MINUTE(JUD)                                                                                            
02/16/11       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
                                                                                                                                
BILL: SB  11                                                                                                                  
SHORT TITLE: HATE CRIMES                                                                                                        
SPONSOR(s): DAVIS                                                                                                               
                                                                                                                                
01/19/11       (S)       PREFILE RELEASED 1/7/11                                                                                
01/19/11       (S)       READ THE FIRST TIME - REFERRALS                                                                        
01/19/11       (S)       JUD, FIN                                                                                               
02/16/11       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
                                                                                                                                
BILL: SB  39                                                                                                                  
SHORT TITLE: U.S. PRESIDENTIAL ELECTION COMPACT                                                                                 
SPONSOR(s): FRENCH                                                                                                              
                                                                                                                                
01/19/11       (S)       PREFILE RELEASED 1/14/11                                                                               
01/19/11       (S)       READ THE FIRST TIME - REFERRALS                                                                        
01/19/11       (S)       STA, JUD, FIN                                                                                          
02/01/11       (S)       STA AT 9:00 AM BUTROVICH 205                                                                           
02/01/11       (S)       Heard & Held                                                                                           
02/01/11       (S)       MINUTE(STA)                                                                                            
02/10/11       (S)       STA AT 9:00 AM BUTROVICH 205                                                                           
02/10/11       (S)       Moved SB 39 Out of Committee                                                                           
02/10/11       (S)       MINUTE(STA)                                                                                            
02/11/11       (S)       STA RPT 1DNP 3NR                                                                                       
02/11/11       (S)       DNP: GIESSEL                                                                                           
02/11/11       (S)       NR: WIELECHOWSKI, PASKVAN, MEYER                                                                       
02/16/11       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
ANNE CARPENETI, Assistant Attorney General                                                                                      
Criminal Division                                                                                                               
Department of Law                                                                                                               
Juneau, AK                                                                                                                      
POSITION STATEMENT:  Provided a continued sectional analysis of                                                               
SB 72.                                                                                                                          
                                                                                                                                
TONY NEWMAN, Social Services Program Officer                                                                                    
Division of Juvenile Justice                                                                                                    
Department of Health and Social Services                                                                                        
POSITION STATEMENT:  Testified in support of SB 72.                                                                           
                                                                                                                                
QUINLAN STEINER, Public Defender for the State of Alaska                                                                        
Public Defender Agency                                                                                                          
Anchorage, AK                                                                                                                   
POSITION STATEMENT:  Commented on the unintended consequences in                                                              
section 7 of SB 72.                                                                                                             
                                                                                                                                
THOMAS OBERMEYER, staff to Senator Davis                                                                                        
Alaska State Legislature                                                                                                        
Juneau, AK                                                                                                                      
POSITION STATEMENT:  Introduced SB 11 on behalf of the sponsor.                                                               
                                                                                                                                
SLADE MARTIN, representing himself                                                                                              
POSITION STATEMENT:  Testified in support of SB 11.                                                                           
                                                                                                                                
SHAYLE HUTCHISON, Board Member                                                                                                  
Alaskans Together for Equality                                                                                                  
POSITION STATEMENT:  Testified in support of SB 11.                                                                           
                                                                                                                                
NELSON ANGAPAK, Senior Vice President                                                                                           
Alaska Federation of Natives                                                                                                    
Anchorage, AK                                                                                                                   
POSITION STATEMENT:  Testified in support of SB 11.                                                                           
                                                                                                                                
KATE BURKHART, Executive Director                                                                                               
Alaska Mental Health Board                                                                                                      
Department of Health and Social Services                                                                                        
Juneau, AK                                                                                                                      
POSITION STATEMENT:  Spoke to  why the Alaska Mental Health Board                                                             
supports SB 11.                                                                                                                 
                                                                                                                                
KELLI BURKINSHAW, Board Member                                                                                                  
Alaskans Together for Equality                                                                                                  
POSITION STATEMENT:  Testified in support of SB 11.                                                                           
                                                                                                                                
JEFFERY MITTMAN, Executive Director                                                                                             
Alaska Civil Liberties Union                                                                                                    
Anchorage, AK                                                                                                                   
POSITION STATEMENT:  Testified that,  as currently drafted, SB 11                                                             
is susceptible to a facial challenge.                                                                                           
                                                                                                                                
WANDA GREENE, President                                                                                                         
NAACP Anchorage                                                                                                                 
Anchorage, AK                                                                                                                   
POSITION STATEMENT:  Testified in support of SB 11.                                                                           
                                                                                                                                
ANDY MODEROW, Staff to Senator French                                                                                           
Alaska State Legislature                                                                                                        
Juneau, AK                                                                                                                      
POSITION STATEMENT:  Provided a sectional analysis of SB 39.                                                                  
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
1:30:35 PM                                                                                                                    
CHAIR  HOLLIS   FRENCH  called  the  Senate   Judiciary  Standing                                                             
Committee  meeting  to  order  at  1:30  p.m.  Senators  McGuire,                                                               
Wielechowski, Paskvan,  and French  were present  at the  call to                                                               
order. Senator Coghill joined the committee soon thereafter.                                                                    
                                                                                                                                
         SB  58-INCREASING NUMBER OF SUPERIOR CT JUDGES                                                                     
                                                                                                                                
1:31:22 PM                                                                                                                    
CHAIR FRENCH  announced the  consideration of  SB 58  relating to                                                               
increasing by two  the number of superior court  judges. The bill                                                               
was discussed at  length during the previous  hearing, and public                                                               
testimony was taken and then closed. He solicited a motion.                                                                     
                                                                                                                                
1:32:21 PM                                                                                                                    
SENATOR WIELECHOWSKI  moved to report  SB 58 from  committee with                                                               
individual recommendations and attached fiscal note(s).                                                                         
                                                                                                                                
There being no  objection, SB 58 moved from  the Senate Judiciary                                                               
Standing Committee.                                                                                                             
                                                                                                                                
At ease from 1:32 p.m. to 1:34 p.m.                                                                                             
                                                                                                                                
          SB  72-CRIMES INVOLVING MINORS/STALKING/INFO                                                                      
                                                                                                                                
1:34:01 PM                                                                                                                    
CHAIR FRENCH announced  the consideration of SB 72.  He asked Ms.                                                               
Carpeneti  to  continue  the sectional  analysis,  starting  with                                                               
Section 8.                                                                                                                      
                                                                                                                                
ANNE  CARPENETI, Assistant  Attorney General,  Criminal Division,                                                               
Department  of  Law  (DOL),  said   Section  8  is  a  conforming                                                               
amendment to  clarify that  the sexting  provisions in  Section 7                                                               
aren't included in the crime of harassment in the second degree.                                                                
                                                                                                                                
