Legislature(1997 - 1998)
03/18/1998 01:35 PM Senate JUD
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
SENATE JUDICIARY COMMITTEE
March 18, 1998
1:35 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chairman
Senator Sean Parnell
Senator Johnny Ellis
MEMBERS ABSENT
Senator Drue Pearce, Vice-Chairman
Senator Mike Miller
COMMITTEE CALENDAR
SENATE BILL NO. 313
"An Act relating to sponsor certification of initiative petitions;
relating to sponsor identification during petition circulation;
relating to the voidability of an initiated law; placing
limitations on the compensation that may be paid to sponsors of
initiative petitions; prohibiting payments to persons who sign or
refrain from signing initiative petitions; and repealing procedures
for filing a supplementary initiative petition."
- MOVED SB 313 OUT OF COMMITTEE
SENATE BILL NO. 309
"An Act relating to the use of force by peace officers and
correctional officers."
- SB 309 MOVED OUT OF COMMITTEE
SENATE JOINT RESOLUTION NO. 36
Proposing amendments to the Constitution of the State of Alaska
relating to redistricting of the legislature, and repealing as
obsolete language in the article setting out the apportionment
schedule used to elect the members of the first state legislature.
- HEARD AND HELD
PREVIOUS SENATE COMMITTEE ACTION
SB 313 - No previous action to record.
SB 309 - See State Affairs minutes dated 2/26/98 and 3/3/98.
SJR 36 - See Judiciary minutes dated 3/11/98.
WITNESS REGISTER
Senator Jerry Ward
State Capitol
Juneau, Ak 99801-1182
POSITION STATEMENT: Sponsor of SB 309
Mr. Craig Johnson
Staff to Senator Jerry Ward
State Capitol
Juneau, Ak 99801-1182
POSITION STATEMENT: Commented on SB 309
Senator Bert Sharp
State Capitol
Juneau, Ak 99801-1182
POSITION STATEMENT: Sponsor of SB 313
Mr. Ralph Bennett
Staff to Senator Robin Taylor
State Capitol
Juneau, Ak 99801-1182
POSITION STATEMENT: Commented on SJR 36
Mr. Jim Baldwin
Department of Law
PO Box 110300
Juneau, Ak 99811-0300
POSITION STATEMENT: Commented on SJR 36
ACTION NARRATIVE
TAPE 98-18, SIDE A
Number 001
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to
order at 1:40 and called up SB 309 as the first order of business.
SB 309 - USE OF NONLETHAL AND DEFENSIVE WEAPONS
SENATOR JERRY WARD came forward to present his bill and said the
legislation was inspired by his son-in-law, who serves on the
Anchorage SWAT team and uses a type of non-lethal bean bag
projectile, which is a useful tool in certain situations. SENATOR
WARD allowed that there is an element of danger in using these
projectiles and cited a case where a suicidal woman had her arm
broken accidentally by one of these projectiles.
SENATOR WARD said the bill takes away the fear of prosecution in
cases where specially trained and certified officers use this type
of force in an appropriate situation. He said those people who use
this mechanism to protect the public should be protected
themselves.
SENATOR WARD said that in our litigious time, this kind of
protection is necessary to allow properly trained officers to use
this weapon without fear of reprisal. He again mentioned that the
bill was brought to his attention by his son-in-law, and noted the
zero fiscal note that accompanies the bill.
SENATOR PARNELL asked if a recently enacted bill that provided a
broad scope of immunity for police officers covered this issue.
SENATOR WARD replied that this issue was overlooked in that bill.
He mentioned a case in the Lower 48 where the use of non-lethal
weapons caused an accidental death.
SENATOR PARNELL asked where immunity for peace officers is in
existing law and SENATOR WARD responded he was not sure. SENATOR
PARNELL asked if the proper use of non-lethal weapons, employed in
the scope of an officer's duty, was covered under this immunity.
SENATOR WARD replied that these weapons are currently considered
the equivalent of a shotgun, and this bill just allows the use of
these types of non-lethal weapons, instead of a shotgun.
Number 108
MR. CRAIG JOHNSON, staff to SENATOR WARD, interjected that
currently, any projectile fired from a weapon capable of lethal
force is considered lethal force. He clarified that now these non-
lethal projectiles are treated the same as traditional projectiles
and this bill would put them in a separate class.
