Legislature(2003 - 2004)
04/21/2004 08:05 AM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
April 21, 2004
8:05 a.m.
TAPE(S) 04-48,49,50
MEMBERS PRESENT
Senator Ralph Seekins, Chair
Senator Scott Ogan, Vice Chair
Senator Gene Therriault
Senator Johnny Ellis
Senator Hollis French
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
CS FOR HOUSE BILL NO. 83(JUD)
"An Act adopting a version of the Revised Uniform Arbitration
Act; relating to the state's existing Uniform Arbitration Act;
amending Rules 3, 18, 19, 20, and 21, Alaska Rules of Civil
Procedure, Rule 601, Alaska Rules of Evidence, and Rule 402,
Alaska Rules of Appellate Procedure; and providing for an
effective date."
MOVED CSHB 83(JUD) OUT OF COMMITTEE
SENATE BILL NO. 385
"An Act relating to homeland security, to civil defense, to
emergencies and to disasters, including disasters in the event
of attacks, outbreaks of disease, or threats of attack or
outbreak of disease; establishing the Alaska division of
homeland security and emergency management in the Department of
Military and Veterans' Affairs and relating to the functions of
that division and that department; and providing for an
effective date."
MOVED CSSB 385(JUD) OUT OF COMMITTEE
HOUSE CONCURRENT RESOLUTION NO. 29 am
Relating to support for therapeutic courts for repeat driving
while under the influence offenders.
MOVED HCR 29 am OUT OF COMMITTEE
CS FOR HOUSE BILL NO. 56(L&C)
"An Act relating to the award to the state of actual reasonable
attorney fees and costs, including costs of investigation, in
certain court actions relating to unfair trade practices; and
amending Rules 54(d), 79, and 82, Alaska Rules of Civil
Procedure."
MOVED CSHB 56(L&C) OUT OF COMMITTEE
CS FOR HOUSE BILL NO. 514(FIN) am
"An Act relating to child support modification and enforcement,
to the establishment of paternity by the child support
enforcement agency, and to the crimes of criminal nonsupport and
aiding the nonpayment of child support; amending Rule 90.3,
Alaska Rules of Civil Procedure; and providing for an effective
date."
SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: HB 83
SHORT TITLE: REVISED UNIFORM ARBITRATION ACT
SPONSOR(s): REPRESENTATIVE(s) BERKOWITZ
02/07/03 (H) READ THE FIRST TIME - REFERRALS
02/07/03 (H) JUD
03/07/03 (H) JUD AT 1:00 PM CAPITOL 120
03/07/03 (H) -- Meeting Postponed to 03/10/03 --
03/10/03 (H) JUD AT 1:00 PM CAPITOL 120
03/10/03 (H) Heard & Held
03/10/03 (H) MINUTE(JUD)
03/12/03 (H) JUD AT 1:00 PM CAPITOL 120
03/12/03 (H) Moved CSHB 83(JUD) Out of Committee
03/12/03 (H) MINUTE(JUD)
03/31/03 (H) JUD RPT CS(JUD) 4DP 2NR
03/31/03 (H) DP: GARA, ANDERSON, GRUENBERG, MCGUIRE;
03/31/03 (H) NR: SAMUELS, COGHILL
04/16/03 (H) TRANSMITTED TO (S)
04/16/03 (H) VERSION: CSHB 83(JUD)
04/17/03 (S) READ THE FIRST TIME - REFERRALS
04/17/03 (S) L&C, JUD
05/13/03 (S) L&C AT 2:00 PM BELTZ 211
05/13/03 (S) Heard & Held
05/13/03 (S) MINUTE(L&C)
05/15/03 (S) L&C AT 7:45 AM BUTROVICH 205
05/15/03 (S) Moved Out of Committee
05/15/03 (S) MINUTE(L&C)
05/16/03 (S) L&C RPT 3NR
05/16/03 (S) NR: BUNDE, SEEKINS, STEVENS G
03/05/04 (S) JUD AT 8:00 AM BUTROVICH 205
03/05/04 (S) Scheduled But Not Heard
03/12/04 (S) JUD AT 8:00 AM BUTROVICH 205
03/12/04 (S) Scheduled But Not Heard