1:35:15 PM                                                                                                                    
Section 9  makes two amendments  to the crime of  distribution of                                                               
indecent  material to  minors. First,  it clarifies  the culpable                                                               
mental state  that the  state must  prove in  order to  convict a                                                               
person  of the  offense. It  provides that  the person  must know                                                               
that the  material he or  she distributed depicts  the prohibited                                                               
conduct.  Second, it  clarifies that  if  the minor  to whom  the                                                               
material  is sent  is  under  age 16,  the  person  who sent  the                                                               
material was reckless as to that circumstance.                                                                                  
                                                                                                                                
SENATOR  PASKVAN noted  that the  term "lewd"  is included  as an                                                               
adjective  in this  section to  specifically describe  "touching"                                                               
and "exhibition." He asked what the mental status is for "lewd."                                                                
                                                                                                                                
MS.   CARPENETI  replied   it  would   be  the   circumstance  of                                                               
"reckless."  The person  would  have to  know  that the  material                                                               
included the  "lewd" touching  of a  person's genitals,  anus, or                                                               
female breast.                                                                                                                  
                                                                                                                                
SENATOR PASKVAN  said he didn't  understand what the  term "lewd"                                                               
means in that context.                                                                                                          
                                                                                                                                
1:37:55 PM                                                                                                                    
MS.  CARPENETI replied  that's a  question for  a jury;  it's not                                                               
defined in the statutes.                                                                                                        
                                                                                                                                
SENATOR  WIELECHOWSKI  asked  if  the  bill  applies  to  cartoon                                                               
characters.                                                                                                                     
                                                                                                                                
MS. CARPENETI answered no.                                                                                                      
                                                                                                                                
1:38:19 PM                                                                                                                    
CHAIR FRENCH noted  a letter dated today from  the American Civil                                                               
Liberties Union (ACLU)  pointing out that there  is a preliminary                                                               
injunction,  on First  Amendment grounds,  against this  section.                                                               
Mr.  Mittman says  that Section  9 of  the bill  would narrow  AS                                                               
11.61.128(a) "to  only criminalize  the distribution  of material                                                               
'harmful to  minors' by  an adult  if the  recipient is  under 16                                                               
years old  and the  adult is  reckless regarding  the recipient's                                                               
ageā€¦  ."  Mr.  Mittman  goes  on  to say  that  the  bill  is  an                                                               
improvement on the statute that  was enjoined, but it would still                                                               
violate both the  First Amendment and the Commerce  Clause of the                                                               
U.S. Constitution. Senator  French asked Ms. Carpeneti  if DOL is                                                               
in communication with Mr. Mittman on this topic.                                                                                
                                                                                                                                
MS.  CARPENETI  replied  they have  been  in  communication  with                                                               
Michael Bamberger, an attorney who  is working with the litigants                                                               
in this  case. She added that  she had not been  in communication                                                               
with Mr. Mittman, but she had spoken to him.                                                                                    
                                                                                                                                
1:39:42 PM                                                                                                                    
CHAIR FRENCH  said he wasn't  inclined to  ask the ACLU  to write                                                               
the statute,  but they did win  an injunction so there  has to be                                                               
some accommodation.                                                                                                             
                                                                                                                                
MS. CARPENETI  said both sides  have filed motions for  a summary                                                               
judgment, but the court hasn't issued an opinion.                                                                               
                                                                                                                                
CHAIR FRENCH asked how long the motions have been pending.                                                                      
                                                                                                                                
MS.  CARPENETI said  she'd  find out,  but  she believes  they're                                                               
fairly recent.                                                                                                                  
                                                                                                                                
SENATOR  COGHILL   asked  if   the  amended   language  regarding                                                               
"reckless disregard for  the age of the child" would  be a second                                                               
line of proof.                                                                                                                  
                                                                                                                                
MS. CARPENETI answered  it would require the state  to prove that                                                               
the  child was  under  age  16 and  the  person distributing  the                                                               
material was reckless  as to that fact. "Reckless"  is defined in                                                               
the  statutes as  knowing there  is a  high probability  that the                                                               
person  would be  under age  16 and  knowingly disregarding  that                                                               
fact.                                                                                                                           
                                                                                                                                
SENATOR COGHILL  said he was  trying to figure out  why "reckless                                                               
regard" was used instead of "ignoring" or "disregard."                                                                          
                                                                                                                                
1:41:39 PM                                                                                                                    
CHAIR   FRENCH  explained   that  it's   easier  to   prove  than                                                               
"intentional."                                                                                                                  
                                                                                                                                
MS. CARPENETI said this is the  crux of the lawsuit. The argument                                                               
is that  the state  would have  to prove that  the person  who is                                                               
distributing the material knows that  the person is under age 16.                                                               
DOL  uses  the  culpable  mental state  of  "reckless  disregard"                                                               
because it's  a lower  standard. However,  it still  requires the                                                               
state to prove that the person  knew that there was a substantial                                                               
risk that the  person was under age 16  and knowingly disregarded                                                               
that risk.                                                                                                                      
                                                                                                                                
SENATOR COGHILL  surmised that this  is because it's so  easy for                                                               
people to get false IDs.                                                                                                        
                                                                                                                                
CHAIR FRENCH  said he  believes it's less  than that;  you seldom                                                               
ask for identification from anyone  you communicate with, but you                                                               
have a general idea of their age.                                                                                               
                                                                                                                                
SENATOR WIELECHOWSKI asked  why the court said  this violated the                                                               
First Amendment.                                                                                                                
                                                                                                                                
MS.  CARPENETI  said  she  would   follow  up  and  provide  that                                                               
information.                                                                                                                    
                                                                                                                                
1:43:48 PM                                                                                                                    
MSL CARPENETI  continued with the  analysis. Section 10  adds two                                                               
new  crimes   to  the  criminal  code   dealing  with  misconduct                                                               
involving  confidential  information  in  the  first  and  second                                                               
degrees. This  is not specific to  children but it fits  with the                                                               
theme of using new technology  to victimize people. She mentioned                                                               
merchants  that ask  for  a  driver's license  and  then use  the                                                               
information,  sometimes to  commit  a crime;  and new  technology                                                               
that   collects   personal   identification   and   credit   card                                                               
information from  a person's satchel, backpack,  or purse without                                                               
opening it.                                                                                                                     
                                                                                                                                
MS. CARPENETI said that "confidential  information" is defined as                                                               
"information that is defined as  confidential by law." Responding                                                               
to questions,  she agreed to  provide a  list of the  things that                                                               
would  be considered  confidential, and  suggested the  committee                                                               
decide   how   broadly   it  wanted   to   define   "confidential                                                               
information."                                                                                                                   
                                                                                                                                
1:45:49 PM                                                                                                                    
SENATOR PASKVAN  asked if  there's a product  on the  market that                                                               
would shield any  personal information that's inside  a wallet or                                                               
purse.                                                                                                                          
                                                                                                                                
MS. CARPENETI said  she's heard that some women put  a lead liner                                                               
in their purse, but she hasn't heard of anything else.                                                                          
                                                                                                                                
