Legislature(2001 - 2002)
03/25/2002 01:40 PM Senate JUD
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
SENATE JUDICIARY COMMITTEE
March 25, 2002
1:40 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chair
Senator John Cowdery
Senator Gene Therriault
MEMBERS ABSENT
Senator Dave Donley, Vice Chair
Senator Johnny Ellis
COMMITTEE CALENDAR
CS FOR SENATE BILL NO. 324(L&C)
"An Act providing that a utility or electric operating entity
owned and operated by a political subdivision of the state
competing directly with a telecommunications utility is not
subject to the Alaska Public Utilities Regulatory Act."
MOVED CSSB 324(L&C) OUT OF COMMITTEE
SENATE JOINT RESOLUTION NO. 33
Proposing an amendment to the Constitution of the State of Alaska
relating to limiting the rate of state income and sales and use
taxes.
MOVED CSSJR 33(JUD) OUT OF COMMITTEE
CS FOR HOUSE BILL NO. 196(JUD)
"An Act establishing a right of action for a legal separation;
requiring a report about legal separations; and amending Rule
42(a), Alaska Rules of Civil Procedure."
MOVED CSHB 196(JUD) OUT OF COMMITTEE
SENATE BILL NO. 344
"An Act relating to an aggravating factor at sentencing for
terrorism."
MOVED SB 344 OUT OF COMMITTEE
CS FOR HOUSE BILL NO. 297(JUD)
"An Act related to aggravating factors at sentencing."
MOVED SCS CSHB 197(JUD) OUT OF COMMITTEE
PREVIOUS SENATE COMMITTEE ACTION
SB 324 - See Labor and Commerce minutes dated 3/5/02 and
Judiciary minutes dated 3/20/02.
SJR 33 - See Judiciary minutes dated 3/18/02.
HB 196 - No previous action to record.
SB 344 - No previous action to record.
HB 297 - No previous action to record.
WITNESS REGISTER
Senator Alan Austerman
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Sponsor of SJR 33
Mr. Larry Persily
Department of Revenue
PO Box 110400
Juneau, AK 99811-0400
POSITION STATEMENT: Answered questions pertaining to SJR 33
Representative Fred Dyson
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Sponsor of HB 196
Mr. Dave Golter
PO Box E. Mayflower Lane, Suite 4
Wasilla, AK
POSITION STATEMENT: Supports HB 196
Ms. Jennifer Rudinger
Alaska Civil Liberties Union
No address provided
POSITION STATEMENT: Opposed SB 344
Representative Kevin Meyer
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Sponsor of HB 297
ACTION NARRATIVE
TAPE 02-11, SIDE A
Number 001
CHAIRMAN ROBIN TAYLOR called the Senate Judiciary Committee
meeting to order at 1:40 p.m. Senators Therriault, Cowdery and
Chair Taylor were present.
SB 324-MUNICIPAL PUB.UTIL.COMPETING W/TELECOM
CHAIRMAN TAYLOR announced that he would bring up SB 324 under
Bills Previously Heard. The committee heard and held that bill at
a previous meeting because he was not present. He noted SB 324 is
a simple matter and he would like to move it out. It provides one
community, Ketchikan, from RCA regulatory involvement if a
competing private utility, which is not regulated under state
law, were to enter the field.
SENATOR COWDERY moved SB 324 from committee with individual
recommendations.
SENATOR THERRIAULT objected to ask if SB 324 will still require
regulation by a local utility board.
CHAIRMAN TAYLOR said it would and, in fact, the local board is
appointed by the city council but the city council sits as a
supervisory board over the utility board.
SENATOR COWDERY said this situation is similar to the ATU
situation in Anchorage.
CHAIRMAN TAYLOR said that is correct. He then announced that with
no further objection to moving SB 324 from committee with its
zero fiscal note, the motion carried.
SJR 33-CONSTITUTIONAL AMENDMENT: TAX CAP
CHAIRMAN TAYLOR noted the committee received a letter from the
Commissioner of the Department of Revenue (DOR) that answers some
of the questions asked at the last meeting. He stated that he
prepared a sponsor substitute (SS) for SJR 33. The drafter had
sent along with it a resolution that provides for a title change.
He questioned why another resolution is necessary since SJR 33 is
a Senate resolution and, in addition, he has not seen any title
change in the sponsor substitute.
SENATOR AUSTERMAN also expressed confusion as to why a second
resolution accompanied SJR 33 and noted that he is not aware of
any title change.
CHAIRMAN TAYLOR and SENATOR AUSTERMAN then clarified the new
version is a committee substitute, not a sponsor substitute.
Senator Austerman prepared a sponsor substitute, but Chairman
Taylor changed it to a committee substitute so that the
resolution would not have to be re-read on the Senate floor.
SENATOR COWDERY asked if an accompanying resolution for a title
change would be required if the original resolution came from the
House.
CHAIRMAN TAYLOR said it would. He then said SJR 33 was introduced
on February 4, 2002 and was referred to the Senate Judiciary and
Finance Committees. He asked Senator Austerman if SJR 33 received
an additional referral.
SENATOR AUSTERMAN said it did not and noted that he submitted a
sponsor substitute to the Senate Judiciary Committee in error.