04/21/04 (S) JUD AT 8:00 AM BUTROVICH 205
BILL: SB 385
SHORT TITLE: SECURITY;DIV. HOMELAND SECURITY/EMER. MGT
SPONSOR(s): HEALTH, EDUCATION & SOCIAL SERVICES
04/05/04 (S) READ THE FIRST TIME - REFERRALS
04/05/04 (S) HES, FIN
04/05/04 (S) HES AT 1:30 PM BUTROVICH 205
04/05/04 (S) Heard & Held
04/05/04 (S) MINUTE(HES)
04/07/04 (S) HES AT 1:30 PM BUTROVICH 205
04/07/04 (S) -- Rescheduled to 5:30 pm 04/07/04 --
04/07/04 (S) HES AT 5:30 PM BUTROVICH 205
04/07/04 (S) -- Rescheduled from 1:30 04/07/04 --
04/08/04 (S) HES RPT CS 2DP 2NR SAME TITLE
04/08/04 (S) DP: DYSON, WILKEN; NR: GUESS, DAVIS
04/16/04 (S) FIN REFERRAL WAIVED REFERRED TO RULES
04/20/04 (S) JUD REFERRAL ADDED AFTER HES
04/20/04 (S) JUD WAIVED PUBLIC HEARING NOTICE,RULE23
04/21/04 (S) JUD AT 8:00 AM BUTROVICH 205
WITNESS REGISTER
Senator Fred Dyson
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Presented SB 385 for the Senate Health,
Education and Social Services Committee and testified in support
of CSHB 56(L&C)
Mr. Dave Liebersbach
Division of Emergency Services
Department of Military & Veterans Affairs
PO Box 5750
Fort Richardson, AK 99505-5750
POSITION STATEMENT: Answered questions about SB 385
Mr. Jim Butler
Kenai, AK
POSITION STATEMENT: Made suggestions to improve SB 385
Mr. David Gibbs
Emergency Manager
Kenai Peninsula Borough
Kenai, AK
POSITION STATEMENT: Made suggestions to improve SB 385
Lt. Al Storey
Division of Alaska State Troopers
Department of Public Safety
3700 East Tudor Road
Anchorage, Alaska 99507
POSITION STATEMENT: Answered questions pertaining to SB 385
Mr. Dean Guaneli
Assistant Attorney General
Department of Law
PO Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Answered questions pertaining to SB 385
Representative Les Gara
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Sponsor of HB 56
Mr. John Bittner
Staff to Representative Cheryl Heinze
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Presented HCR 29am for the sponsor
Ms. Janet McCabe
Partners for Progress
POSITION STATEMENT: Supports HCR 29am
ACTION NARRATIVE
TAPE 04-48, SIDE A
CHAIR RALPH SEEKINS called the Senate Judiciary Standing
Committee meeting to order at 8:05 a.m. Senators Ogan, Ellis,
French and Chair Seekins were present. The committee took up HB
83.
CSHB 83(JUD)-REVISED UNIFORM ARBITRATION ACT
CHAIR SEEKINS asked members if everyone had a chance to review
the revised uniform arbitration act bill. All members signified
they had.
SENATOR FRENCH moved to pass CSHB 83(JUD) to its next committee
of referral with its attached zero fiscal note.
CHAIR SEEKINS announced that without objection, the motion
carried.
[See corrected motion made later in the meeting.]
SB 385-SECURITY;DIV. HOMELAND SECURITY/EMER. MGT
CHAIR SEEKINS noted the committee would take up SB 385, which
was given an additional referral to the committee yesterday.
SENATOR FRED DYSON, chair of the Senate Health, Education and
Social Services Committee, asked members to consider a proposed
committee substitute, labeled version I, as the working document
before the committee.
SENATOR OGAN moved to adopt version I as the working document
before the committee.
CHAIR SEEKINS announced that version I was adopted with no
objection.