SENATOR  MCGUIRE noted  that she  worked  on legislation  several                                                               
years ago that would inform consumers  if RFID chips were used in                                                               
things like a Carrs card, but  the bill didn't advance because of                                                               
wide-spread opposition.  She asked if  DOL had thought  about the                                                               
scenarios in which that information  would be obtained and if the                                                               
courts would be filled with prosecutions for this new crime.                                                                    
                                                                                                                                
MS. CARPENETI  replied she'd certainly  look at the  minutes from                                                               
those hearings to make sure  they'd thought through the different                                                               
scenarios.                                                                                                                      
                                                                                                                                
1:49:23 PM                                                                                                                    
SENATOR WIELECHOWSKI  asked if  the bill  could also  classify as                                                               
confidential   things  involving   biometrics,  the   methods  of                                                               
identifying  a  person  based  on  things  like  fingerprints  or                                                               
retinal scans.                                                                                                                  
                                                                                                                                
MS.  CARPENETI said  she would  follow  up, but  the statutes  do                                                               
identify certain health records as confidential.                                                                                
                                                                                                                                
Continuing with Section 10, she  said the first degree provision,                                                               
which is a class A  misdemeanor, would be taking the confidential                                                               
information  and using  it  to  commit a  crime  or  to obtain  a                                                               
benefit.  She noted  that the  statutes  define "benefit"  rather                                                               
broadly.                                                                                                                        
                                                                                                                                
Section 11 clarifies  that a person may be  prosecuted for online                                                               
enticement of  a minor  and for  sending an  explicit image  of a                                                               
minor if  the minor was in  Alaska, even if the  defendant was in                                                               
another jurisdiction  at the  time that he  or she  committed the                                                               
prohibited conduct.                                                                                                             
                                                                                                                                
1:51:02 PM                                                                                                                    
Section 12  amends AS 12.55.125(i),  the sentencing  statutes for                                                               
sex crimes, by  conforming the terms of  imprisonment for persons                                                               
who commit unlawful exploitation of  a minor or online enticement                                                               
of a  minor to the  correct level in  accord with the  changes in                                                               
Sections 3-5 of the bill.                                                                                                       
                                                                                                                                
SENATOR PASKVAN suggested drafting the  law to make it illegal to                                                               
be in possession of technology that is used for wrongdoing.                                                                     
                                                                                                                                
CHAIR FRENCH said it's like possession of burglary tools.                                                                       
                                                                                                                                
MS. CARPENETI said she'd have to  think about it because it would                                                               
have to be a specific intent crime.                                                                                             
                                                                                                                                
SENATOR PASKVAN opined that society  should be most worried about                                                               
the people  who have  access to equipment  that can  get personal                                                               
information as  they walk  by you  on the  street. If  they don't                                                               
have  a  legitimate reason  for  possessing  this equipment,  the                                                               
presumption would be that they're using it to steal information.                                                                
                                                                                                                                
SENATOR  MCGUIRE suggested  using the  Oregon law  that prohibits                                                               
the possession  of a radar  detector as  a model and  including a                                                               
rebuttable  presumption for  proving  that  there's a  legitimate                                                               
reason for possessing the equipment.                                                                                            
                                                                                                                                
1:53:51 PM                                                                                                                    
SENATOR  WIELECHOWSKI   asked  how  "unlawful   exploitation"  is                                                               
defined on page 7, line 9.                                                                                                      
                                                                                                                                
MS.  CARPENETI replied  it's the  crime that's  in AS  ll.41.455,                                                               
unlawful exploitation  of a minor.  Basically, it's  the creation                                                               
of child pornography.                                                                                                           
                                                                                                                                
CHAIR  FRENCH asked  how often  DOL prosecutes  online enticement                                                               
and unlawful exploitation of a minor.                                                                                           
                                                                                                                                
MS. CARPENETI  replied there were  7 cases filed last  year under                                                               
the unlawful  exploitation of a  minor statute and 4  cases filed                                                               
under the online enticement of a minor statute.                                                                                 
                                                                                                                                
CHAIR  FRENCH  said  he  has  some  concern  with  enhancing  the                                                               
penalties for crimes that are rarely prosecuted.                                                                                
                                                                                                                                
MS. CARPENETI  responded that  these cases  are very  serious and                                                               
shocking; Sergeant  DeGraaf was  prepared to  testify in  a House                                                               
committee about some of the cases that have been prosecuted.                                                                    
                                                                                                                                
1:56:27 PM                                                                                                                    
CHAIR FRENCH  said he could  not agree  more that these  are very                                                               
serious crimes.                                                                                                                 
                                                                                                                                
MS. CARPENETI  said it's DOL's  position that the  seriousness of                                                               
these crimes is ample justification of the penalties.                                                                           
                                                                                                                                
SENATOR  COGHILL asked  if these  cases  have other  co-occurring                                                               
charges, like kidnapping.                                                                                                       
                                                                                                                                
MS. CARPENETI  said most  of the cases  of child  kidnapping also                                                               
have sexual assaults  and she suspects that it would  be the same                                                               
with these. She offered to follow up.                                                                                           
                                                                                                                                
SENATOR  MCGUIRE  mentioned  the  three  strikes  law  and  asked                                                               
Senator  French to  clarify what  he meant  when he  talked about                                                               
increasing the penalties.                                                                                                       
                                                                                                                                
CHAIR FRENCH said  the section the committee  was just discussing                                                               
incorporates these crimes into the  three strikes scheme. He then                                                               
asked  Ms. Carpeneti  if under  this  bill a  second offense  for                                                               
unlawful  exploitation  of  a  minor  would  be  an  unclassified                                                               
felony, eligible for a 99 year sentence.                                                                                        
                                                                                                                                
1:59:36 PM                                                                                                                    
MS.  CARPENETI  replied that  would  need  to  be stated  in  the                                                               
statute.                                                                                                                        
                                                                                                                                
CHAIR  FRENCH summarized  that the  first offense  would be  an A                                                               
felony, the second  would be an A felony, and  the third would be                                                               
the third strike.                                                                                                               
                                                                                                                                
MS. CARPENETI  clarified that unlawful  exploitation of  a minor,                                                               
which is the creation of this  material, is already in the felony                                                               
sentencing  provisions,  but online  enticement  of  a minor  was                                                               
somehow left out of the  three strikes provision. Under this bill                                                               
it would be a class B felony for  a person who is not required to                                                               
register as a sex offender.                                                                                                     
                                                                                                                                
CHAIR  FRENCH  commented that  in  Alaska  transmission of  child                                                               
pornography  is   horrifically  and  shockingly   prevalent.  The                                                               
resources  that are  being poured  in and  the level  of activity                                                               
would suggest more than four prosecutions a year.                                                                               
                                                                                                                                
MS. CARPENETI said she hopes it will get better.                                                                                
                                                                                                                                