CHAIRMAN TAYLOR clarified that the version before members is not
a committee substitute for a sponsor substitute, it is a
committee substitute to the original resolution.
SENATOR COWDERY moved to adopt the proposed committee substitute,
Version F, as the work draft before the committee.
CHAIRMAN TAYLOR announced that without objection, Version F was
before the committee. He then moved to delete from the bill
heading the words "FOR SS" so that the title of the bill reads:
CS FOR SENATE JOINT RESOLUTION NO.33(JUD)
There being no objection, the motion carried.
SENATOR AUSTERMAN informed members that the only change in the CS
is that the word "retail" was added on page 1, line 12 before the
words "sales tax."
CHAIRMAN TAYLOR noted that change was made to clarify that the
provision does not apply to wholesale sales. He pointed out that
Mr. Persily answered the committee's questions about what
adjusted gross income means, about what the percentage would be
and the amount that percentage would generate. He expressed
concern that the limiting factor of five percent of the federal
adjusted gross income is hardly a limit. That amount would
probably generate about $550 to $600 million.
MR. LARRY PERSILY, Deputy Commissioner, Department of Revenue,
explained that Chairman Taylor's estimate is correct and that
amount would go a long way in solving Alaska's fiscal problems.
SENATOR COWDERY noted that Mr. Persily defined "federal taxable
income" as income remaining after itemizing deductions. He asked
if earnings from another state would be considered an itemized
deduction. He said that if an individual had income derived from
another state with an income tax, the individual might be able to
deduct them, but if the income was derived in a state without an
income tax, those wages would have to be included in the federal
return.
MR. PERSILY clarified that federal taxable income would include
income from all sources. If Alaska had an income tax and part of
one's income was earned in Washington, which has no personal
income tax, Alaska could impose an income tax on all of the
income earned in Washington state because that individual's
domicile is in Alaska. If Washington had an income tax and one-
third of the individual's earnings were from Washington, Alaska
could tax two-thirds. He stated an individual would never pay
taxes to two states on the same income.
SENATOR COWDERY pointed out Alaska would draw in the income
derived from other states with no income tax.
MR. PERSILY said the state could benefit by taxing the earnings
of its residents where those earnings are earned in states
without a personal income tax.
SENATOR AUSTERMAN said that works both ways as Oregon residents
who earn their wages in Alaska are taxed by Oregon.
SENATOR COWDERY said that is the point he has a problem with. He
said he believes an Alaska income tax should be based on Alaska
income.
SENATOR THERRIAULT referred to the limit of 5 percent and
questioned whether Alaskans would see it as a cap since it is at
the upper limit. He asked Senator Austerman if he feels strongly
about the five percent.
SENATOR AUSTERMAN said his only thought is if the legislature
asks the public to vote on a constitutional amendment, it should
allow the public the latitude of future growth. He said if it
reads two or three percent, a future legislature will probably
have to go back to the public for another vote. He noted that he
anticipates that Alaska will have a broad based tax structure in
the not-too-distant future but he does not believe it will be
just an income tax and sales tax. He also anticipates the
permanent fund will be part of the solution so he does not
believe the five percent cap will be reached for a very long
time. He maintained that is a policy call the legislature will
have to make.
CHAIRMAN TAYLOR said the overall policy call reaches far beyond
the numbers. His concern is that today, under Alaska's
Constitution, people are not afforded an opportunity to vote on
the budget or to vote on the level of taxation that the
legislature chooses to impose. He thought it would be a good idea
to have a cap or limit on taxation, but expressed concern that
placing a cap in the Constitution creates a significant policy
shift. The Constitution was originally designed so that questions
of revenue would be left up to the legislature and that
initiative petitions could not be brought to amend the
Constitution. In addition, one of the things the framers truly
isolated at the state and municipal levels is that the public
does not have a vote on that. By putting any number in the
Constitution, that number can only be changed by a public vote.
He said he believes that is a major shift within the framework of
Alaska's Constitution.
SENATOR COWDERY noted the title does not say that an income and
sales tax will be implemented, it only says if the legislature
decides to impose one, it must be limited to five percent so it
is moot until a tax is in place.
SENATOR AUSTERMAN said that is correct and stated, "The whole
issue, and I believe the courts have upheld also, like you
indicated, the initiative process, they cannot set the budget by
initiative process but this is not necessarily setting a rate,
but it's setting the maximum at this point in time that the
public would feel comfortable with."
CHAIRMAN TAYLOR asked Senator Therriault his thoughts on three
percent, which would generate almost $400 million.
SENATOR THERRIAULT said he prefers 2.5 percent. He then moved to
replace the word "five" on page 1, line 10 with "2.5."
CHAIRMAN TAYLOR asked Senator Therriault if it is his intent to
make the same change on lines 7 and 12.
SENATOR THERRIAULT clarified that he would take Chairman Taylor's
suggestion to make the same change on line 7 to be a friendly
amendment to his amendment, but it is not his intent to make the
same change on line 12 as that applies to a sales tax.
CHAIRMAN TAYLOR asked if there was objection to adopting the
amendment and then objected for the purpose of allowing Senator
Austerman time to review the amendment.