SENATOR DYSON told members similar legislation was originally
introduced in the House but has been "hung up" there for various
reasons. As a result, the Administration asked the Senate HESS
Committee to sponsor this legislation. He thanked the Senate
leadership for expediting it. He said the purpose of SB 385 is
twofold. First, it reflects in statute the creation of the
Department of Homeland Security as a new organization. Second,
it adds a new category under which an emergency can be declared
and emergency powers used, that being in the case of an eminent
threat of a terrorist attack. He advised that SB 385 will grant
[the governor with] emergency powers to address a credible
threat of an attack. Senator Dyson informed members that during
the Christmas holiday, the state received credible information
about a planned attack in Valdez. The Department of Public
Safety (DPS), the Alaska National Guard, and the Alaska State
Defense Force were mobilized for 20-plus days.
SENATOR DYSON pointed out that as a member of the Senate Finance
subcommittee on the Department of Military and Veterans Affairs
(DMVA), he was unable to ask questions about DMVA's preparedness
for dealing with a terrorist threat without compromising
security. Therefore, SB 385 allows for a homeland security
emergency management oversight committee, made up of
legislators. Its meetings will be closed and committee members
will have to pass security clearances and sign confidentiality
agreements, similar to the intelligence oversight function of
Congress. He said he must ask for information to know whether or
not the Department of Homeland Security has done an adequate job
of preparedness but he sure would not want our enemies to know
that information. The new section creating the oversight
committee was not in the House version of the bill.
SENATOR DYSON said in the work done on the companion bill in the
House, DMVA worked through a number of jurisdictional issues
with DPS and the Department of Transportation and Public
Facilities (DOTPF). He believes all inter-agency conflicts have
been solved at this point. SB 385 also contains modifications
that make Second Amendment right enthusiasts comfortable. He
then referred to the explanation of changes to version I
distributed to members and described those changes as follows.
Section 2 is the new oversight committee and it's a
more extensive section than anticipated.
On page 9, line 16, the word "looking" was replaced
with the word "pertaining" for the sake of better
language.
On page 9, line 17, a provision was added that
requires any actions taken by the new department to be
subject to both state and federal constitutional
constraints.
CHAIR SEEKINS interjected to ask if that means the state is not
authorized to trample on anyone's civil rights.
SENATOR DYSON said yes, but under a declared state of emergency,
the emergency powers, for short duration, are excursions from
what are usually thought of as constitutional protections.
CHAIR SEEKINS asked if constitutional authorization exists for
that but anything outside of that purview would be forbidden.
SENATOR DYSON said that is exactly right. He felt the language
in the bill is unnecessary but it does no harm and makes it
clearer.
SENATOR DYSON continued his explanation of the changes in
version I.
On page 14, line 4, the word "terrorist" was added so
that it reads "In the event of an actual enemy or
terrorist attack in or against the state, or a
credible threat of an imminent enemy or terrorist
attack,"
CHAIR SEEKINS asked if "credible threat of imminent enemy or
terrorist attack" is defined in the bill.
SENATOR FRENCH noted that definition is on page 15.
CHAIR SEEKINS pointed out that three people must agree that a
credible threat exists prior to any exercise of these emergency
powers, according to the language on page 15, line 13.
SENATOR DYSON agreed.
{SENATOR THERRIAULT arrived at 8:17 a.m.]
SENATOR FRENCH noted according to that language it is uncertain
that the three people must agree but they must communicate. The
adjutant general must consult with the commissioner of public
safety to certify that a credible threat exists. The governor
would then be empowered to make a declaration of emergency
powers.
CHAIR SEEKINS agreed and said the governor cannot act
unilaterally.
SENATOR OGAN indicated that Legislative Legal and Research
Services finds the language on page 15, line 11, to be
problematic because the legislature cannot affect the powers of
the governor with a resolution and because the Legislative
Council has interim authority for the legislature. He suggested
delegating that power to the Legislative Council during the
interim. He thought the drafter was envisioning that a special
session of the legislature would be called to enact a concurrent
resolution to extend a state of emergency for longer than 30
days.
SENATOR DYSON agreed and noted that he intended to address that
issue. He asked Senator Therriault his opinion of the merits of
delegating this authority to the Legislative Council, versus
calling a special session of the legislature.
SENATOR THERRIAULT thought a level of emergency that went beyond
30 days would be of such a nature that the legislature could
meet in special session. He was uncertain that all members of
the legislature would be comfortable extending all of that power
to a subgroup. He questioned whether Senator Ogan's intent is to
allow the chair of the Legislative Council to take action.