CHAIR  FRENCH  asked if  the  expanded  subpoena power  would  be                                                               
included in this bill in the form of a committee substitute.                                                                    
                                                                                                                                
MS.  CARPENETI answered  yes; she  knows the  committee would  be                                                               
interested in that.                                                                                                             
                                                                                                                                
MS. CARPENETI said  Section 13 deals with  probation officers. It                                                               
clarifies  that while  the commissioner  of corrections  provides                                                               
probation  officers   to  the  superior  court   for  the  active                                                               
supervision of  a person on  probation for felony  offenses, it's                                                               
not required.  The commissioner  may, at  his or  her discretion,                                                               
also  provide probation  officers for  the active  supervision of                                                               
persons released for misdemeanor offenses.                                                                                      
                                                                                                                                
Senator French opened public testimony.                                                                                         
                                                                                                                                
2:04:08 PM                                                                                                                    
TONY  NEWMAN,  Social  Services   Program  Officer,  Division  of                                                               
Juvenile  Justice,  Department  of  Health  and  Social  Services                                                               
(DHSS),  said  DJJ  is concerned  about  the  way  communications                                                               
technology  and  social  media   are  outpacing  the  ability  to                                                               
understand how they impact young  people. Several of the offenses                                                               
that are  the focus of SB  72 can be committed  by unthinking and                                                               
impulsive youths  who think  it's little more  than a  prank, but                                                               
the consequences can be very  long-term and damaging for victims.                                                               
DJJ appreciates that  the governor and the Department  of Law are                                                               
trying to  get ahead of  these issues  before too many  lives are                                                               
ruined.                                                                                                                         
                                                                                                                                
Alaska has a juvenile justice  system that recognizes that minors                                                               
should be managed differently than  adults. The DJJ mission is to                                                               
hold  youth accountable  when they  commit offenses,  but at  the                                                               
same time to  provide opportunities to keep  them from continuing                                                               
to make  mistakes. The bill strikes  a balance and allows  DJJ to                                                               
appropriately  respond  to the  juvenile  given  his/her risk  to                                                               
reoffend  and  his/her needs.  For  example,  the division  could                                                               
refer  a youth  to  a diversion  program such  as  a youth  court                                                               
without requiring them to go through formal court proceedings.                                                                  
                                                                                                                                
The  exception is  the increase  in  the charge  class level  for                                                               
unlawful  exploitation of  a minor.  Class A  felonies against  a                                                               
person are known in the  juvenile system as auto-waiver offenses;                                                               
youths  age 16  and age  17 are  referred directly  to the  adult                                                               
criminal justice  system. Unlawful exploitation  of a minor  is a                                                               
serious offense, but DJJ believes  that when a youth commits this                                                               
crime  it is  counterproductive to  automatically waive  him into                                                               
the  adult  system.  DOL  agrees  and  is  working  to  craft  an                                                               
amendment to address this issue.                                                                                                
                                                                                                                                
2:06:50 PM                                                                                                                    
QUINLAN STEINER, Public Defender for  the State of Alaska, Public                                                               
Defender Agency,  said his  comments would  center on  two topics                                                               
related to  the unintended  consequences in Section  7 of  SB 72.                                                               
The  first  is   the  breadth  and  nature  of   who  it  covers.                                                               
Potentially couples  who exchange photographs via  email would be                                                               
in  violation of  the  statute.  It would  also  cover a  broader                                                               
spectrum  like grandparents  who  electronically  send photos  of                                                               
grandchildren to  their friends  or post  them on  Facebook. That                                                               
would  be criminalized  by this  statute. He  suggested narrowing                                                               
the  language to  target  the intended  situation,  which is  the                                                               
distribution   where   the    broader   distribution   would   be                                                               
embarrassing.  He also  suggested the  bill provide  an exclusion                                                               
for people who are taking and involved in the pictures.                                                                         
                                                                                                                                
MR.  STEINER said  the  other  concern relates  to  the C  felony                                                               
penalty  for  publishing or  distributing  the  depiction on  the                                                               
Internet. The bill refers to  the broad definition of "Internet,"                                                               
which  refers  to   its  physical  nature  and   how  things  are                                                               
transferred. It  would in fact  become a  felony to take  a photo                                                               
and email  it to one person  unless a printed photo  was used for                                                               
the publishing  and distribution.  He said  he believes  what was                                                               
intended was  posting on the  Internet for public  viewing rather                                                               
than  simple  distribution.  He described  this  as  a  technical                                                               
problem.                                                                                                                        
                                                                                                                                
CHAIR FRENCH  said the  committee is focused  on getting  at this                                                               
without including too much.                                                                                                     
                                                                                                                                
2:10:33 PM                                                                                                                    
CHAIR FRENCH announced he would hold SB 72 in committee.                                                                        
                                                                                                                                
                       SB  11-HATE CRIMES                                                                                   
                                                                                                                                
2:10:55 PM                                                                                                                    
CHAIR FRENCH announced the consideration of SB 11.                                                                              
                                                                                                                                
THOMAS  OBERMEYER,  staff  to Senator  Davis,  introduced  SB  11                                                               
speaking to the following sponsor statement:                                                                                    
                                                                                                                                
     This   bill  increases   the   sentencing  for   crimes                                                                    
     motivated  prejudice,  bias,  or hatred  based  on  the                                                                    
     victim's race,  sex, color,  creed, physical  or mental                                                                    
     disability,   sexual   orientation,  gender   identity,                                                                    
     ancestry, or  national origin. This new  crime can only                                                                    
     be  committed when  a  person  commits some  underlying                                                                    
     crime and the person  directed the conduct constituting                                                                    
     the  crime at  the  victim  due to  one  of the  listed                                                                    
     characteristics of the victim.  The new crime increases                                                                    
     the classification of the underlying crime one level.                                                                      
                                                                                                                                
     Without creating a  new list of "hate  crimes" under AS                                                                    
     11.76,  new  Sec.  11.76.150  simply  reclassifies  the                                                                    
     level  of  any  crime  up one  notch  if  motivated  by                                                                    
     prejudice, bias, or hatred based  on the victim's race,                                                                    
     sex,  color,  creed,  physical  or  mental  disability,                                                                    
     sexual  orientation,  gender   identity,  ancestry,  or                                                                    
     national  origin. For  example, a  class B  misdemeanor                                                                    
     becomes a  class A misdemeanor;  a class  A misdemeanor                                                                    
     becomes  a C  felony;  a  class C  felony  becomes a  B                                                                    
     felony,   etc.   Such  reclassification,   of   course,                                                                    
     increases    the   penalties    appropriate   to    the                                                                    
     classification in  sentencing under AS 12.55.  The bill                                                                    
     also amends AS  12.55.155(c)(22), an aggravating factor                                                                    
     as   sentencing  for   felonies,   by  adding   "sexual                                                                    
     orientation"  and  "gender  identity" to  the  list  of                                                                    
     protected characteristics.                                                                                                 
                                                                                                                                