SENATOR PARNELL asked if the current statute immunized use of
lethal force and MR. JOHNSON said it does not. SENATOR WARD said
this does not reduce any personal liability for negligent acts,
only classifies non-lethal projectiles differently. SENATOR PARNELL
voiced no problem with the concept, but only wanted to be sure they
weren't repeating something that has already been done.
SENATOR ELLIS asked about the phrase "unlikely accidents" in the
sponsor's statement and asked for clarification. SENATOR WARD
replied he was referring to a case like that previously discussed
which resulted in a broken bone. SENATOR ELLIS asked if the bill
seeks to grant criminal and civil immunity for officers and SENATOR
WARD replied that no one can totally escape civil liability but the
bill seeks to hold officers harmless in cases where they have used
this force appropriately.
SENATOR ELLIS asked if the woman in the example has filed suit
against anyone and SENATOR WARD replied no, she is in Anchorage
Psychiatric Institute, where she is getting help.
SENATOR ELLIS attempted to clarify SENATOR WARD's intention with
the bill; asking if he is attempting to prevent charges being
brought against an officer for criminal wrongdoing, or if he is
attempting to prevent a civil suit by a person like the woman with
the broken bone. SENATOR WARD replied he thinks he is trying to
accomplish both objectives, and restated that these non-lethal
projectiles are a useful tool in some situations and he would not
want officers to hesitate to employ them. SENATOR ELLIS asked if
staff could point out which part of the bill applied to criminal
liability and which part related to civil liability. MR. JOHNSON
replied that, essentially, the bill only reclassifies the bean bag
bullet itself as non-lethal. He explained in the example that was
used, lethal force was not an option but, technically, that's what
was used as there is no separate classification for these non-
lethal rounds. He said he does not believe the bill would prevent
civil or criminal penalties. SENATOR WARD interjected that it is a
classification of the type of bullet, something that was unfamiliar
to him until recently. He said it is a tool that can save lies.
SENATOR ELLIS clarified that the bill allows a reclassification of
a type of ammunition, commenting he had been confused by the
reference to a litigious society. SENATOR WARD said he had just
taken the example one step further and SENATOR ELLIS questoned if,
in the example, the woman would still have the right to sue and
SENATOR WARD replied she would.
SENATOR PARNELL remarked that SENATOR ELLIS has raised some good
points and that the classification of the rounds as non-lethal
would have civil implications and would help in the defense of an
officer who used this force. He stated the bill would not immunize
from liability, but would aid a defense in a civil action.
Number 253
SENATOR ELLIS commented that the definition of non-lethal refers to
things commonly used now, but does not cover the techniques that
may soon be developed in this rapidly changing high-tech field. He
suggested that a more expansive definition may help to keep the
bill from rapidly becoming out of date. SENATOR WARD agreed, and
said they had used current techniques for the definition.
SENATOR ELLIS inquired if SENATOR WARD was familiar with the level
at which an order to shoot might be given, asking who has the
ultimate responsibility. SENATOR WARD replied that it was whoever
pulls the trigger, saying an illegal order shall not be followed.
SENATOR WARD continued that there was a chain of command and an
officer in charge of a team might give that type of order, but
would also have the authority to do it themselves. CHAIRMAN TAYLOR
interjected that, from a tort perspective, the officer who
authorized the shot (provided it was done appropriately, following
established procedures) would be included in the scope of the
liability, along with the entire police department and city, etc.
CHAIRMAN TAYLOR concluded that under the doctrine of respondeat
superior, if the officer was acting within the scope of his or her
duties, they would be personally indemnified and the city or the
governing authority would be liable for any judgement. However, if
the officer was ordered not to shoot, and did so anyway, he or she
would be personally responsible and the governing authority would
likely be absolved from any judgement.
SENATOR WARD said the officers who approached him are under the
impression that they are personally responsible in these
situations, regardless of their orders.
SENATOR PARNELL asked if there was further public testimony on the
bill. CHAIRMAN TAYLOR, seeing none, accepted a motion from SENATOR
PARNELL to move the bill from committee with individual
recommendations, and without objection, it was so ordered.