SENATOR AUSTERMAN thanked Chairman Taylor.
CHAIRMAN TAYLOR announced that with no further objection, the
amendment was adopted.
CHAIRMAN TAYLOR moved to replace "five" on page 1, line 12, with
2.5 to limit the percent of sales tax that could be levied by the
state to 2.5. He noted that without objection, the motion
carried.
There being no further testimony, SENATOR COWDERY moved CSSJR
33(JUD) as amended from committee with individual
recommendations.
CHAIRMAN TAYLOR announced that without objection, the motion
carried.
The committee took up HB 196.
HB 196-RIGHT OF ACTION FOR LEGAL SEPARATION
REPRESENTATIVE FRED DYSON, sponsor of HB 196, reminded members
the committee had a hearing on this legislation last year. He
explained that HB 196 adds a new category in the process of
modifying the marriage status. Currently, a couple can annul a
marriage or get a divorce. 17 other states and the District of
Columbia have adopted an interim status, which is a legal
separation. It allows the couple to get a court decision on
separating their legal affairs and establishing custody and child
support payments on either an interim or final basis. He noted
for people on his side of the political-philosophical spectrum,
this issue often arises when a marriage is troubled and the
conduct of one of the members jeopardizes the family estate but
one partner does not believe in divorce. He explained this bill
will provide an interim status in those situations.
REPRESENTATIVE DYSON said, to his understanding, in other states
that have provided for legal separation, one percent of couples
who file for divorce choose this option. Alaska courts see about
3500 divorce actions per year so one might deduce that 35 of
those couples might choose legal separation instead. He said the
answer to the question of whether the courts are already doing
this is yes. Judges have the prerogative of granting a separate
maintenance agreement but if HB 196 is enacted, the courts will
have to consider the option of legal separation. In addition,
passage of HB 196 will make the public more aware of the option.
CHAIRMAN TAYLOR asked what would happen if one partner wants a
legal separation but the other wants a divorce.
REPRESENTATIVE DYSON said, to his understanding, the judge can
answer and rule in favor of either petitioner and have the
parties enter into an interim agreement for property settlement
protection while the divorce is underway. However, nothing
precludes either partner for filing for a divorce.
SENATOR THERRIAULT asked if HB 196 is identical to Senator
Wilken's legislation.
REPRESENTATIVE DYSON said it is.
CHAIRMAN TAYLOR said he consulted with three different attorneys
in the state whose practices consist of a lot of family law
cases. He said one, a gentleman in Fairbanks who also contacted
Senator Wilken, felt this legislation will provide an important
clarification in the law. The other two he spoke with felt this
legislation is unnecessary because sufficient legal basis exists
today for a court to provide all of the same authorizations
provided in HB 196. He said in weighing his decision, he does not
believe this bill does a disservice to the existing law and that
codifying what professionals in the field know exists today will
provide others with the knowledge that another option is
available. He commented that his 18 years in the legislature have
taught him to be cautious about the law of unintended
consequences. He fears, in passing this type of legislation, a
legal separation could be granted and years might go by while
both parties lead totally separate lives. One person might be
living in another state where common law relationships are
recognized, so the estate could become convoluted. He believes
there is some legal clarity with divorce and would feel more
comfortable with the idea of legal separation if there was some
time limitation attached to it but his concern is not serious
enough to stand in the way of the legislation. He then took
public testimony.
MR. DAVE GOLTER, a private practitioner from Wasilla, informed
members he has practiced family law in the Mat-Su Valley for
about 17 years. He stated support for HB 196 because he believes
clarification of the law is necessary for several reasons. First,
there are statutes that authorize a judge to do much of what is
accomplished in HB 196, but those statutory provisions leave
questions about how far a judge can go and on what authority.
Questions arise in the judicial branch as well. He must counsel
his clients that attorneys have not had a lot of experience with
the judges on how they are going to interpret these laws and rule
on these issues. He has found that most of the people he has
discussed this option with are not interested in being a test
case.
MR. GOLTER said his interpretation of existing law is that the
courts have the right to decide issues of custody and support
outside of the context of the divorce. However, he does not know
if he could convince a judge to divide up marital property
outside of the context of divorce and what the ramifications
would be if the judge did so and a divorce was granted later. He
repeated that for those reasons, it would be helpful to have a
reference in the statutes to legal separation. He said he has
received a call from one couple that wants to know the status of
this bill.
CHAIRMAN TAYLOR asked Mr. Golter to comment on his concern that
the bill contains no time limitation for a legal separation.
MR. GOLTER said one thought that came to mind is that he has had
experiences with couples who go about their separate lives but
don't get a divorce until a legal complication arises so he does
not know that it is extremely uncommon for couples to handle
their marital affairs that way.
CHAIRMAN TAYLOR asked how after-born children would be treated
and whether they would become children of the marriage.
MR. GOLTER said he thinks everyone is aware that parents are
sometimes not married and, in his experience, there is not much
difference in the way the custody laws apply to married versus
unmarried parents. The same standards apply.
