04/23/2021 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB82 | |
| SJR4 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| += | SJR 4 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | SB 82 | TELECONFERENCED | |
| += | SB 122 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
April 23, 2021
1:34 p.m.
MEMBERS PRESENT
Senator Roger Holland, Chair
Senator Mike Shower, Vice Chair
Senator Shelley Hughes
Senator Robert Myers
Senator Jesse Kiehl
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
SENATE BILL NO. 82
"An Act relating to elections and election investigations."
- HEARD & HELD
SENATE JOINT RESOLUTION NO. 4
Proposing an amendment to the Constitution of the State of
Alaska relating to abortion.
- MOVED SJR 4 OUT OF COMMITTEE
SENATE BILL NO. 122
"An Act relating to the definition of 'victim.'"
- BILL HEARING CANCELED
PREVIOUS COMMITTEE ACTION
BILL: SB 82
SHORT TITLE: ELECTIONS; ELECTION INVESTIGATIONS
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
02/12/21 (S) READ THE FIRST TIME - REFERRALS
02/12/21 (S) JUD, STA, FIN
03/01/21 (S) JUD AT 1:30 PM BUTROVICH 205
03/01/21 (S) Heard & Held
03/01/21 (S) MINUTE(JUD)
04/12/21 (S) JUD AT 1:30 PM BUTROVICH 205
04/12/21 (S) Heard & Held
04/12/21 (S) MINUTE(JUD)
04/21/21 (S) JUD AT 1:30 PM BUTROVICH 205
04/21/21 (S) <Bill Hearing Canceled>
04/23/21 (S) JUD AT 1:30 PM BUTROVICH 205
BILL: SJR 4
SHORT TITLE: CONST. AM: ABORTION/FUNDING
SPONSOR(s): SENATOR(s) HUGHES
01/22/21 (S) PREFILE RELEASED 1/8/21
01/22/21 (S) READ THE FIRST TIME - REFERRALS
01/22/21 (S) HSS, JUD, FIN
03/16/21 (S) HSS AT 1:30 PM BUTROVICH 205
03/16/21 (S) Heard & Held
03/16/21 (S) MINUTE(HSS)
03/23/21 (S) HSS AT 1:30 PM BUTROVICH 205
03/23/21 (S) Moved SJR 4 Out of Committee
03/23/21 (S) MINUTE(HSS)
03/24/21 (S) HSS RPT 3DP 1DNP 1NR
03/24/21 (S) DP: WILSON, COSTELLO, HUGHES
03/24/21 (S) DNP: BEGICH
03/24/21 (S) NR: REINBOLD
04/16/21 (S) JUD AT 1:30 PM BUTROVICH 205
04/16/21 (S) Heard & Held
04/16/21 (S) MINUTE(JUD)
04/23/21 (S) JUD AT 1:30 PM BUTROVICH 205
WITNESS REGISTER
CORI MILLS, Senior Assistant Attorney General
Labor & State Affairs Section
Civil Division
Department of Law
Juneau, Alaska
POSITION STATEMENT: Answered questions during the discussion of
SB 82.
NANCY MEADE, General Counsel
Administrative Offices
Alaska Court System
Anchorage, Alaska
POSITION STATEMENT: Testified and answered questions during the
discussion of SB 82.
CATHY SCHLINGHYDE, Staff
Senator Jesse Kiehl
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Answered questions on behalf of Senator
Kiehl during the discussion of SJR 4.
ANDREW DUNMIRE, Attorney
Legislative Legal Services
Legislative Affairs Agency
Juneau, Alaska
POSITION STATEMENT: Answered questions during the discussion of
SJR 4.
ACTION NARRATIVE
1:34:01 PM
CHAIR ROGER HOLLAND called the Senate Judiciary Standing
Committee meeting to order at 1:34 p.m. Present at the call to
order were Senators Myers, Hughes, Shower, Kiehl, and Chair
Holland.
SB 82-ELECTIONS; ELECTION INVESTIGATIONS
1:34:42 PM
CHAIR HOLLAND announced the consideration of SENATE BILL NO. 82,
"An Act relating to elections and election investigations."
[This was the third hearing for SB 82. SB 82 was previously
heard on 3/1/21 and 4/12/21.]
1:34:56 PM
At ease
1:35:08 PM
CHAIR HOLLAND reconvened the meeting
1:35:28 PM
CORI MILLS, Senior Assistant Attorney General, Labor & State
Affairs Section, Civil Division, Department of Law, Juneau,
Alaska, stated she will provide input on amendments to SB 82.
[Amendment 5 was offered prior to Amendments 1 through 4 being
taken up.]
1:36:46 PM
SENATOR HUGHES made a motion to adopt Amendment 5, [work order
32-GS1615\A.10].