     The need  for this  bill is demonstrated  by increasing                                                                    
     reports   of   violence   against   homeless   persons,                                                                    
     minorities, religious  groups, and others  motivated by                                                                    
     prejudice, bias,  and hatred  in Alaska and  across the                                                                    
     country  in   our  highly  diverse   and  multicultural                                                                    
     society. When crimes are  committed because of people's                                                                    
     differences,  the effects  reverberate beyond  a single                                                                    
     victim or group into  an entire community, city, state,                                                                    
     and society  as a whole.  While this bill  alone cannot                                                                    
     eliminate prejudice,  bias, or  hatred, it will  send a                                                                    
     message that Alaskans will not  tolerate hate crimes in                                                                    
     any   form,   and   sentencing   for   them   will   be                                                                    
     substantially increased.                                                                                                   
                                                                                                                                
2:14:09 PM                                                                                                                    
SENATOR MCGUIRE asked if he'd read the February 16, 2011 letter                                                                 
from the ACLU.                                                                                                                  
                                                                                                                                
MR. OBERMEYER  answered yes; Mr.  Mittman was concerned  that the                                                               
language  didn't conform  to the  language in  the federal  bill.                                                               
However, the  drafter indicated that  it would be  unnecessary to                                                               
add the  federal language because  most of this comes  under Rule                                                               
404  relating  to  Character Evidence  Not  Admissible  to  Prove                                                               
Conduct.  Furthermore, it's  understood  by  prosecutors and  has                                                               
worked well in the past.                                                                                                        
                                                                                                                                
SENATOR MCGUIRE said she liked the  idea of using the language in                                                               
the Matthew  Shepard and  James Byrd  Jr. Hate  Crimes Prevention                                                               
Act because  it maintains consistency,  but she was  also looking                                                               
for  a comment  on the  examples  on page  2 of  the letter  that                                                               
delineate  between two  situations  of  offering evidence.  These                                                               
examples  of racism  are repugnant,  but the  right to  speak and                                                               
freely  associate  is protected.  The  ACLU  is saying  that  the                                                               
language  in the  bill  is  overly broad  and  vague and  instead                                                               
suggests the following:                                                                                                         
                                                                                                                                
     In  a prosecution  for an  offense under  this section,                                                                    
     evidence   of  expression   or   associations  of   the                                                                    
     defendant   may  not   be  introduced   as  substantive                                                                    
     evidence  at trial,  unless  the evidence  specifically                                                                    
     relates to that offense.                                                                                                   
                                                                                                                                
     However, nothing in this section affects the rules of                                                                      
     evidence governing the impeachment of a witness.                                                                           
                                                                                                                                
SENATOR MCGUIRE asked Mr. Obermeyer to comment.                                                                                 
                                                                                                                                
2:18:56 PM                                                                                                                    
MR. OBERMEYER reiterated  that Mr. Luckhaupt's view  was that the                                                               
additional language  was unnecessary. Prosecutors deal  with this                                                               
language  on a  daily basis  and  have been  successful with  the                                                               
current definition of aggravation  under AS 12.55.155(c)(22). Mr.                                                               
Luckhaupt believes that  nothing in SB 11 overrides  the rules of                                                               
evidence. He  suggested the committee get  additional information                                                               
from the  drafter and the  Department of Law (DOL)  before making                                                               
any  changes.  SB 11  simply  seeks  to change  the  definitional                                                               
aggravators,  including sexual  orientation and  gender identity,                                                               
without addressing additional associational rights.                                                                             
                                                                                                                                
He  mentioned  the  paint ball  attacks  targeting  Natives  that                                                               
precipitated  the bill  initially and  noted that  Senator French                                                               
indicated  that   proving  motive  can  be   very  difficult  for                                                               
prosecutors, even in the best of circumstances.                                                                                 
                                                                                                                                
CHAIR FRENCH assured  Mr. Obermeyer that the  committee would get                                                               
a good array of advice before  the bill is passed. He then opened                                                               
public testimony.                                                                                                               
                                                                                                                                
2:23:16 PM                                                                                                                    
SLADE MARTIN,  representing himself,  testified in support  of SB                                                               
11. He  stated that he became  aware of the bill  while attending                                                               
the Youth  Policy Summit and was  immediately intrigued. Buckling                                                               
down on  the consequences  for committing acts  of hate  based on                                                               
any of the  protected clauses is an amazing idea,  he said. Doing                                                               
so would  send a  message that Alaska  cares about  its residents                                                               
and  their  safety.  Victims  would regain  a  sense  of  safety,                                                               
justice,  and  trust in  the  legal  system. Victims  often  feel                                                               
confused, self-loathing,  alone, and  scared. Sometimes  they are                                                               
suicidal.  Suicide is  a problem  in this  state so  passing this                                                               
bill may  be a step toward  prevention. Everyone is aware  of the                                                               
epidemic  of  teen bullying  based  on  sexual orientation  where                                                               
suicide has been  the unfortunate end result. Mr.  Martin said he                                                               
had  experienced hate  based on  his sexual  orientation and  the                                                               
experiences were  terrifying. As violence becomes  more prevalent                                                               
and  accepted,   he  fears  for  himself,   his  loved-ones,  the                                                               
community, and future generations.                                                                                              
                                                                                                                                
2:25:49 PM                                                                                                                    
SHAYLE HUTCHISON,  Board Member, Alaskans Together  for Equality,                                                               
stated that  passing SB  11 is  a way to  increase the  safety of                                                               
residents and the  sense of justice for  Alaska communities. When                                                               
a  person is  assaulted  he  or she  feels  fear, oppression  and                                                               
trauma, but  when a person is  attacked based on bias  it affects                                                               
an  entire group  of people.  It changes  the dynamics  of how  a                                                               
community functions. It changes how  people act in public places,                                                               
where  they go,  how  they walk  down the  street,  and how  they                                                               
express   themselves.  Apart   from  the   psychological  effect,                                                               
violence that  is based on  bias increases the opportunity  for a                                                               
retaliatory attack  followed by  a counter retaliatory  act. That                                                               
ripple of violence  will continue until there's  a strong message                                                               
that  these   kinds  of  crimes   will  not  be   tolerated.  The                                                               
Legislature  has the  opportunity  to send  a  strong message  by                                                               
passing SB 11.                                                                                                                  
                                                                                                                                
MS.  HUTCHISON  said  she particularly  appreciates  that  sexual                                                               
orientation and gender identity were  added. In Alaska we need to                                                               
send a  message that a  person has  an absolute right  to believe                                                               
what he or she wants to believe  and to hold the values he or she                                                               
wants to hold, but no one has  a right to impose their beliefs or                                                               
values on  another person  using violence,  coercion, oppression,                                                               
or fear.                                                                                                                        
                                                                                                                                