CHAIRMAN TAYLOR said if a married couple separates and the woman
gives birth to a child who is not of her husband, under the
bastardy laws of the State of Alaska, that child is presumed to
be a child of that marriage. Denial of paternity will require a
lengthy court proceeding. He noted if the mother was on welfare,
state agencies are then involved and could garnish the wages of
the husband for child support purposes.
MR. GOLTER said that is correct and that there is a presumption
but it is a rebuttable presumption. He said he believes paternity
actions are done voluntarily but if not, courts are very quick to
order one and the question is usually resolved right away. He
said he agrees with Chairman Taylor that it could present a
substantial problem for a separated husband but that would be
something he could take into account when deciding to allow a
separation to continue. He noted that if one spouse does not
agree, he or she could move for divorce.
CHAIRMAN TAYLOR replied:
I understand that. I'm just trying to think of examples
of the concerns that I have. In some circumstances it
may very well be that neither party goes on welfare. No
state or federal agency gets involved but additional
child or children are born. They're considered born of
that marriage and, as a consequence, dad now dies
intestate. Who are his children?
MR. GOLTER said in such a circumstance, there would be a
presumption of paternity but it could be rebutted.
CHAIRMAN TAYLOR said it would have to be rebutted after the
father's or mother's death during a probate action to dispute the
division of the intestate estate and the issue of decedent. He
said he understands the religious concerns but he knows of cases
in which people were separated for 20 years and never did
anything until, "the IRS showed up on their doorstep and they
found out that my husband hadn't paid taxes and now I am
bankrupt." He then thanked Mr. Golter for his testimony.
SENATOR COWDERY moved CSHB 196(JUD) from committee with
individual recommendations.
CHAIRMAN TAYLOR announced that with no objection, CSHB 196(JUD)
moved from committee.
The committee took up SB 344.
SB 344-TERRORISM AGGRAVATING FACTOR
CHAIRMAN TAYLOR stated that he introduced this legislation
because of an article that appeared some years ago in the Earth
First journal. He said his concern stems from the fact that he is
seeing more articles in the newspaper about people acting out and
committing arson to protect animals or protect the earth. He said
that those acts would be considered terrorism in any other forum.
SB 344 increases the aggravating factors at sentencing should a
person be found to have committed a criminal act for these
purposes. He then took public testimony.
MS. JENNIFER RUDINGER, Alaska Civil Liberties Union (ACLU), said
the ACLU is a non-profit organization dedicated to preserving and
defending the principles of liberty and free speech guaranteed in
the Bill of Rights and the Alaska Constitution. The ACLU urges
committee members not to pass SB 344 from committee because
rather than punishing criminal acts, this bill punishes political
ideas and motivations, which are at the core of what the First
Amendment was adopted to protect, that being the right of
citizens to petition their government for redress of grievances
and the right of dissenting voices to be heard. She clarified
that the ACLU does not oppose the criminal prosecution of people
who commit acts of civil disobedience if those acts result in
property damage or place people in danger. That type of behavior
is already illegal. However, such crimes are often not what
Alaskans think of as terrorism and it would be very unfortunate
if the legislative response to terrorism is to start turning
ordinary Alaskans into terrorists just because their motivation
is to effect political change.
MS. RUDINGER stated that under the sweeping definitions in SB
344, the desire to effect change could in and of itself be
sufficient to aggravate the sentences or people whose civil
disobedience does not come anywhere near the level of what
Alaskans think of as terrorism. She said recent examples are the
World Trade Organization protestors who engaged in minor acts of
vandalism or anti-abortion protestors who engage in civil
disobedience by blocking entry to clinics.
TAPE 02-11, SIDE B
MS. RUDINGER said another example is the people in Puerto Rico
who committed civil disobedience to stop the use of the island of
Puerto Rico for weapons testing and bombing. She repeated the
criminal acts of vandalism and assault in those examples should
be punished and existing law allows for punishment of acts
involving force or violence against persons or property, as SB
344 recognizes. However, the motivations of the protestors to
influence world economic policy, to dissuade women from seeking
abortions or to change U.S. policy with regard to bombing in
Puerto Rico are the bedrock of democracy. She concluded by saying
she supports Chairman Taylor's effort to punish criminal acts,
but in legislators' efforts to protect Alaskans from real
criminal threats, it is important that they not criminalize ideas
and beliefs protected by the First Amendment by punishing
Alaskans' political motivations.
SENATOR DONLEY asked Ms. Rudinger if the ACLU has taken a
position on hate crimes legislation.
MS. RUDINGER replied that about eight or nine years ago, the
national ACLU submitted a brief to the U.S. Supreme Court urging
it to uphold a Wisconsin hate crimes enhancement statute as being
constitutional, however the ACLU also asked the Supreme Court to
set forth a clear set of rules governing the use of these
statutes. The ACLU warned the court that if the state is not able
to prove that a defendant's speech is directly linked to the
criminal behavior, chances would increase that the state's hate
crime prosecution would be politically motivated. She told
Senator Donley that she appreciated the question because the
issue is very complicated. She said the ACLU is against hate
speech codes in which only politically correct speech is
tolerated, but it does support a narrowly crafted hate crime bill
if it has restrictions on the kind of evidence introduced. She
asserted that the intent and the effect of hate crimes is to
oppress and silence a group of vulnerable people using fear. She
emphasized the importance of ensuring that the evidence
introduced is limited to the hate crime charges.