32-GS1645\A.10
Klein
4/22/21
AMENDMENT 5
OFFERED IN THE SENATE BY SENATOR HUGHES
TO: SB 82
Page 1, line 7:
Delete "30"
Insert "60"
Page 1, line 8, following "after":
Insert "certification of"
Page 1, line 9:
Delete "30"
Insert "60"
Page 2, lines 3 - 22:
Delete all material and insert:
"(c) In conducting an investigation under this
section, if the attorney general has reason to believe
that a person has information relevant to the
investigation, the attorney general may
(1) issue a subpoena requiring the person
to provide testimony and answer questions under oath,
subject to penalty of perjury,
(A) in person, virtually, or by telephone,
at the discretion of the attorney general;
(B) at the location and date and time
stated in the subpoena;
(C) not less than seven days after service
of the subpoena, unless a court order allows for
expedited testimony;
(2) issue a subpoena duces tecum requiring
the person to produce for inspection, copying, and
testing any books, records, documents, or
electronically stored information within 30 days,
unless the court orders an expedited response;
electronically stored information shall be translated,
if necessary, into a reasonably useable form;
(3) issue interrogatories to the person,
which shall be signed under oath, subject to penalty
of perjury, and provided to the attorney general
within 30 days unless a court orders an expedited
response;
(4) obtain relevant records and information
from a state agency upon written request to the agency
head; if the records or information requested by the
attorney general are required by law to remain
confidential, the state agency shall provide the
records or information and designate them as
confidential; the attorney general shall keep
confidential any records or information designated as
confidential, except when disclosure is necessary to
file an action under this section or to comply with
state or federal law or a court order.
(d) The attorney general shall serve a subpoena,
subpoena duces tecum, or interrogatory issued under
(c) of this section in the manner prescribed by
AS 44.62.430. The attorney general may initiate
contempt proceedings in the manner prescribed by
AS 44.62.590 against a person who fails in whole or in
part to respond to a subpoena, subpoena duces tecum,
or interrogatory issued under (c) of this section.
(e) Before serving a subpoena, subpoena duces
tecum, or interrogatories, the attorney general may
file an ex parte petition in superior court seeking an
order requiring the person to respond to the subpoena,
subpoena duces tecum, or interrogatory sooner than
permitted under (c) of this section. The order shall
be issued by a judge upon a showing of probable cause
that a violation of this chapter, excluding AS 15.13,
has been committed, is being committed, or is about to
be committed and that there is reason to believe an
expedited response may be necessary under the
circumstances. The order may also designate a deadline
by which the recipient of a subpoena, subpoena duces
tecum, or interrogatory must file an action in
superior court to quash the subpoena.
(f) A person who is served with a subpoena,
subpoena duces tecum, or interrogatory under (c) of
this section may file an action in superior court to
quash the subpoena, subpoena duces tecum, or
interrogatory not later than 10 days after being
served, unless an earlier time is designated by the
court under (e) of this section. An action brought
under this subsection shall be considered on an
expedited basis. The court may hear evidence and
argument from the attorney general in an ex parte
setting. The court may quash a subpoena, subpoena
duces tecum, or interrogatory only after finding the
subpoena, subpoena duces tecum, or interrogatory is
not reasonably calculated to aid in a good faith
investigation of an alleged violation of this
chapter."
Reletter the following subsections accordingly.
Page 2, line 23:
Delete "(f)"
Insert "(h)"
Page 3, line 3:
Delete "remain confidential under (e)"
Insert "is not a public record under (g)"
Page 3, line 4:
Delete "(g)"
Insert "(i)"
Page 3, line 10:
Delete "(g)"
Insert "(i)"
Page 3, line 14:
Delete "civil penalty"
Insert "fine"
CHAIR HOLLAND objected for discussion purposes.
1:36:58 PM
SENATOR HUGHES explained the intent of Amendment 5. On page 1,
line 7, the language would change from "30 days from the date of
an election" to "60 days from the certification of an election"
to give individuals additional time to file complaints with the
Division of Elections. Secondly, it would require information
sharing between the agency and the attorney general's office. On
page 2, lines [3-22], the language would allow the attorney
general to obtain relevant records from a state agency in order
to expedite an investigation. Third, it would clarify terms, as
suggested by the Alaska Court System administrator by changing
the language "civil penalty" to "fine" on page 3, line 14, which
will more accurately describe a penalty imposed by the court.
Typically, a fine is considered a sum of money imposed by the
court whereas a penalty may not involve a court's proceeding.
Fourth, the amendment explains exactly how the attorney general
would have the ability to investigate and provide a robust and
timely process to ensure compliance by giving the Division of
Elections and the Attorney General the tools to identify and
prevent violations of election law before those violations could
affect the outcome of an election. The proposed language
provides more detail on how the attorney general's office would
investigate and ensure compliance with an investigation. It
would provide more balance by giving the attorney general the
right to subpoena and it would give the recipient the right to
challenge.
SENATOR HUGHES stated that she worked with the Department of Law
on this amendment.
1:39:17 PM
At ease
1:39:36 PM
CHAIR HOLLAND reconvened the meeting.
1:39:50 PM
MS. MILLS said the Department of Law supports Amendment 5. It
will provide some clarity by adding language that complaints can
be made within 60 days from the certification of an election. It
would provide a more robust subpoena process, which can be done
on an expedited basis in cases that the department believes it
is necessary to do so. She said she received comments from the
Alaska Court System to help ensure that the language will fit
with how the court actually imposes fines.
1:41:06 PM
NANCY MEADE, General Counsel, Administrative Offices, Alaska
Court System, Anchorage, Alaska, via Teams, stated that
Amendment 5 is acceptable policy for the legislature, she said.