2:29:19 PM                                                                                                                    
NELSON  ANGAPAK,  Senior  Vice President,  Alaska  Federation  of                                                               
Natives,   requested   that   the  AFN   written   statement   be                                                               
incorporated into  the record.  He proposed  a moment  of silence                                                               
and then  stated that  66 years ago  when the  Territorial Senate                                                               
met to discuss equal rights,  many spoke against this and refused                                                               
to recognize that this was  a problem. Elizabeth Peratovich spoke                                                               
to the  issue of  prejudice and injustice  stating, "I  would not                                                               
have expected that  I, who am barely out of  savagery, would have                                                               
to  remind  gentlemen  with  five   thousand  years  of  recorded                                                               
civilization behind them, of our Bill of Rights."                                                                               
                                                                                                                                
MR. ANGAPAK further stated that  the Alaska Federation of Natives                                                               
fully supports elevating the punishment  for hate crimes based on                                                               
race, [ sex, color, creed,  physical or mental disability, sexual                                                               
orientation,  gender  identity,  ancestry, or  national  origin.]                                                               
They  hope  that   elevating  the  penalties  will   serve  as  a                                                               
deterrent. He urged the committee  to report SB 11 from committee                                                               
and speak favorably when it reaches the Senate floor.                                                                           
                                                                                                                                
2:33:50 PM                                                                                                                    
KATE  BURKHART, Executive  Director, Alaska  Mental Health  Board                                                               
(AMHB)and  Advisory  Board  on  Alcoholism  and  Drug  Abuse  and                                                               
Statewide  Suicide Prevention  Council, said  she would  focus on                                                               
why the mental health board supports  SB 11 and the protection it                                                               
affords this unique constituency.  According to the Department of                                                               
Justice (DOJ),  people who have  a disability are 2-3  times more                                                               
likely to be the victim of  a violent crime. Sometimes the attack                                                               
is based  solely on the  disability, which leads AMHB  to believe                                                               
that this additional protection is appropriate.                                                                                 
                                                                                                                                
The DOJ  reports that of the  crimes that are motivated  based on                                                               
hate  toward a  suspect  class, the  crimes  against people  with                                                               
disabilities are  in the minority.  Most hate crimes  occur based                                                               
on  race, faith  affiliation, and  then gender.  However, of  the                                                               
victims who  report being targeted  because of  their disability,                                                               
three-fourths of  the attacks are  because of a mental  health or                                                               
cognitive  disability.  DOJ  also  reports  that  half  of  those                                                               
victims  report  multiple  disabilities,  which  compounds  their                                                               
vulnerability.  The  Alaska  Mental Health  Board  supports  this                                                               
prioritized  protection,   but  it's   also  important   from  an                                                               
education and  policy-making standpoint. The National  Council on                                                               
Disability, the  National Center  for Victims  of Crime,  and the                                                               
Association of  University Centers on Disability  have called for                                                               
increased  public   education  and  policy  changes   to  prevent                                                               
victimization of people with disabilities.  SB 11 goes a long way                                                               
to achieve those goals.                                                                                                         
                                                                                                                                
2:36:46 PM                                                                                                                    
KELLI BURKINSHAW,  Board Member, Alaskans Together  for Equality,                                                               
stated  that as  a  member of  a board  that  advocates for  gay,                                                               
lesbian, bisexual,  and transgender  rights, she  would encourage                                                               
the committee to pass the bill as quickly as possible.                                                                          
                                                                                                                                
2:37:44 PM                                                                                                                    
JEFFERY  MITTMAN,  Executive  Director,  Alaska  Civil  Liberties                                                               
Union (ACLU),  said SB  11 is an  important piece  of legislation                                                               
and the  ACLU is gratified to  see that gender identity  has been                                                               
included.  Statistics  show   that  transgender  individuals  are                                                               
targeted for violence. It's important,  however, to balance these                                                               
protections   with  First   Amendment   rights   of  speech   and                                                               
association. While  the ACLU doesn't support  repugnant speech or                                                               
hateful groups, it  is incumbent on them to protect  the right of                                                               
individuals to say things that are hurtful and hateful.                                                                         
                                                                                                                                
MR. MITTMAN  pointed out that  as currently drafted, the  bill is                                                               
susceptible to a facial challenge.  Without the limiting language                                                               
that  he  suggested  in  the  February 16,  2011  letter  to  the                                                               
committee,  SB 11  could be  construed to  chill First  Amendment                                                               
associational rights.  The limiting  language would not  harm the                                                               
bill  because   it  would   not  limit   the  ability   to  bring                                                               
prosecutions, but it  would make it clear that  the evidence must                                                               
relate  commission of  a crime.  He urged  the committee  to work                                                               
with  DOL, the  sponsor, and  the drafter  to make  the suggested                                                               
modifications.                                                                                                                  
                                                                                                                                
SENATOR PASKVAN  asked if  attacks on  homeless people  would fit                                                               
within one of the classifications in the bill.                                                                                  
                                                                                                                                
MR. MITTMAN said  yes to the extent that the  homeless person was                                                               
targeted based on race or a  physical or mental disability. But a                                                               
homeless  person who  was of  a majority  race and  not suffering                                                               
from  a  disability,  potentially  could  be  left  out  of  this                                                               
protection.                                                                                                                     
                                                                                                                                
CHAIR  FRENCH asked  why  the ACLU  was  raising First  Amendment                                                               
issues of associational rights when  they weren't raised when the                                                               
bill was introduced in previous years.                                                                                          
                                                                                                                                
2:41:07 PM                                                                                                                    
MR. MITTMAN replied  they did raise similar issues  when the bill                                                               
was  introduced  last session.  The  ACLU  suggested the  sponsor                                                               
include gender  identity, which has  been accomplished,  but they                                                               
also raised  First Amendment concerns.  He said he  would forward                                                               
that written  testimony. The Matthew  Shepard and James  Byrd Jr.                                                               
Hate  Crimes  Prevention  Act  makes  explicit  that  because  of                                                               
associational  and  free  speech  issues, the  evidence  must  be                                                               
carefully limited.                                                                                                              
                                                                                                                                
SENATOR  WIELECHOWSKI  asked  if  he believes  that  the  current                                                               
statute   is  unconstitutional   because   that  language   isn't                                                               
included.                                                                                                                       
                                                                                                                                
MR. MITTMAN said  the protections are currently  in AS 12.55.155,                                                               
the  aggravator section.  Potentially,  the  way the  aggravating                                                               
evidence  is introduced  could be  susceptible to  an as  applied                                                               
challenge, but because this bill  creates the crime of motivation                                                               
by prejudice, it raises the concern to a higher level.                                                                          
                                                                                                                                
SENATOR  WIELECHOWSKI noted  that the  statute says  it's against                                                               
the  law  to discriminate  based  on  race  so if  the  suggested                                                               
language were adopted  you couldn't introduce the  fact that some                                                               
was a  member of the  Ku Klux Klan,  for example. I  believe that                                                               
would be  relevant evidence in  a racial discrimination  case, he                                                               
said.                                                                                                                           
                                                                                                                                