SENATOR DONLEY asked if the ACLU does not oppose hate crimes
legislation if there is linkage between the actual speech or
thought.
MS. RUDINGER said she thought Senator Donley was right but it is
a tough line to draw. ACLU opposed Senator Ted Kennedy's bill in
Congress unless it was amended to narrow the kind of evidence
that could be introduced. The ACLU was leery of the broad scope
of the bill and how much of a person's beliefs and associations
could be used against them in a trial about a particular crime.
However, sometimes speech is related to a crime, such as in a
lynching, so it is a very difficult line to draw. The ACLU
supports hate crime legislation overall because of the oppressive
effect hate crimes have on vulnerable groups of people.
SENATOR DONLEY asked if the ACLU has extended its area of concern
into disparate treatment based on race or other non-permissible
factors.
MS. RUDINGER asked Senator Donley to be more specific.
SENATOR DONLEY asked Ms. Rudinger if the ACLU has taken a
position on the Governor's proposed subsistence amendment.
MS. RUDINGER said the ACLU supports a constitutional amendment
but it hasn't yet testified on the issue. The ACLU does not see
the subsistence issue as a race-based issue but one of necessity
that is connected to freedom of religion and spiritual heritage.
She said the short answer is the ACLU does support a
constitutional amendment or some kind of protection of
subsistence use based on the fact that subsistence is so integral
to Native culture - it goes beyond simply food and gets into the
spiritual heritage of the culture.
SENATOR DONLEY asked why the ACLU feels a constitutional
amendment is necessary when the state already prioritizes
subsistence uses as the highest priority use. The only purpose of
a constitutional amendment would be to provide for discrimination
of urban subsistence users to the benefit of rural subsistence
users, not necessarily based on any merit or cultural background.
MS. RUDINGER responded by saying the ACLU wouldn't limit its
support to just a constitutional amendment but it would support a
subsistence preference in times of shortage, the reason being
that subsistence is so much a part of the culture and heritage.
Subsistence is not simply a matter of gathering food. The Alaska
Constitution gives everyone the right to eat. The ACLU supports
subsistence because it believes it is a very important matter
that needs to be resolved and it will only come into play in
times of shortage. She repeated that during times of shortage, it
is very important to protect the spiritual heritage of Alaska
Natives. She offered to meet with Senator Donley at another time
to elaborate further.
SENATOR DONLEY said he appreciates Ms. Rudinger's offer and
explanation but he doesn't believe her explanation is consistent.
MS. RUDINGER remarked that it is hard to sum up a position on an
issue like subsistence in a short time period.
SENATOR DONLEY noted the Anchorage Assembly thinks it's competent
enough to do so.
CHAIRMAN TAYLOR said he was fascinated by Ms. Rudinger's comment
that the ACLU supports hate crime legislation if it contains a
sufficient limitation upon the evidence of motive or the evidence
of hate.
MS. RUDINGER agreed that is what she said and stated the ACLU is
opposed to hate speech codes. The ACLU does not believe speech
can be restricted and, in fact, the ACLU has defended the rights
of numerous groups whose speech she can't stand. The ACLU
defended the rights of the Nazi party to peaceably march through
a primarily Jewish town in Illinois. However, when it comes to
hate crimes, the motivation in itself does harm. The motivation
behind a hate crime is not just aimed at the victim of the crime
but it is aimed at an entire group of people and sends the
message that this will happen to you if you assert your rights.
The ACLU is very cautious however, and has opposed hate crime
bills that include speech.
CHAIRMAN TAYLOR said SB 344 refers to the defendant's criminal
conduct so it does not apply to anything that is defensible under
the First Amendment because that wouldn't be criminal conduct. He
read from SB 344, "...the defendant's criminal conduct involved
the use of force or violence against persons or property and was
designed to (A) intimidate or coerce a civilian population." He
asked, "Isn't that what a lynching is all about?"
MS. RUDINGER said SB 344 does not affect criminal conduct because
the conduct has already been punished. SB 344 does say that at
sentencing for that conduct, there's an aggravating factor as to
what the motivation was in the mind of the person who committed
the act.
CHAIRMAN TAYLOR asked, "Isn't that what we do in all sentencing?
Don't we look to the motive and the mens rea - the criminal
intent of the individual?"
MS. RUDINGER replied:
Mr. Chairman, intent and motive are different. The
intent is to commit the act or to see that the harm
itself is done but the motives listed here are not just
to commit the act, but to send a message. This looks at
is the motive behind the act being committed, is that
motive to send a message. The sending of a message,
however unpopular the message may be, is exactly what
the First Amendment was designed to protect. We can
punish the means, and we already do in the first part
of statute 12.55.155 and .125 but the motive, the
thought, we cannot and should not punish, especially -
we have some concerns about how vaguely these are
worded... as I look at all of the verbs in here, I
think they all boil down to wanting to make political
change.
CHAIRMAN TAYLOR asked how the verbs are any different than those
found within the definitions of the various hate crime laws that
Ms. Rudinger mentioned. He questioned how the lynching she used
as an example was not designed by the Ku Klux Klan to intimidate
or coerce a civilian population?