However, it would require out several unusual procedures. She
referred to subsection (e) on page 2, lines 24 to 28, related to
the Department of Law's investigatory power and their issuance
of subpoenas or interrogatories. The language on line 22 would
authorize the attorney general to file an ex parte petition to
have the court require a shorter timeframe for the respondent to
provide a response. The judge would need to find probable cause
that a violation of the election fraud provision has been
committed or is being committed. She characterized it as similar
to a civil search warrant. Judges do this with respect to
crimes, to determine if there is probable cause that something
untoward has happened. Since this is a civil and not a criminal
matter, it provides for an unusual procedure. However, she said
she believes that the court is equipped to comply.
MS. MEADE referred to subsection (f), which also provides a
process different from the usual one the court system uses. When
the respondent receives a subpoena from the Department of Law
related to an election investigation, the person can start an
action in superior court to have that subpoena quashed. She
characterized this as quite unusual. The court system would need
to develop forms or procedures to allow a civil action that
begins an action to quash a subpoena. Subpoenas and
interrogatories in every other instance in the law are issued
during an ongoing action, so a civil case already exists.
MS. MEADE referred to page 3, lines 3 and 4, which states, "An
action brought under this subsection shall be considered on an
expedited basis." She remarked that this is a very unusual
requirement. Usually, a person would file a petition along with
a motion to have it considered on an expedited basis. It is not
common to place this language in statute since the court would
need to drop everything to comply. However, if the legislature
adopts this as policy, the court system would do so.
1:44:53 PM
MS. MEADE referred to page 3, line 5, which allows the court to
hear evidence and arguments from the attorney general in an ex
parte setting, which means the other party in an action is not
present and cannot provide any evidence. She explained that ex
parte proceedings are disfavored in the law because they do not
provide due process. However, if the legislature adds subpoena
actions for consideration in an ex parte setting, the court can
and will abide.
1:46:24 PM
SENATOR HUGHES asked the Department of Law to respond. She
pointed out that Amendment 5 relates to an investigative process
that is authorized to gather evidence but it does not pertain to
a hearing where decisions will be made.
1:47:32 PM
MS. MILLS agreed that the Department of Law would seek ways to
gather evidence to substantiate a complaint that has alleged
violation that has occurred. She understood the court system's
points, that this is something the court system rarely sees.
However, the election context has strict deadlines that the
Division of Elections must meet so the department would need to
move quickly. She was unsure whether the expedited procedures
would be needed each time but it would provide an important
option to assure that the investigation moves forward. She
referred to the ex parte settings on lines 4 to 5, which states
that the court may hear evidence. The department is not
requiring evidence be heard or to receive arguments but would
like to leave that option open since it would be in the midst of
an investigation. There may be evidence to support the
department pursuing a subpoena or to gather more information but
it should not be public at that point. The department would not
want the subject of the complaint or even a third party to be
aware of the complaint. First, the department does not want to
tarnish the reputation of someone prior to completing its
investigation nor does it wish to hinder an investigation. There
may be circumstances in which an ex parte hearing is held to
consider background information. If members have specific
questions on the process someone from the Consumer Protection
Section can respond, she said.
1:50:01 PM
SENATOR KIEHL expressed interest in the ex parte language in SB
82. He stated that he supports most of the language in Amendment
5. He explained that the emphasis on permissive language, such
that it is possible for a judge to agree to hear evidence and
arguments in ex parte settings gives him a modicum of comfort.
1:50:34 PM
CHAIR SENATOR HOLLAND removed his objection.
1:51:31 PM
At ease
1:52:10 PM
CHAIR HOLLAND reconvened the meeting. There being no further
objection, Amendment 5 was adopted.
1:52:25 PM
SENATOR KIEHL made a motion to adopt Amendment 1, [work order
32-GS1645\A.1].
32-GS1645\A.1
Klein
4/15/21
AMENDMENT 1
OFFERED IN THE SENATE BY SENATOR KIEHL
TO: SB 82
Page 1, line 5:
Delete "division"
Insert "attorney general"
Page 1, line 11, through page 2, line 8:
Delete all material and insert:
"(b) If a complaint alleges a violation of
AS 15.13 or a regulation adopted under AS 15.13, the
attorney general shall refer the complaint to the
Alaska Public Offices Commission. If the complaint is
incomplete, the attorney general finds the complaint
frivolous, or the allegations in the complaint, if
true, do not constitute a violation, the attorney
general may request additional information or dismiss
the complaint.
(c) Excluding an alleged violation of a
provision of AS 15.13 or a regulation adopted under
AS 15.13, the attorney general may investigate an
alleged violation of a provision of this title
(1) included in a complaint;
(2) identified by the director; or
(3) identified by the attorney general."
Page 3, line 18:
Delete "director"
Insert "attorney general"
Page 3, line 20:
Delete all material.
Reletter the following subsections accordingly.
CHAIR HOLLAND objected for discussion purposes.
1:52:36 PM
SENATOR KIEHL explained that Amendment 1 would direct any
complaints to the attorney general's office instead of the
Division of Elections. He offered his view that complaints would
primarily relate to legal issues so it makes sense for
investigations to begin at the Department of Law. This could
also avoid the potential appearance of impropriety since some of
the complaints will be filed against the Division of Election's
staff. Thus, it seems a little odd to have the division decide
if the complaint warrants an investigation. He suggested that
the complaint is dismissed, it is best done by the Department of
Law.