MR.  MITTMAN reviewed  the  current statute  and  opined that  it                                                               
could  potentially allow  introduction  of associational  rights,                                                               
and  that introduction,  on  its  own, is  susceptible  to an  as                                                               
applied  challenge on  First Amendment  grounds.  For example,  a                                                               
defendant would  not be allowed  to state that  he or she  had no                                                               
bias whatsoever and open the door  to evidence that he or she did                                                               
in fact  have bias. The  ACLU believes  that the language  in the                                                               
federal legislation strikes an  appropriate balance. A prosecutor                                                               
would  be allowed  to introduce  necessary evidence  to establish                                                               
the  elements  of  the  crime,  but  not  so  broadly  as  to  be                                                               
susceptible to a constitutional challenge.                                                                                      
                                                                                                                                
CHAIR FRENCH  said it's an  interesting issue that  the committee                                                               
would ponder.                                                                                                                   
                                                                                                                                
2:45:08 PM                                                                                                                    
WANDA GREENE,  President, NAACP Anchorage, stated  that the local                                                               
NAACP,  in line  with the  national  NAACP, supports  SB 11.  She                                                               
noted that  the national NAACP  unanimously supported  passage of                                                               
the Matthew  Shepard and  James Byrd  Jr. Hate  Crimes Prevention                                                               
Act. Part of  the NAACP mission is to ensure  social and economic                                                               
equality  for all  citizens  to achieve  equality  of rights  and                                                               
eliminate race prejudice among citizens  in the community and the                                                               
state. The national  NAACP has backed social issues  such as this                                                               
legislation to  eliminate discrimination where ever  it is found.                                                               
She said she  was pleased to see that  gender identity, ancestry,                                                               
or national origin was added to this legislation.                                                                               
                                                                                                                                
2:47:20 PM                                                                                                                    
CHAIR FRENCH closed public testimony and announced he would hold                                                                
SB 11 in committee.                                                                                                             
                                                                                                                                
           SB  39-U.S. PRESIDENTIAL ELECTION COMPACT                                                                        
                                                                                                                                
2:47:43 PM                                                                                                                    
CHAIR FRENCH announced the consideration of SB 39 and stated                                                                    
that public testimony would be taken during a subsequent                                                                        
hearing.                                                                                                                        
                                                                                                                                
He read the sponsor statement into the record as follows:                                                                       
                                                                                                                                
     If there is  one bedrock rule in elections  it is this:                                                                    
     the  person with  the most  votes is  the winner.  This                                                                    
     legislation  would  guarantee  the  Presidency  to  the                                                                    
     candidate  who receives  the most  votes in  the United                                                                    
     States.                                                                                                                    
                                                                                                                                
     The concept  of 'the person  with the most  votes wins'                                                                    
     is simple, but it hasn't  always worked out that way in                                                                    
     our Presidential elections.                                                                                                
                                                                                                                                
     In 1876 Samuel Tilden  received 254,000 more votes that                                                                    
     Rutherford  Hayes;  however,  Hayes won  the  Electoral                                                                    
     College tally  by one  vote by having  won a  number of                                                                    
     states by very small  margins. In 1888 Grover Cleveland                                                                    
     led in  the popular  vote over Benjamin  Harrison, 48.6                                                                    
     percent  to   47.8  percent,   but  Harrison   won  the                                                                    
     Electoral  College  by  a 233-168  margin,  largely  by                                                                    
     virtue of his  1 percent win in  Cleveland's home state                                                                    
     of New  York. In 2000 Al  Gore won the popular  vote by                                                                    
     just  over  500,000 votes  but  lost  in the  Electoral                                                                    
     College  to George  Bush 266-271.  In 2004  a shift  of                                                                    
     only  60,000 votes  in Ohio  from George  Bush to  John                                                                    
     Kerry  would   have  resulted  in  Kerry   winning  the                                                                    
     Electoral College  despite losing  the popular  vote by                                                                    
     over 3 million votes.                                                                                                      
                                                                                                                                
     SB  39   corrects  this  defect  in   our  Presidential                                                                    
     elections not by doing away  with the Electoral College                                                                    
     but by  modifying how each state's  electoral votes are                                                                    
     cast.  Currently the  state's  Electoral College  votes                                                                    
     are cast  100% in favor  of the popular vote  winner in                                                                    
     the state.  The bill would  have Alaska join  a compact                                                                    
     made  up of  states  that have  pledged  to cast  their                                                                    
     electoral votes  in favor of the  national popular vote                                                                    
     winner.  The compact  would not  go  into effect  until                                                                    
     enough  states have  joined to  put a  majority of  the                                                                    
     Electoral College votes in the compact.                                                                                    
     The  choice of  how  to allocate  our  vote within  the                                                                    
     Electoral  College  was  given  to us  by  Article  II,                                                                    
     Section I of the  US Constitution. The founding fathers                                                                    
     of  our country  left  the decision  on  how to  select                                                                    
     electors up  to each individual state  legislature. The                                                                    
     US Supreme Court has written  that "the appointment and                                                                    
     mode of  appointment of electors belong  exclusively to                                                                    
     the  states  under  the   constitution  of  the  United                                                                    
     States."  McPherson  v.  Blacker,  146  U.S.  1  at  29                                                                    
     (1892).                                                                                                                    
                                                                                                                                
     Many believe that the  current system causes candidates                                                                    
     to  focus  on swing  states,  and  swing state  issues,                                                                    
     instead of  approaching the country  as a whole.  It is                                                                    
     beyond   dispute   that   under  the   current   system                                                                    
     candidates  spend their  campaign funds  on just  a few                                                                    
     states.  Here's an  example of  how this  plays out  in                                                                    
     Alaska. During the final 40  days of the 2008 election,                                                                    
     99% of all  media expenditures were made  in 17 states.                                                                    
     Alaska, needless to say, was not one of them.                                                                              
     In  a  close  presidential election  that  decides  our                                                                    
     country's future,  all states  should be  swing states.                                                                    
     Every vote should count, and  should be sought by every                                                                    
     candidate.  This  bill   will  promote  truly  national                                                                    
     presidential  campaigns, and  it will  ensure that  the                                                                    
     person sent to  occupy the most powerful  office in the                                                                    
     world  is  the  one  who  got the  most  votes  in  the                                                                    
     election.                                                                                                                  
                                                                                                                                
2:51:15 PM                                                                                                                    
CHAIR FRENCH  said he was surprised  to learn that the  method of                                                               
awarding  electoral  votes  has changed  substantially  over  the                                                               
years. In 1789 when George Washington  was elected, only a few of                                                               
the Electoral  College electors were  selected by  election; most                                                               
were  assigned by  the state  legislators. The  U.S. Constitution                                                               
specifically identifies  state legislators  as the  sole arbiters                                                               
of how electoral votes are awarded.                                                                                             
                                                                                                                                