MS. RUDINGER said clearly lynchings and hate crimes are designed
to intimidate but the difference between hate crimes and SB 344
is who the intimidation is aimed at. She noted the motivation
behind a hate crime is designed to intimidate and oppress groups
of people who have been oppressed in the past.
CHAIRMAN TAYLOR asked why hate crimes only apply to groups who
have been intimidated in the past.
MS. RUDINGER said the hate crimes bills that she has seen have
tried to protect people from being oppressed by violence. The
bills are aimed at correcting past discrimination. She stated
there is a big difference between oppressing a group of people
who are vulnerable and intimidating the government. Any kind of
protest is designed to influence the policy of a government, and
one could argue by intimidation if a lot of voters are going to
be upset by it.
CHAIRMAN TAYLOR commented, "Not by criminal conduct, I hope."
MS. RUDINGER said the conduct should be punished under the first
part of the statute.
CHAIRMAN TAYLOR asked if that punishment should not be aggravated
by what the conduct was designed to do. He stated, "If it was
intentionally designed by the people who did the criminal conduct
to intimidate and coerce all of the people living down river from
the dam when they blew the dam up, and they blackmailed on that
basis, they said pay us $2 million or we'll blow up the dam.
That's pure and simple, we don't have a problem with that one.
But, if instead they say you cannot allow that nuclear power
plant to be built down river or we'll blow up your dam, somehow
that's free speech and the other one is not. It's a criminal act
that should be punished. Why should the aggravator not apply?"
MS. RUDINGER said both acts are criminal acts. The acts
themselves say harm will come if something isn't done. She
continued, "The acts themselves are criminal conduct and this, of
course, is limited to using force or violence, not just
threatening to use force or violence."
CHAIRMAN TAYLOR said that is correct.
MS. RUDINGER stated:
The only thing that your bill changes is the part that
says and was designed to (A)(B)(C)(D), in other words,
the motivation was (A)(B)(C) or (D). Those motivations
are so vaguely worded, we have some real concerns about
protected free speech being swept into them just
because that speech might be politically unpopular if a
prosecutor wanted to try to add some aggravating
sentences and send a message.
CHAIRMAN TAYLOR said he understood Ms. Rudinger's point.
SENATOR THERRIAULT noted there must be the underlying commission
of a crime so none of SB 344 would be triggered unless a person
commits and is convicted of a crime. He said he believes a lot of
limits were built into SB 344 by the way it is structured.
MS. RUDINGER gave the example of the WTO protest several years
ago at which protesters got out of hand. The individuals who
vandalized the car would be prosecuted. If SB 344 was in force,
it would apply during the sentencing stage. Without SB 344, the
sentence would be whatever it is for vandalizing a car. With SB
344, it would be possible to say that because the motivation of
the act was to influence the economic policy, the sentence should
be worse. She said the motivation is protected by the First
Amendment but the act is not so SB 344 would be turning the First
Amendment on its head.
SENATOR THERRIAULT asked if the question is whether the
perpetrator wanted to affect policy change through the commission
of a crime.
MS. RUDINGER replied, "No, the conduct should be punished but
it's not the same thing to say we want to affect policy as to say
well, we want to affect policy by - you know, things got out of
hand so we should not be responsible." If things get out of hand,
the protester is responsible and should be punished for the act,
but to say the motivation is an aggravating factor says the act
itself is even worse because of the motivation.
CHAIRMAN TAYLOR said, regarding the WTO protest, from the reports
he has seen, nothing got out of hand, it was well planned and
orchestrated to create mob violence in downtown Seattle. He
stated:
Inability to show total conspiracy on the part of those
individuals - somehow it's okay now to yell fire in a
crowded theatre if you're doing it for the right reason
but the judge shouldn't consider that the outcome of
your act, if you were not doing it for some politically
correct reason, that somehow the judge has to have
blinders on and go, oh no. You were Mahatma Gandhi in
the middle of the theatre and you just yelled fire and
it happened to get out of hand and you didn't do it for
any other reason but if you were part of the WTO
protesters and you sent a person into every single
theatre in town and the yelling of fire occurs all at
the same time, that the judge is not supposed to
consider that as an aggravating factor? That was what
your criminal conduct was designed to do?
MS. RUDINGER stated that shouting fire in a crowded theatre with
the obvious intent of causing a panic would not be protected
speech. In the example of a protest that gets out of hand, even
if there was a conspiracy to cause a riot, she felt Chairman
Taylor was saying that some people were caught and some were not
so this would be a way to tie in those who weren't caught.
CHAIRMAN TAYLOR said he was not suggesting that at all.
MS. RUDINGER said SB 344 only comes into play at sentencing,
after a person has been convicted.