SENATOR HUGHES expressed concern about the potential volume of
complaints. She suggested that it might affect the fiscal note.
She further suggested that having a complaint initially filed
with the Division of Elections might result in the complainant
acquiring information that could immediately resolve the matter.
For example, division staff can clarify requirements that may
satisfy the complainant that election laws are being followed.
Currently, SB 82 does not allow a complainant an opportunity to
file a complaint directly with the attorney general.
SENATOR KIEHL offered his view that the volume of complaints
would not change between the Division of Elections and the
Department of Law. He asked the Department of Law to comment.
1:55:15 PM
MS. MILLS responded that she understands that the volume of
complaints would be the same in number. However, the Division of
Elections currently receives a steady flow of complaints whereas
the Department of Law would need to absorb that activity plus
respond to any additional complaints filed with the attorney
general. She envisioned that the division would filter
complaints and the department would only receive complaints that
require investigations. She said she did not think the
department has too strong of a position on this but it would
need to consider the fiscal impact.
1:56:46 PM
SENATOR MYERS said Amendment 1 raises an issue of expertise. The
Department of Law requested two new positions to handle some of
the responsibilities under the bill. He recalled prior
discussions on specialized election law and procedures. He
related his own experience with the Division of Elections during
a recount. He offered his view that the vast majority of
questions can be answered by the division so maintaining that
the division conduct of the initial screening makes sense.
SENATOR HUGHES asked the chair to table Amendment 1 to allow the
attorney general's office to further consider the fiscal impact.
SENATOR SHOWER said he would like more input. He agreed that
Amendment 1 should be tabled.
2:00:32 PM
SENATOR KIEHL suggested the committee roll the amendment to the
bottom and take it up at a subsequent meeting. He said he did
not think parties could appeal decisions that were made by the
Division of Elections to the Department of Law. If a complainant
is unhappy with a decision, the person could resolve the matter
in court, he said.
SENATOR HUGHES related her understanding that if the complainant
is unhappy with the outcome made by the Division of Elections,
the person could file a complaint with the attorney general.
2:01:28 PM
MS. MILLS responded that the department envisioned that someone
could petition the attorney general if the Division of Elections
dismissed a complaint and the party disagreed. Currently, she
did not think it would be necessary to do so since the division
and the Department of Law work closely on these matters but
under a new administration, that relationship might change. The
attorney general is not barred from investigating a complaint
even though the division dismisses it, she said.
2:02:33 PM
SENATOR KIEHL withdrew Amendment 1.
2:02:48 PM
SENATOR KIEHL made a motion to adopt Amendment 2, [work order
32-GS1615\A.7].
32-GS1645\A.7
Klein
4/19/21
AMENDMENT 2
OFFERED IN THE SENATE BY SENATOR KIEHL
TO: SB 82
Page 2, following line 22:
Insert a new subsection to read:
"(e) The attorney general may not continue an
investigation of an alleged violation of a provision
of this title for longer than one year after the
complaint is filed unless the attorney general
requests and receives approval from the superior
court. The superior court may approve a request under
this subsection if the attorney general establishes a
reasonable probability that the person being
investigated has violated a provision of this title."
Reletter the following subsections accordingly.
Page 2, line 23:
Delete "(f)"
Insert "(g)"
Page 3, line 3:
Delete "(e)"
Insert "(f)"
Page 3, line 4:
Delete "(g)"
Insert "(h)"
Page 3, line 10:
Delete "(g)"
Insert "(h)"
Page 4, following line 10:
Insert a new bill section to read:
"* Sec. 2. AS 22.10.020 is amended by adding a new
subsection to read:
(j) The superior court may review and approve
requests to extend an investigation under
AS 15.56.140(e)."
CHAIR HOLLAND objected for discussion purposes.
2:03:00 PM
SENATOR KIEHL explained that Amendment 2 relates to the length
of time to process complaints. The Division of Elections
discussed this when it presented the bill and the committee
subsequently expressed concern about how long some cases might
linger. For example, during elections campaigners might use a
complaint made against a candidate as another means to discredit
the candidate. Amendment 2 states that if the attorney general
wanted to continue an investigation beyond the calendar year,
the attorney general could seek permission in superior court.
Amendment 2 will prevent situations from occurring, where an
investigation becomes an attack ad in the next cycle. A campaign
might use the ongoing complaint to state a candidate has been
under investigation for two years as an attempt to malign the
candidate. He characterized it as a check similar to the one in
Amendment 5 which addressed subpoenas.
SENATOR HUGHES said she understands the concern that candidates
might use this as a tool; it could happen. She expressed concern
that it raises a separation of powers issue, such that the
superior court could direct the attorney general to halt a case.