SENATOR OGAN said he put that proposal on the table since the
Legislative Council has the authority to do things on behalf of
the legislature during the interim. He did not intend to give
that power to the chair of the Legislative Council.
CHAIR SEEKINS said he would be agreeable to giving that
authority to the Legislative Council if the legislature is
unable to convene in a special session.
SENATOR DYSON said first, members should agree the legislature
cannot compel the governor's action with a concurrent
resolution, so that provision should be changed so that the
legislature would have to enact a law instead.
SENATOR OGAN moved to amend line 11, to replace "concurrent
resolution" with "law" as a conceptual amendment [Amendment 1].
SENATOR THERRIAULT objected and asked what the legislature would
actually do to approve the governor's action, since the statute
would already be on the books.
SENATOR FRENCH thought a two-line bill would be introduced that
says pursuant to AS 26.20.040(b), the legislature hereby extends
the declaration of emergency made by the governor on a specific
date for another 30 days.
SENATOR THERRIAULT noted the legislature would be enacting a
temporary act.
SENATOR OGAN cautioned that transportation could be a serious
problem. He recalled that after 9/11, no planes were permitted
to fly, which could impede the convening of a special session.
CHAIR SEEKINS noted if the situation were that bad, it is
unlikely that anyone would object to the governor extending the
emergency declaration.
SENATOR DYSON commented, "Also, if we thought the governor was
off the reservation and doing inappropriate things, we could
call ourselves into special session and with a two or three line
bill, repeal his authority to do these things under law and/or
repeal it for a specific period of time to stop those things."
CHAIR SEEKINS felt that language creates a check and balance to
make sure no governor can extend those powers if the legislature
believes otherwise.
SENATOR DYSON repeated the legislature could repeal the
governor's powers in a special session.
SENATOR OGAN noted the Legislative Council can call a special
session.
SENATOR FRENCH referred to the certification process described
in subsection (c) on page 15, line 13, and asked if anyone
discussed what form the certification would take, such as a
document or oath from the adjutant general to the governor.
MR. DAVID LIEBERSBACH, acting assistant commissioner for
homeland security and director of the Division of Emergency
Services (DES), Department of Military & Veterans Affairs
(DMVA), gave the following answer.
Depending on the time limits I guess I would say, and
how rapidly things are occurring, it could simply be a
matter of consulting by phone with follow-up
documentation. Generally when we do these - and we're
most familiar with doing them in emergency disaster
declarations where we pull together a disaster policy
cabinet that meets within a few hours to a couple-
three days of the request for a declaration to give
advice to the governor, and then it's forwarded to the
governor with a recommendation yea or nay and the
governor can of course decide to declare or not. He
has that authority.
This is put in because we would anticipate we need to
move fairly quickly, particularly if we have good
intelligence as we did just prior to the holiday
season for Valdez. We had classified intelligence
that, even at this point, has not been made totally
public by the federal government, but we had a very
serious threat in a couple places in the country, one
of them being Valdez.
So what this does is it - as opposed to using the
disaster policy cabinet, which in fact isn't
established in statute or anything, it's just a system
set up through the Department of Military and Veterans
Affairs to provide a check and balance, if you will,
to disaster declarations, but a check and balance
within the administration. The commissioner of public
safety and the commissioner of military and veterans'
affairs would confer because we don't know down
through which lane we would get the intelligence. They
would discuss and determine it's credible and make a
recommendation to the governor. The governor could
then decide to invoke this type of thing.
We would see it that we would probably very quickly as
we start moving forward through whatever elements,
whether it's law enforcement or military or all or
other agencies of government, we would also be pulling
together a disaster policy cabinet, a broader cabinet,
to discuss the situation and make sure they understood
and were onboard. But we feel that there has the
potential for emergency that we need to do this a
little quicker than we do even some of our disaster
declarations where we already have the authority to
start moving forward within the department before the
declaration is actually made. We can do a certain
amount of things and make certain commitments - life
safety, etcetera. This is a little different because
the event hasn't happened. We just have the threat of
an event.
SENATOR FRENCH said his interpretation is that [the process]
depends on the situation and on how fast breaking it is but that
Mr. Liebersbach imagines in most cases it will be done orally.