CHAIRMAN TAYLOR said SB 344 only comes into play after all of the
events have occurred. The person was found guilty and is standing
before the court to be sentenced. He said Ms. Rudinger is telling
him that the Alaska Legislature can't tell the judge to look into
the heart of the individual and the heart of the action that
occurred to determine what the action was designed to accomplish
- whether the intent of the protester was to be part of a group
to intimidate and coerce another group of people, just like a
lynching was intended to. He asked Ms. Rudinger how she makes the
fine line distinction between that which is a protected designed-
to-do activity because it might involve speech and is a criminal
act, and that which is not protected. He said apparently it is
politically correct to use hate crime legislation and to use, as
an aggravator, somebody who lynches a black person, yet it is not
politically correct to use, as an aggravator, somebody who tears
up downtown Seattle, puts people in hospitals and causes mayhem.
MS. RUDINGER responded that most Alaskans would want a person who
threw a rock through a window to be punished but would not think
of that act as terrorism.
CHAIRMAN TAYLOR said maybe his act wasn't designed for that
purpose.
MS. RUDINGER said, regarding Chairman Taylor's question on how to
draw that line, she agrees it is a difficult line to draw so she
would look to the First Amendment, which she read parts of. The
First Amendment provides for the right of people to peaceably
assemble and to petition the government for a redress of
grievances. She said that according to Section (C) of SB 344, the
aggravating factor would apply to acts that "affect the conduct
of a unit of government;". Therefore redressing the government
for grievances would be the motive.
CHAIRMAN TAYLOR clarified that it applies to criminal conduct
used to influence government and asked what is so shocking about
that. He pointed out that by statute, one cannot coerce or
financially threaten a seated legislator on how they vote.
MS. RUDINGER said the ACLU agrees with that statute but SB 344
doesn't affect it. She said:
We've already got criminal conduct. We've got a
conviction and now we're at sentencing. This bill
really says [it applies if] that criminal conduct was
designed to (A)(B)(C)(D) and the (A)(B)(C)(D) look like
the First Amendment's goal of protecting - affecting
change. It's the motivation that is the aggravating
factor. The motivation is affecting political change,
the behavior should be punished and we completely
agree, no one has a right to use violence or force
against people or property for any reason - we agree.
CHAIRMAN TAYLOR said there must be some reasons for which the
ACLU is saying there should be no aggravators.
MS. RUDINGER stated it is not the conduct, it's the idea behind
it that SB 344 is affecting. She clarified that she is saying
those should not make the sentence worse; they should not be
aggravators.
CHAIRMAN TAYLOR said he has a difficult time working that
rationale into watching the Twin Towers collapse on September 11.
He can't believe those acts were any other than criminal acts
designed to intimidate or coerce a civilian population, influence
the policy of a government by intimidation or coercion, affect
the conduct of a unit of government, or influence the policy of a
private enterprise by intimidation or coercion. He said in
essence, Ms. Rudinger is saying those perpetrators should be
charged with violating flight laws of the U.S. Government and
that conduct should be punished.
MS. RUDINGER disagreed and said her caution to the Legislature is
that SB 344 will "throw the baby out with the bath water."
Alaskans need protection from real terrorists but SB 344 is
worded so broadly it could sweep into its scope protected First
Amendment activity by protesters.
CHAIRMAN TAYLOR said his difficulty in understanding her concern
is:
The fellow who goes out because he's all concerned
about the environment and drives ceramic spikes into a
tree because he knows that the detection unit for metal
objects will not register the ceramic spike, and then
the ceramic spike in the tree ends up in a mill in
Oregon where it goes through, and he knows that it's
going to that plant, it goes through a high speed saw.
The saw hits the ceramic spike and the saw blows up and
kills the workman inside the plant. Now those are
actual facts. What's he guilty of - of trespassing on
the tree? Or did he intend and was his act and conduct
designed to intimidate and coerce an entire section of
our population. And if there's something in there about
his freedom of speech because he thought he was doing
it for some good purpose, I'm having a hard time
understanding your analogies.
MS. RUDINGER said he would be guilty of the criminal conduct,
which gets him to the sentencing phase.
CHAIRMAN TAYLOR asked if, at the sentencing stage, the judge
should consider why he was motivated to design and carry out the
act.
MS. RUDINGER said at the sentencing phase, the fact that somebody
wanted to affect political change should not be an aggravating
factor on the sentence. The sentence should be harsh because
someone died but the motivation of wanting to affect change
should not be the factor that makes the sentence worse.
CHAIRMAN TAYLOR replied:
The Unabomber should not be - should not have his
sentence enhanced because of the thing that motivated
him to blow people up? He should only be convicted of
and sentenced to whatever damage, I guess, the bomb
caused when it went off? Nobody should consider his
motivation for doing it? I find that difficult to
understand why you would expect the judge to have those
blinders on.
MS. RUDINGER said that is not what she is saying. She is saying
that SB 344 is so broadly worded that in his attempt to go after
real terrorism, he is sweeping into the scope of this bill people
who the ACLU doesn't think of as terrorists. She noted if an
abortion protester uses force to block a person from entering a
clinic, the protester will be arrested for assault or battery but
the motivation could have been to affect change and should not be
an aggravating factor in sentencing. She pointed out that the
First Amendment does not protect a person who uses criminal acts
to affect change, and SB 344 does not change that.
CHAIRMAN TAYLOR noted that civil disobedience is not civil if a
person hurts another; the act is criminal. The Constitution does
not sanction criminal acts as free speech.