She offered her belief that the statute of limitations on cases
was typically in the 5 to 6 year range. Amendment 2 would
significantly tighten up that language. She said she could not
recall any other area of law that limits that timeframe. She
offered her view that the types of issues that other candidates
raise is typically related to financial matters and the Alaska
Public Offices Commission (APOC) would have jurisdiction over
those complaints. Other complaints are related to residency,
such as whether a candidate actually lives in the district,
which by law must be resolved within 30 days. Thus, this narrows
the realm of issues left. She pointed out that sometimes
multiple complaints that are similar in nature are filed at
different times by parties. This means the statute of limitation
dates would also need to be staggered.
SENATOR HUGHES suggested the importance of having a clear
statement to indicate that the attorney general will expedite
complaints on candidates and elected officials. This would
provide a solution such that complaints would not bump up
against the next election. This would require the Department of
Law (DOL) to prioritize these cases.
2:07:37 PM
SENATOR SHOWER suggested that the language would not guarantee
that the attorney general will expedite cases since it is
subjective and would likely depend on the specific attorney
general. He asked if Amendment 2 could be amended to require
that the attorney general must prioritize cases, including some
means to measure it.
SENATOR HUGHES suggested language to require that the attorney
general expedite complaints pertaining to candidates and elected
officials in order to complete the investigation prior to the
next election.
2:09:29 PM
SENATOR KIEHL recalled previous discussions with the Department
of Law, the department indicated that some legitimate cases may
last several years. He argued against placing hard deadlines in
the bill that could harm investigations. He offered his view
that that a relatively low threshold of reasonable probability
exists. He suggested if members are concerned that one year is
not enough time, it could be increased to 16 months.
2:11:00 PM
MS. MILLS responded that DOL has looked at the issue. She agreed
with Senator Hughes that candidate qualifications currently
impose a 30-day time limit for determinations to be made by the
division. She said Amendment 2 would apply to complaints not
related to campaign finance, candidate qualifications, or some
other violations not directly related to election law. She
expressed concern that going to court could alert people that an
investigation was underway. As previously discussed, related to
subpoena power, DOL wants to use the ex parte process to present
information to the judge without hindering the investigation.
She said Amendment 2 seeks accountability from DOL during the
midst of an investigation, which is difficult. She suggested
that it might be best to identify and narrow the concerns to the
circumstances that raise concern. She said DOL would likely
support the provision to prioritize complaints but she was
unsure of how to accomplish the notification and accountability
requirements without hindering the investigations.
2:13:47 PM
SENATOR SHOWER requested DOL develop the language to prioritize
complaints and develop accountability requirements.
2:15:02 PM
SENATOR MYERS offered his view that the concern on the
separation of powers issue in Amendment 2 is with the superior
court's oversight. He asked whether any other body could provide
the oversight.
2:15:42 PM
SENATOR KIEHL said he appreciated the question on separation of
powers. He agreed that the checks and balance are important. He
suggested that the Office of Administrative Hearings (OAH) is a
quasi-independent body in the executive branch that could handle
these matters.
2:16:42 PM
MS. MEADE replied that she shares some of the same concerns. She
said Amendment 2 would put the court in the position of
supervising an activity that is wholly within the executive
branch. She said she was not aware of any other area of law
where a superior court judge would make a ruling to tell the
executive branch how to proceed with their investigative work.
She suggested that it might be possible to find a work around.
CHAIR HOLLAND asked for clarification on the request for DOL.
2:18:11 PM
SENATOR SHOWER restated his request. He asked DOL to provide
language to bridge the gap between providing the safety valve
that Senator Kiehl suggests but to set the bar to achieve it
without causing any concerns.
2:18:53 PM
MS. MILLS responded that she would discuss this further with her
team to develop workable language. She suggested that keeping
the process within the executive branch and providing a
confidential process were positive directions.
CHAIR HOLLAND related his understanding on the separation of
powers issue. He asked whether an alternate body could be used
rather than involving the superior court.
2:20:26 PM
SENATOR MYERS asked if the Office of Administrative Hearings
(OAH) could provide oversight due to the separation of powers
issue rather than superior court.
MS. MILLS agreed that one approach could be to use OAH. She
stated that one issue is how to handle multiple complaints and
overlapping investigations.
2:22:26 PM
SENATOR KIEHL related that Amendment 2 does not try to address
every scenario, but there should be enough specificity to mean
something. He stated that DOL would have the discretion to
consolidate complaints but also initiate its own complaints.
2:23:26 PM
SENATOR KIEHL said he appreciated the discussion and DOL's
willingness to work on language. He offered his willingness to
withdraw Amendment 2 and take it up on another occasion.
CHAIR HOLLAND withdrew his objection.
SENATOR KIEHL withdrew Amendment 2.
2:24:22 PM
SENATOR KIEHL made a motion to adopt Amendment 3, [work order
32-GS1615\A.4].
32-GS1645\A.4
Klein
4/15/21
AMENDMENT 3
OFFERED IN THE SENATE BY SENATOR KIEHL
TO: SB 82
Page 2, line 29:
Delete "may"
Insert "shall"
CHAIR HOLLAND objected for discussion purposes.
2:24:32 PM
SENATOR KIEHL explained that Amendment 3 would change the
language "may" to "shall" for the attorney general to notify the
Division of Elections when a case is completed. He emphasized
the importance for an individual to know when a case is
completed and the person is cleared of any wrongdoing. When an
investigation leads to criminal charges or changes in the laws
or regulations, that information is known. However, when the
department investigates a complaint and finds no evidence of any
wrongdoing, DOL must let the division know so the parties know
the outcome.