MR. LIEBERSBACH thought the majority of certifications would be
documented up front because generally, DMVA has the intelligence
information far enough ahead to use the disaster policy cabinet.
This provision will allow an oral certification in a fast-
breaking situation.
CHAIR SEEKINS asked if this provision would only come into play
when a credible threat of attack occurs because this process
will be unnecessary if the state is under attack.
MR. LIEBERSBACH agreed and said if the state is under attack, a
state of disaster emergency would be declared under AS 26.23,
which would precipitate action.
SENATOR FRENCH asked if SB 385 will also cover natural disasters
and whether this legislation is an attempt to get "everybody
under one umbrella."
SENATOR DYSON said that is correct. SB 385 only adds the threat
of credible terrorist activity to existing law.
MR. LIEBERSBACH pointed out that AS 26.20, the civil defense
statute, was enacted in 1951. Title 26 is within DMVA; AS 26.23,
deals with natural and accidental human caused disasters and was
added later on. SB 385 addresses a threat or attack by
terrorists.
CHAIR SEEKINS redirected members' attention to Amendment 1
[replacing "concurrent resolution" with "law"]. He noted with no
continued objection, Amendment 1 was adopted.
CHAIR SEEKINS affirmed that members were comfortable with
Section 9(c) on page 15, line 13.
SENATOR DYSON continued with his description of the changes to
version I and asked Mr. Liebersbach for a definition of the word
"clearable" on page 2, line 29, which pertains to committee
members' security clearance.
CHAIR SEEKINS piped in that means able to obtain or able to
clear.
SENATOR FRENCH agreed but asked how one would know a member can
be cleared. He expressed concern that the clearance would be
post-dated since the committee might not be formed until a
threat occurs. He felt the language "back-fills" and suggested
looking at similar language used by other states.
SENATOR DYSON felt that language is a practical problem and
noted that Mr. Liebersbach could probably confirm that many of
the people in the homeland security department have not yet been
cleared and are operating on a provisional basis. His question
was whether the word "clearable" is definitive enough to quell
any legal issues.
SENATOR OGAN suggested that an entry-level background check
might occur - such as checking ASPIN for a history of arrests or
convictions. He thought a person involved in a subversive group
would not qualify to be in the legislature anyway because the
constitution provides grounds for removal of a person who
advocates the overthrow of the government.
SENATOR FRENCH said that some of his colleagues are working at
the U.S. Attorney General's Office and underwent an extensive
background check by the FBI, which included personal interviews
with acquaintances. He thought to get cleared at a secret level
would require a step beyond that.
MR. LIEBERSBACH told members there are three levels of
clearance. The top level is known as top secret and clearance
for that level takes about 18 months. He said most of what DMVA
will need can be achieved with the next level of clearance - the
secret level. He noted that staff at the U.S. Attorney General's
Office get top secret clearance, which is why the process is so
exhaustive. He added the difference between those two levels is
that top secret clearance allows a person to know the source of
intelligence information. The state uses the federal standards
for clearance, with the exception of a standard referred to as
"law-enforcement sensitive." That clearance if fairly easy to
get and does not require a background check; it only requires
the state troopers to sign off on it. He then described the
procedure for getting secret clearance and said the interim
clearance provided during that process is probably the origin of
the word "clearable" in SB 385.
CHAIR SEEKINS asked if requiring a legislator to have a federal
security clearance at the secret level or an interim federal
security clearance to serve on the committee would address
members' concerns.
MR. LIEBERSBACH believed it would address all concerns.
SENATOR ELLIS moved to adopt Amendment 2, which would read as
follows.
A M E N D M E N T 2
On page 2, line 29:
After "security clearance" insert "or interim federal
security"
Delete "or must be clearable at the secret level"
CHAIR SEEKINS noted that without objection, Amendment 2 was
adopted.
SENATOR DYSON directed members to a letter from Jennifer
Rudinger of the Alaska Civil Liberties Union, in which she
raised some interesting questions.
CHAIR SEEKINS asked Senator Dyson to proceed with his
description of the changes in version I and to address the ACLU
letter afterward.