SB 39  is about  ensuring that the  Electoral College  awards the                                                               
presidency  to the  person who  got the  most votes.  Absent some                                                               
action by Congress  to undo the Electoral College, this  is a way                                                               
to achieve that goal.                                                                                                           
                                                                                                                                
2:52:58 PM                                                                                                                    
ANDY  MODEROW, staff  to  Senator  French, said  SB  39 adds  new                                                               
sections to  AS 15.30,  which pertains  to national  elections in                                                               
the state. He provided the following sectional analysis:                                                                        
                                                                                                                                
Section 1  - page  1, lines  9-13, outline  that Alaska  joins in                                                               
this compact with the other states that enact it.                                                                               
                                                                                                                                
Article  I  of  the  compact  outlines that  any  state  and  the                                                             
District of Colombia may join in the compact.                                                                                   
                                                                                                                                
Article II of  the compact requires that member  states conduct a                                                             
statewide popular election for president and vice president.                                                                    
                                                                                                                                
Article III  of the compact  discusses how  presidential electors                                                             
are selected.                                                                                                                   
-  Page 2,  lines  9-14,  require member  states  to count  state                                                               
votes,  and calculate  a  national popular  vote  total for  each                                                               
presidential slate.                                                                                                             
- Page  2, lines  15-16, require the  state election  official to                                                               
designate the  national popular  vote winner.  In Alaska  this is                                                               
the director of the Division of Elections.                                                                                      
-  Page   2,  lines  17-19,  require   the  presidential  elector                                                               
certifying official in  Alaska to certify the  appointment of the                                                               
winning candidate's elector slate.                                                                                              
- Page  2, lines  20-24, require  that member  states communicate                                                               
state vote totals at least  six days before presidential electors                                                               
meet and  cast votes.  This is  a federal  law reiterated  in the                                                               
compact.                                                                                                                        
- Page  2, lines  25-28, require  each member  state to  treat as                                                               
conclusive  an  official  statement   containing  the  number  of                                                               
popular votes in a state for  each presidential slate, on the day                                                               
currently  required  by  law  for   states  to  make  that  final                                                               
determination. This is a federal law reiterated in the compact.                                                                 
- Page 2, line  29, through page 3, line 1,  makes it clear that,                                                               
in case of a national popular  vote tie, states are to cast their                                                               
electoral votes as determined by state vote totals.                                                                             
- Page  3, lines 2-7,  outline procedures  in case the  number of                                                               
presidential electors nominated in a  member state does not equal                                                               
the number of electoral votes the state is entitled to.                                                                         
- Page 3, lines 8-9, require  public disclosure of vote totals as                                                               
they are determined or obtained.                                                                                                
-  Page 3,  lines 10-12,  require  that this  compact govern  the                                                               
appointment of presidential  electors if it is active  on July 20                                                               
of a presidential election year.                                                                                                
                                                                                                                                
2:56:06 PM                                                                                                                    
Article IV of the compact contains other provisions.                                                                          
-  Page 3,  lines 14-16,  set when  this compact  becomes active.                                                               
When a majority  of Electoral College votes are  governed by this                                                               
compact, it takes effect.                                                                                                       
- Page  3, lines 17-20,  allow that  any state may  withdraw from                                                               
this  compact,  but  not  during   the  final  six  months  of  a                                                               
president's term. This July 20  through January 20 blackout is to                                                               
provide  for  set election  procedures  going  into the  election                                                               
season.                                                                                                                         
- Page  3, lines 21-24,  require that member states  notify other                                                               
member states when the compact is enacted, or withdrawn.                                                                        
-  Page 3,  line 25,  terminates  this compact  if the  Electoral                                                               
College is abolished.                                                                                                           
-  Page  3,  lines  26-27,   provide  for  severability  of  each                                                               
component of this Act.                                                                                                          
                                                                                                                                
Article V provides definitions. To highlight a few:                                                                           
- (A)  on page  3, lines  29-31, clarify  who the  chief election                                                               
official is in  each state. In Alaska, it is  the director of the                                                               
Division of Elections.                                                                                                          
-  (E)  on  page  4,   lines  8-10,  discuss  who  certifies  the                                                               
appointment of  presidential electors.  In Alaska,  under current                                                               
statute AS  15.30.060, this  is the director  of the  Division of                                                               
Elections.                                                                                                                      
- Page  4, lines 22-24, declare  that the Alaska director  of the                                                               
Division of  Elections is the  chief election  official described                                                               
by the compact.                                                                                                                 
                                                                                                                                
Section  2 -  page 4,  lines  25-29, adjust  AS 15.30.060  (which                                                               
relates to  notification of electors)  to adapt when  the compact                                                               
is activated.                                                                                                                   
                                                                                                                                
Section 3 -  page 4, lines 30-31, through page  5, lines 1-9, add                                                               
a new  subsection to  AS 15.30.060.  It requires  notification of                                                               
electors  as outlined  by the  compact,  and not  as outlined  by                                                               
current law.                                                                                                                    
                                                                                                                                
Section 4  - page 5, lines  11-19, adjust AS 15.30.090,  which is                                                               
the  current  Duties  of  Electors statute,  to  adapt  when  the                                                               
compact is activated.                                                                                                           
                                                                                                                                
Section 5 - page  5, lines 20-31, through page 6,  line 1, adds a                                                               
new  subsection to  the  current duties  of  elector statute.  It                                                               
clarifies that  elector duties are  outlined by the  compact, not                                                               
current statutes.                                                                                                               
                                                                                                                                
MR. MODEROW offered to answer questions.                                                                                        
                                                                                                                                
2:58:32 PM                                                                                                                    
CHAIR FRENCH asked the committee to hold their questions until                                                                  
the next hearing on SB 39.                                                                                                      
                                                                                                                                
2:58:50 PM                                                                                                                    
There being no further business to come before the committee,                                                                   
Chair French adjourned the Senate Judiciary Standing Committee                                                                  
meeting at 2:58 p.m.                                                                                                            
                                                                                                                                

Document Name Date/Time Subjects
SB 11 Sponsor Statement.pdf SJUD 2/16/2011 1:30:00 PM
SB 11
SB 11 Support Material.pdf SJUD 2/16/2011 1:30:00 PM
SB 11
SB 11 Sectional Summary 27-LS0087A.pdf SJUD 2/16/2011 1:30:00 PM
SB 11
SB 11 Letters.pdf SJUD 2/16/2011 1:30:00 PM
SB 11
SB 39 Sponsor Statement.pdf SJUD 2/16/2011 1:30:00 PM
SB 39
SB 39 Sectional.pdf SJUD 2/16/2011 1:30:00 PM
SB 39
SB 39 One Page Summary.pdf SJUD 2/16/2011 1:30:00 PM
SB 39
SB 39 Editorials.pdf SJUD 2/16/2011 1:30:00 PM
SB 39
SB 39 Alaska Poll Results.pdf SJUD 2/16/2011 1:30:00 PM
SB 39