MS. RUDINGER said the ACLU is not saying that the act is an act
of free speech. The act is an act of violence. She said the ACLU
agrees with the premise that criminal conduct should be punished
but it does not agree the sentence should be harsher because the
criminal conduct was done to make a political statement. The ACLU
believes doing so could be dangerous because it will lead to
prosecution of unpopular political ideas as an aggravating
factor.
CHAIRMAN TAYLOR said he understands Ms. Rudinger's point and
appreciates the discourse, as it is important to have it on the
record. There was no further testimony on SB 344.
SENATOR COWDERY moved SB 344 to the next committee of referral
with individual recommendations.
CHAIRMAN TAYLOR announced that without objection, SB 344 moved to
the next committee of referral.
The committee took up HB 297.
HB 297-CRIMES: RESTITUTION & AGGRAVATING FACTORS
REPRESENTATIVE KEVIN MEYER, sponsor of HB 297, said this bill has
been a learning experience for him, as it has become a "Christmas
tree" bill. He said that is acceptable to him as the original
intent of his legislation is still intact and the additions
improve the juvenile restitution program. He explained that
Section 2 of the committee substitute contains the contents of HB
297. It adds an aggravating factor when drugs or excessive
alcohol are used to incapacitate a person to the point where they
become the victim of a sexual assault. He believes the
seriousness of such conduct should be elevated in the eyes of the
court. He noted that sexual assault is devastating Alaska
communities. He began working on this bill because the "date-
rape" pill is being used to commit more sexual assaults. Sex
offenders who use those pills often do so to prevent the victim
from resisting. CSHB 297(JUD) does not require the courts to
impose stricter penalties, it simply gives the court the ability
to do so.
REPRESENTATIVE MEYER explained the other sections of the bill
amend the juvenile restitution statutes and were included at the
request of Senator Halford.
Section 1 creates a new section declaring that if a conviction is
set aside, the restitution will remain enforceable. He explained
that sometimes a conviction is set aside when part of the
sentence was served. Section 1 ensures that restitution is paid
even if the conviction is set aside.
Section 3 relates to delinquency disposition orders. Under
current law, juveniles and parents are required to submit full
financial statements when restitution is being decided. Section 3
requires full financial statements only when one party requests
them. He noted that in most cases, full financial statements are
not necessary because the amount of restitution is less than a
permanent fund dividend. However, if damages run into thousands
of dollars, full financial statements would be required.
Section 4 makes sure that restitution orders are not terminated
just because the offender has "aged-out" of the authority of the
juvenile system. Restitution must be paid even though the
thth
offender has reached his or her 19 or 20 birthday.
Section 5 relates to the paperwork process for restitution
payments. The current process has the paperwork going from the
Department of Health and Social Services to the court system to
the Department of Law for collection. Section 5 will allow the
paperwork to go directly from the Department of Health and Social
Services to the Department of Law to make the process more
efficient.
REPRESENTATIVE MEYER asked the committee to support SCS CSHB
297(HUD) and noted he had several people available to answer
questions.
SENATOR THERRIAULT asked what is repealed in Section 6.
REPRESENTATIVE MEYER said it applies to mandatory financial
disclosure.
SENATOR DONLEY moved to adopt the proposed Senate Judiciary CS
(Luckhaupt 3/22/02, Version S) as the working document of the
committee.
CHAIRMAN TAYLOR announced that without objection, SCS CSHB
297(JUD) was before the committee.
REPRESENTATIVE MEYER asked if the committee needed to take action
on the concurrent resolution.
SENATOR DONLEY suggested that Chairman Taylor introduce the
concurrent resolution on the Senate floor.
CHAIRMAN TAYLOR maintained that it is "ready to go."
SENATOR THERRIAULT noted that, in general, a bill contains a
repeal section when new statutory sections are added but he did
not see any.
CHAIRMAN TAYLOR clarified that the new material was added to
.120.
MS. ANNE CARPENETI, representing the Criminal Division of the
Department of Law, explained that repealing the section requiring
mandatory financial disclosure will make disclosure optional at
the request of various parties. For example, if the victim
advocate requested financial disclosure, the court would be
required to order it. She noted in most cases, financial
disclosure is not necessary because the restitution amounts to
less than the permanent fund dividend.
SENATOR THERRIAULT asked if the language is being repositioned on
the bottom of page 2, line 29.
MS. CARPENETI said that is correct.
CHAIRMAN TAYLOR asked if the requirement that orders for
restitution remain past the age of minority applies to other
orders for restitution in district and superior courts.
MS. CARPENETI said she believes so. She noted this requirement
has been passed by the legislature in all forms of restitution
and Section 1 actually clarifies in statute that in a suspended
imposition of sentence, the restitution order survives.
There being no further testimony, SENATOR DONLEY moved SCS CSHB
297(JUD) from committee with individual recommendations and any
accompanying fiscal notes.
CHAIRMAN TAYLOR announced that without objection, SCS CSHB
297(JUD) moved from committee. He also announced that the
committee would introduce a Senate concurrent resolution to
provide for the title changes necessitated by the changes made in
the committee substitute. There being no further business to come
before the committee, he adjourned the meeting at 3:15 p.m.
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