SB 313 - PETITION CIRCULATION
SENATOR BERT SHARP came forward to present SB 313, his bill
relating to petition circulation. SENATOR SHARP stated that it is
often assumed that people canvassing for signatures on an
initiative petition are volunteers. SENATOR SHARP said this is
often true, but it is more likely that these people are signature
"bounty hunters," paid by the sponsor of the initiative. SENATOR
SHARP noted that all other states have laws against this and said
his bill, in an effort to bring the initiative process back to a
more grassroots level, requires petition circulators to display
identification (their name and voter registration number) during
signature solicitation. SB 313 also prohibits payment per signature
by the sponsor. Payment for canvassers would still be allowed by
any other method. SENATOR SHARP said the bill further prohibits
payment for a signature on a petition, which is not currently
illegal and eliminates the 30-day extension period currently
allowed. SENATOR SHARP summed it up by saying, "you either got 'em
or you don't."
Number 400
SENATOR ELLIS asked about an Anchorage Daily News article that
encouraged the Legislature to increase initiative campaign
reporting requirements, which currently do not require disclosure
of funds unless they are rolled forward into an effort to actually
pass the initiative once it appears on the ballot. He asked SENATOR
SHARP if he had given any thought to including that in this bill
and SENATOR SHARP replied he had not.
SENATOR SHARP said he was reticent to force additional reporting on
anyone, but did not wish to say he would not embrace it. He
commented that funding sources can be oblique.
SENATOR ELLIS asked for more detailed comments on the elimination
of the 30 day extension period and its possible implications on the
right of people to petition in a democratic government. SENATOR
SHARP replied that, with more and more initiatives, the Legislature
is given less and less time to react with legislation to the
initiatives. SENATOR SHARP said the time frame for collecting the
necessary signatures is quite liberal and any extension of that
time focuses on the time limit itself, and not on the merits of the
initiative. SENATOR ELLIS asked if this concern couldn't be better
addressed by some sort of deadline that required the petition
process to end by a certain date. SENATOR SHARP responded by saying
this would be difficult for the Division of Elections and restated
his point that the time for gathering the necessary signatures for
a successful petition is ample, and the extension merely begs for
a last minute infusion of money into a campaign. He said there must
be a cut off at which point it is determined if "you got 'em or you
don't."
SENATOR ELLIS asked what the public policy reason for this concern
was and SENATOR SHARP replied that there is plenty of time to get
the signatures, if the effort or the interest of the people is
lacking, so be it. He thinks it goes against public policy in the
initiative process to allow the refocusing of monetary resources
after the initial effort.
SENATOR ELLIS remarked that the reason why people fall short of the
required number of signatures is that people misrepresent
themselves as registered voters and are later disqualified by the
Division of Elections. SENATOR ELLIS said he has no sympathy for
the signature bounty hunters, but commented that signature
gatherers have no good way to verify if a person is indeed a
registered voter. He said the extension has always been a failsafe
method to ensure that all the time and effort was not wasted due to
disqualification of those people who misrepresented themselves.
SENATOR PARNELL noted that another section of the bill is related
to this. He pointed out that on page 2 a new section is being added
that places more of the burden on the petition sponsors to ensure
those signatures they turn in come from legitimate, registered
voters. SENATOR PARNELL said this verification can be done through
public and private databases, thus reducing the burden on the
Division of Elections. SENATOR ELLIS asked if this wouldn't just
encourage canvassers to come into the Division of Elections and
check signatures every week or so. He asked if they would have the
right to do this, suggesting that not everyone has computers and
database access. SENATOR PARNELL said this would still result in
much less work for the Division of Elections at the end of the
process.
SENATOR ELLIS asked, since the intent of the bill was to identify
the group collecting signatures, if the bill includes anything
prohibiting "petition groups." SENATOR SHARP replied that there was
no restriction being proposed that requires any additional
identification other than what is currently required by the
Division of Elections. SENATOR ELLIS replied he thought the bill
increased reporting requirements. SENATOR SHARP said only on the
person actually collecting the signatures. He also said, even
though under current law signature gatherers must be registered
voters, he has had calls complaining about canvassers who refuse to
identify themselves when asked.
SENATOR ELLIS clarified that the name tag would contain the
canvasser's name and voter number, not the organization they
represent. SENATOR SHARP agreed.