SENATOR DYSON continued:
Chair Seekins suggested the next change. It
straightens out an inaccuracy in the House version by
adding the words "unincorporated village" and brings
that provision into conformity with existing state
law.
CHAIR SEEKINS noted that unincorporated community was considered
to be a political subdivision of the state, which it technically
is not.
SENATOR DYSON continued.
On page 22, a new subsection was added that
allows the legislative committee to organize
quickly. The Senate HESS version allowed the
oversight committee to organize after the
beginning of the next legislative session;
version I allows it to organize after SB 385
becomes law. SB 385 has an immediate effective
date.
SENATOR DYSON summarized that covers all of the changes
between the Senate HESS version and version I as amended.
CHAIR SEEKINS announced a brief recess at 8:50 a.m. to
allow members to review the letter from the ACLU.
Upon reconvening at 8:55 a.m., CHAIR SEEKINS asked Senator
Dyson to comment on the ACLU letter.
SENATOR DYSON commented that Ms. Rudinger has been a friend
that has provided valuable input over the past few years.
In her letter she mentions several times that the ACLU
needs time to further analyze SB 385. She said she would
like to see it made clear that the committee has power to
request information from the governor. Senator Dyson said
he asked Mr. Liebersbach if he could conceive of any
information the governor might not want to hand over to the
oversight committee and he said no.
SENATOR DYSON proposed that on page 5, line 3, the words
"the governor" be inserted right after (2), so that it
would read:
(2) the governor, other agencies or persons...
CHAIR SEEKINS suggested adding "the governor" immediately
after (1) on the same page, line 1, instead.
SENATOR DYSON questioned whether the Alaska division of
homeland security includes the Department of Public Safety.
MR. LIEBERSBACH said it does not.
CHAIR SEEKINS suggested adding DPS and said he would feel
more comfortable if DPS was also responsive to the
committee.
MR. LIEBERSBACH noted that DPS would be included under
"other agencies" in subsection 2, as would DOTPF, DHSS, and
DEC.
TAPE 04-48, SIDE B
CHAIR SEEKINS asked members if adding "the governor" before
"the Alaska division of homeland security" [Page 5, line 1]
would address the concern [Amendment 3].
SENATOR THERRIAULT moved to adopt Amendment 3.
SENATOR DYSON informed members that he is attempting to get
an answer to the question of what restrictions and
additional authorities state and federal governments are
provided with under an emergency declaration. He said he
believes the government can hold and seize people for
limited periods of time without taking them before a
magistrate within a certain number of hours. He said he is
eager that this bill get to the House soon because of the
late date in the session but he will do everything he can
to get that information in writing for all senators before
this bill gets to the Senate floor.
SENATOR OGAN expressed concern that SB 385 will give the
governor the authority to waive due process and probable
cause for seizure of property and arrests. He added:
The concerns I've heard - Don Young came to talk
to our majority and he talked about the guy who
was arrested for having [indisc.]. He was a U.S.
citizen. He was detained and he wasn't given any
due process and locked up for six or eight months
or whatever - no trial and all that and heck,
there's probably a couple thousand Alaskans out
there that have eight pounds of powder and, you
know, they're good, red-blooded patriotic guys
who'd probably be volunteering for the state
militia if we needed them. It'd be good to have
them if they've got that much powder and that
many guns. So if there's a way to put some kind
of a circuit breaker in there that - okay, we're
going to suspend this due process or that
probable cause thing for awhile because of this
emergency but make sure that due process is
afforded to them that they just can't - if they
seize your property under this type of a thing,
that you have the due process in the court to say
wait a minute, the seizure was out of line, or
they have the ability to go before a judge to
make sure their due process rights are protected.
I haven't had time to analyze the CS to make sure
those things are covered or if we want to
specifically bring those things up so...
SENATOR DYSON responded that it is his understanding that
all of these powers already exist; SB 385 only expands that
authority under the credible threat of an imminent attack.
That does not remove his concerns about the existing power
these agencies have and he feels their existing power is a
legitimate concern. He repeated that he would get that
information for committee members. Second, this bill
requires the agency to pay reasonable rent for any property
seized, such as a front-end loader to build a roadblock. He
said he likes the fact that the legislature can call itself
into session and stop what the governor is doing because
that could place a significant limit on the governor's
ability to supersede individual rights.