2:25:52 PM
MS. MILLS responded that the reason the language reads "may" was
because DOL had concern it might be burdensome. She suggested
that if a report could consist of a sentence that states that no
evidence was found or the complaint was not substantiated, that
would not be too burdensome. However, if the language requires
DOL to prepare a lengthy report, it would be burdensome.
2:26:43 PM
SENATOR MYERS asked if the language read "shall" but added the
caveat "unless the complaint has been deemed to be frivolous"
would be acceptable.
MS. MILLS offered her belief that frivolous complaints would be
dismissed by the division.
SENATOR HUGHES said she preferred a written record. She asked
whether the language requiring a report could be clarified to
make it clear that a lengthy report is not required. She
suggested that perhaps the report could be limited to the
conclusion DOL reached but to retain that the department must
provide a written document.
SENATOR SHOWER offered his view that DOL could implement the
report requirement by deciding which information to include in
their report. He asked whether DOL would have the latitude to do
so.
MS. MILLS answered that she generally agreed with the comments.
However, it is amazing what people will sue over. She expressed
concern that if the department provided a one page report, an
argument could be made that it was not a report.
SENATOR SHOWER remarked that most people want the simple
outcome. If the department got sued, it could write a lengthier
report.
CHAIR HOLLAND commented that if someone wants a lawsuit, the
person will likely sue anyway.
2:30:40 PM
SENATOR HUGHES asked if the criteria should be in statute albeit
something simple. She asked if DOL could develop language.
MS. MILLS answered that report infers something bigger. She
suggested changing the language "report" to "notice" so if any
details are needed, they would be included. When DOL files court
actions, the backup would be public. If the goal is to inform
people there is an end, notice would infer something short.
2:32:39 PM
At ease
2:33:29 PM
CHAIR HOLLAND reconvened the meeting.
SENATOR HUGHES asked if the sponsor would be willing to consider
using the language "shall" but to replace "report" with "notice
of findings." She suggested a conceptual amendment to Amendment
3 could be adopted or Amendment 3 could be withdrawn.
2:34:00 PM
SENATOR KIEHL said the department could specify the report or
notice of finding since SB 82 is the administration's bill. He
said Amendment 3 would merely require the department to indicate
when an investigation is completed.
2:34:33 PM
SENATOR HUGHES expressed concern that if Amendment 3 passes
without the clarifying language, it would require the department
to write a report, which could be burdensome. She said she would
like a written report. However, it is possible that the
department may receive a substantial number of complaints and
she does not want to burden the department with the necessity of
writing lengthy reports.
2:35:13 PM
SENATOR KIEHL offered a willingness to define report or replace
report with some other language.
SENATOR HUGHES moved to adopt Conceptual Amendment 1 to
Amendment 3, on page 2, line 30 to delete "report of the
investigation" and insert "notice of findings."
CHAIR HOLLAND objected for discussion purposes.
CHAIR HOLLAND withdrew his objection.
2:36:34 PM
SENATOR HUGHES stated the language would then read:
(f) At the conclusion of an investigation under this
section, the attorney general shall inform the
division of the result of the investigation and may
submit to the division a notice of finding of the
investigation.
There being no further objection, Conceptual Amendment 1 to
Amendment 3 was adopted.
CHAIR HOLLAND noted Amendment 3, as amended, was before the
committee.
CHAIR HOLLAND removed his objection.
There being no further objection, Amendment 3, as amended, was
adopted.
2:37:37 PM
At ease
2:37:44 PM
CHAIR HOLLAND reconvened the meeting.
2:38:09 PM
SENATOR KIEHL made a motion to adopt Conceptual Amendment 4,
[amended work order 32-GS1645\A.9, Version A.9]. He explained
Amendment 4 is a conceptual amendment because he made a
handwritten change to the Legislative Legal Services
amendment by deleting "(d) of" on line 6 to Version A.9 as
shown:
CONCEPTUAL AMENDMENT 4
[DELETED TEXT BRACKETED]
OFFERED IN THE SENATE BY SENATOR KIEHL
TO: SB 82
Page 2, line 23, through page 3, line 5:
Delete all material and insert:
"(e) When the attorney general submits a report
of an investigation to the division, a record of the
investigation and the report are public records
subject to the disclosure requirements and exemptions
under AS 40.25.100 - 40.25.295. Intelligence
information of the attorney general obtained under
[(d) OF] this section is not a public record and is
not subject to disclosure under AS 40.25.100 -
40.25.295.
(f) At the conclusion of an investigation under
this section, the attorney general shall inform the
division of the result of the investigation and shall
submit to the division a report of the investigation.
If the attorney general's investigation determines
that a complaint against a state agency or state
employee is meritorious, the division shall make a
reasonable effort to work with the agency or employee
to take corrective action."
CHAIR HOLLAND objected for discussion purposes.