SENATOR ELLIS asked if it is currently illegal to use canvassers
shipped into the state and SENATOR SHARP said canvassers must be
registered voters, requiring a 30 day residency.
CHAIRMAN TAYLOR asked if there was further testimony on the bill,
there was none.
SENATOR PARNELL moved SB 313 out of committee with individual
recommendations. Without objection, it was so ordered.
SJR 36 - REAPPORTIONMENT BOARD & REDISTRICTING
CHAIRMAN TAYLOR indicated to the committee that they had a copy of
a new committee substitute on their desks that brought the draft
into line with the version in the House finance committee. It
establishes a five-member redistricting board appointed by the
Chief Justice of the Supreme Court, with one member from each
judicial district. He said due to the controversy surrounding
redistricting, a "Christ-like" figure has to be found to appease
people. He said it is always difficult to find these people. He
noted that the work draft was marked "GLOVER/B" version.
SENATOR PARNELL moved the adoption of the GLOVER/B version, dated
3/12/98, as the working vehicle for the committee. Without
objection, it was so ordered.
MR. JIM BALDWIN, representing the Department of Law, came forward
and noted that he had previously testified on the bill, but spoke
to a different version and would like to make a few additional
comments. CHAIRMAN TAYLOR indicated he should do so.
MR. BALDWIN said the bill is similar to HJR 44, with the exception
of one provision that he believes was excluded due to his testimony
in the House. MR. BALDWIN pointed out a few problematic provisions
still existing in the bill. Page three, lines 2-3 state, "the Chief
Justice shall appoint a redistricting board, subject to the
provisions of this section and as may be provided by law"; MR.
BALDWIN said this would impose additional criteria for the
appointment of redistricting board members. He mentioned that the
House attempted to come up with an unassailable process which did
not involve the Governor. He commented this provision might allow
partisan politics to creep back into the process, if criteria
specified included political parties or other similar
considerations.
MR. BALDWIN remarked that the Attorney General has traditionally
provided legal counsel for the reapportionment board, and he
assumes if the board was moved to another branch that the court
system would provide for that. He mentioned the department has
provided a fiscal note to the House version of the bill and they
feel it may be an involved process to preclear the change. They
anticipate that some interest may come forward to challenge
preclearance, so the fiscal note takes into account the possibility
of consulting experts to help assemble the preclearance
application. He indicated the fiscal note on the House side was
approximately $60,000.
MR. BALDWIN pointed out that a provision beginning on page three,
dealing with the schedule of the board, would effectively reduce
the time line by 60 days. Currently, the board has 90 days to
formulate a plan and then transmit the plan to the Governor, the
Governor then has 90 days to review the plan and present a final
plan, and MR. BALDWIN indicated all of this time is necessary to
accommodate public comment and make adjustments.
MR. BALDWIN concluded by saying he had no further comments, other
than those he had made during his previous testimony.
CHAIRMAN TAYLOR asked who the fifth member would be since Alaska
only has four judicial districts. MR. BALDWIN replied the fifth
member would be decided by the four appointed members.
CHAIRMAN TAYLOR asked if there was a challenge that could be made
to this bill under the "one man, one vote" rule, since it
apportions the board that will reapportion the state based on
judicial districts and might diminish the influence of major
population centers in comparison to rural areas.
TAPE 98-18, SIDE B
Number 001
MR. BALDWIN said he had not considered that, but believed that
since the current practice in the Constitution is obsolete (relying
on geography rather than population), apportionment is not required
to adhere to the letter of the Constitution, only to attempt to
obtain some geographic balance and distribution. He said this is an
interesting issue, one he hadn't considered. MR. BALDWIN noted that
the board itself has not been apportioned in the past and CHAIRMAN
TAYLOR agreed he'd never seen it done either.
MR. RALPH BENNETT said that if there was a provision missing from
the bill he was not aware of it. MR. BALDWIN restated that he
believes the provision was purposefully deleted.
SENATOR PARNELL made a motion to move CSSJR 36 from committee with
individual recommendations. SENATOR ELLIS objected and CHAIRMAN
TAYLOR indicated the bill would be held in committee.
With no further business to come before the committee, they were
adjourned at 2:25 p.m.
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