2:38:35 PM
SENATOR KIEHL explained that once DOL submits the report to the
Division of Elections, Conceptual Amendment 4 would make the
records of the investigation public and the usual Public Records
Act rules would apply. He assured members that personal
information, such as phone numbers, Social Security number and
intelligence information is protected. The handwritten change in
Conceptual Amendment 4 makes certain that intelligence
information will not be released. The baseline information in a
concluded investigation becomes public, he said. He offered his
view that it is in the public interest to do so. He clarified
that the Alaska State Troopers or other law enforcement agencies
will always keep confidential any information related TO an
investigation.
2:40:19 PM
SENATOR HUGHES referred to line 3 and suggested a friendly
Conceptual Amendment 1 to Conceptual Amendment 4 to remove the
language, "report of an investigation" and insert, "notice of
the findings". She explained that a previous Conceptual
Amendment 1 to Amendment 3 changed "report of the investigation"
to "notice of findings." This language would be consistent with
that change.
2:41:02 PM
CHAIR HOLLAND suggested adding "or notice of finding" following
the language "report of an investigation" to cover either case.
2:41:13 PM
SENATOR HUGHES directed attention to line 3 of Conceptual
Amendment 4 to the specific language.
SENATOR KIEHL, after clarifying the statutory cite in Conceptual
Amendment 4, agreed it was needed.
2:41:39 PM
SENATOR HUGHES moved to adopt Conceptual Amendment 1 to
Conceptual Amendment 4 on line 3 to remove the language, "report
of an investigation" and insert, "notice of the findings".
SENATOR KIEHL clarified that the word "report" appears in three
places in Conceptual Amendment 4. He suggested "notice of the
findings" replace "report" in all three places.
SENATOR HUGHES revised Conceptual Amendment 1 to Conceptual
Amendment 4 to replace "report of the investigation" with
"notice of the findings" in all occurrences.
2:42:24 PM
SENATOR SHOWER asked the record to reflect that Legislative
Legal Services can make technical and conforming changes.
2:42:35 PM
CHAIR HOLLAND agreed.
CHAIR HOLLAND objected for discussion purposes. There being no
discussion, he removed his objection.
There being no further objection, Conceptual Amendment 1 to
Conceptual Amendment 4 was adopted.
CHAIR HOLLAND indicated Conceptual Amendment 4, as amended, was
before the committee.
2:43:12 PM
SENATOR HUGHES suggested a friendly amendment, to flip
subsections (e) and (f). She explained that first, it is
necessary to have the information submitted to the Division of
Elections, then the records would become available to the
public. It will not change what happens but the suggestion is an
organizational change.
SENATOR KIEHL said he did not have any objection.
2:44:29 PM
SENATOR HUGHES moved to adopt Conceptual Amendment 2 to
Conceptual Amendment 4, to reverse subsections (e) and (f).
There being no objection, Conceptual Amendment 2 to Conceptual
Amendment 4 was adopted.
CHAIR HOLLAND stated that Conceptual Amendment 4, as amended,
was before the committee.
2:45:02 PM
SENATOR MYERS suggested that some of the changes being made by
previously adopted amendments and conceptual amendments to SB 82
would be deleted by Conceptual Amendment 4. He wanted to
understand the overall effect of the amendments.
CHAIR HOLLAND agreed that Senator Myers had a fair concern.
2:46:06 PM
SENATOR KIEHL said he was not concerned that Conceptual
Amendment 4 will "undo" the changes. He noted that Amendment 4
is conceptual so Legislative Legal Services can make conforming
changes to the bill.
SENATOR HUGHES referred to page 3, line 2 of SB 82. She related
her understanding.
2:47:37 PM
SENATOR KIEHL deferred to staff.
2:47:56 PM
CATHY SCHLINGHYDE, Staff, Senator Jesse Kiehl, Alaska State
Legislature, Juneau, Alaska, on behalf of the sponsor, answered
yes, Conceptual Amendment 4 will delete the language about the
records being confidential and instead that they are subject to
the usual rules of the Public Records Act. She offered her view
that Conceptual Amendment 1 erased the contradiction with the
work done in Amendment 3 so they should work in concert with
each other.
2:48:31 PM
CHAIR HOLLAND withdrew his objection.
2:48:41 PM
SENATOR MYERS asked if the Department of Law could comment on
Conceptual Amendment 4, as amended.
2:49:00 PM
MS. MILLS stated that she now understands Conceptual Amendment
4. She clarified that DOL has historically considered
intelligence information in consumer protection matters as the
information that is gathered in the course of an investigation.
The record of the investigation is a fairly narrow category.
Under the Consumer Protection Act, which is where this language
was derived, intelligence information and the record of
investigation are confidential and not subject to the Public
Records Act. She advised the committee that the record of the
investigation is very narrow as compared to the intelligence
information, which is anything collected that may end up leading
to a violation or any matters referred to law enforcement.
2:50:34 PM
SENATOR HUGHES referred to page 3, line 2. She asked if removing
the rest of the information in that paragraph was fine because
that information is already confidential and a public records
request would not include any of it.
MS. MILLS stated her preference to treat it like consumer
protection information and not make the distinction between
intelligence information and the record of investigation. All of
it is protected, she said. The way she reads Conceptual
Amendment 4 is that there would be two buckets. The record of
the investigation would be treated under the normal Public
Records Act process. DOL would conduct a review, determine what
was privileged and what was not, and what fell under the various
exceptions. The intelligence information, which is information
gathered during the investigation, including working with law
enforcement, would not be subject to the Public Records Act. DOL
would not conduct the same review for those documents.
2:52:16 PM
SENATOR HUGHES referred to page 3, line 2. She asked if starting
with the word "intelligence" and replacing the remaining
language would accomplish her goal.
MS. MILLS said the department would prefer Senator Kiehl's
Conceptual Amendment 4 because it better identifies it as not
being a public record. That makes it easier for DOL rather than
saying it is not confidential because it raises questions. She
stated that DOL considered stating it is not subject to the
Public Records Act. She said that this language makes it really
clear what lines are being drawn. She maintained that the
language in Conceptual Amendment 4 was more appropriate.
2:53:29 PM
There being no further objection, Conceptual Amendment 4, as
amended, was adopted.
[SB 82 was held in committee.]
SJR 4-CONST. AM: ABORTION/FUNDING
2:53:56 PM
CHAIR HOLLAND reconvened the meeting and announced the
consideration of SENATE JOINT RESOLUTION NO. 4, Proposing an
amendment to the Constitution of the State of Alaska relating to
abortion.
[This was the second hearing on SJR 4. Public testimony was
opened and closed on 4/16/21.]
2:54:15 PM
SENATOR HUGHES stated that SJR 4 uses the language "may". She
related her understanding that the Manual of Legislative
Drafting states when using the negative, such as stating that
the person cannot do something, the language "may not" is used
rather than the language "shall not". In this case, the language
"may not" is the same as "cannot." However, some other states
have used the language "shall" including Louisiana, but Alabama
uses "may not." Tennessee uses the language, "Nothing in this
constitution secures or protects ?. She asked the record to
reflect that "may not" is the same as "cannot." She asked Mr.
Dunmire to address the issue.
2:56:20 PM
ANDREW DUNMIRE, Attorney, Legislative Legal Services,
Legislative Affairs Agency, Juneau, Alaska, referred to page 65
of the Manual of Legislative Drafting, which instructs using
"shall" to impose a duty upon someone. It further instructs
using "may not" to impose a prohibition upon someone. The Alaska
Constitution is not as consistent as bills currently being
drafted. For example, Art. 1, Sec. 20 reads, "No member of the
armed forces shall in time of peace be quartered in any house
?." More recent provisions do conform to the current drafting
style. For example, Art. 1, Sec. 25 reads, "To be valid or
recognized in this State, a marriage may exist only between one
man and one woman." The current style is to use "may not" to
express a prohibition whereas to use "shall" to instruct someone
or an agency has a duty to perform an act.
2:57:42 PM
SENATOR HUGHES said she wanted the record to be clear that the
meaning of the language "may not" is the same as "cannot" and it
does not provide for any other interpretation.
2:58:32 PM
At ease
2:58:54 PM
SENATOR HOLLAND reconvened the meeting.
2:59:04 PM
SENATOR SHOWER moved to report SJR 4, work order 32-LS0246\A
from committee with individual recommendations and attached
fiscal note(s).
2:59:15 PM
SENATOR KIEHL objected. He said his objection goes directly to
the heart of the proposed constitutional amendment to remove
some of Alaskan women's rights. In fact, he could not think of
any situation in which he could support placing such
restrictions in the Alaska Constitution. The committee has
debated and discussed SJR 4 and it has heard presentations from
those who have tried to frame this as asserting the
legislature's right to lawmaking. However, the simple fact is
that the courts have exercised their duties and obligations
under the Alaska Constitution. The Alaska Supreme Court has
prevented the legislature from violating these constitutional
rights by overturning restrictions on abortion that the
legislature tried to enact. He stated that the Alaska
Constitution provides women the right to decide when or whether
to become a parent. This applies to all women, whether they are
young or poor. Women have the right to privacy under the Alaska
Constitution, which is more explicit about these rights than the
US Constitution. The courts have found that the government may
not violate women's rights to privacy. The Alaska Constitution
also grants women equality. The only way that the government can
come between a woman and her doctor and her religious leader, if
she has one, and her decision when or whether to become a parent
is to remove some of her rights. Ultimately, that is the effect
of SJR 4, he said.
3:01:37 PM
SENATOR HUGHES reminded members that little baby girls who will
become future women have rights while in utero. She said the
baby is not a growth or a tumor but is an actual baby. Although
SJR 4 does not set any policy, it will help the state move
forward to determine the policies. She offered her belief that
taking the life of a baby via abortion is murder because it is
taking the life of another human. She offered her view that it
is time for Alaskans to establish policy that reflects the
values of Alaskans.
SENATOR KIEHL maintained his objection.
3:02:53 PM
A roll call vote was taken. Senators Shower, Hughes, Myers, and
Holland voted in favor of reporting SJR 4 from committee and
Senator Kiehl voted against it. Therefore, the CSSJR 4(JUD) was
reported from the Senate Judiciary Standing Committee by a vote
of 4:1.
3:03:37 PM
There being no further business to come before the committee,
Chair Holland adjourned the Senate Judiciary Standing Committee
meeting at 3:03 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 82 Amendment Packet (SJUD).pdf |
SJUD 4/23/2021 1:30:00 PM |
SB 82 |