CHAIR SEEKINS said he is comfortable that SB 385 does not
expand those powers but agreed it is important to find out
what they are in terms of the federal authorization.
SENATOR ELLIS referred to section 10 on page 15, traffic
control, and said he perceives that as an expansion of
power. He pointed out that in other parts of the country,
roadblocks and traffic checkpoints for criminal activity
like drunk driving have been very controversial. He was
unsure whether the Alaska Supreme Court has ruled on that
activity in Alaska. He said he understands that traffic
control after a natural disaster or a terrorist attack
would be a matter course, but it makes him anxious that
roadblocks could be established for the reason of a
perceived threat. He asked Senator Dyson to speak to what
would be allowed in that situation.
SENATOR DYSON said roadblocks were set up on the road into
Valdez over the holidays because of the threat. SB 385
would give the state agencies authority to do what they
did. It is his understanding that DPS and DOTPF are very
concerned about that issue, and the provision in the bill
is a compromise.
SENATOR ELLIS asked if this provision would allow that to
happen in the general vicinity or whether roadblocks could
be set up all over the state.
SENATOR DYSON guessed that would depend on the nature of
the threat.
MR. LIEBERSBACH answered that the authority to set up
checkpoints and close roads is already in statute and rests
with DPS and DOTPF. All SB 385 says is the division of
homeland security has the authority to work with those
departments. When the checkpoints were set up on the road
to Valdez, DPS did not have the staff to do the job so
National Guard personnel were used; however, DMVA does not
have that authority. He said the actions taken would be
specific to the threat and the only reason DMVA would do
anything on a large-scale is because the state is large. If
the threat were to oil field facilities, DMVA would want to
put a checkpoint on the Dalton Highway, which covers a
large area, as well as to the Valdez terminal.
CHAIR SEEKINS asked if checkpoints have already been set up
along the Dalton Highway.
MR. LIEBERSBACH said they were, right after 9/11, as well
as over the holidays because a general threat was made at
that time.
SENATOR OGAN said he would be more comfortable with Section
10 if the word "illegal" was added to page 16, line 5,
before the word "weapons" [Amendment 4].
CHAIR SEEKINS asked what would happen if a person had a
trunk full of legal weapons.
SENATOR OGAN said that a trooper would have to find
probable cause that the vehicle occupants intended to
engage in criminal activity. He then moved to adopt
Amendment 4.
SENATOR DYSON commented that the state just went through an
expensive exercise to prove that a 338 Winchester will
puncture the pipeline. So, if there is a credible threat on
the pipeline and a person is driving through with a weapon
that is capable of puncturing the pipeline, it would be
important to give agency staff the authority to deal with
that weapon.
CHAIR SEEKINS asked Lt. Storey if DPS has the authority to
put up roadblocks or close roads right now.
LT. AL STOREY, Alaska State Troopers (AST), said that
authority actually lies with DOTPF.
CHAIR SEEKINS asked if SB 385 expands that authority or if
it is a sharing of that authority in coordination with the
division of homeland security.
LT. STOREY said there is some authority that falls to DPS
under common law because DPS can close roads in
extraordinary circumstances for short periods of time. He
deferred to an attorney to answer whether SB 385 expands
that authority.
SENATOR ELLIS noted that fertilizer and diesel fuel are
legal; however they would be highly suspicious in the same
truck together.
SENATOR OGAN said he would interpret legal weapons to mean
weapons used for personal protection - guns. He noted that
Section 10 also speaks to explosives, chemicals, biological
agents or other instruments capable of causing widespread
or severe injury. He said his intent with Amendment 4 is
that it apply to weapons used for personal protection.
9:20 a.m.
LT. STOREY said the term "illegal weapons" is a quasi-legal
term. He reads that term to mean weapons that have been
altered or weapons that have been made fully automatic when
they're not supposed to be. He said the hope of Section 10
was that the troopers could be looking for any weapon that
could be used for illegal purposes inside the contained
area. As the team leader of the Valdez checkpoints, it was
everyone's hope to keep all weapons out of the area they
were protecting. Therefore, had a person arrived at a
checkpoint with weapons, they would have been denied access
to the area and would have turned around. He said DPS
worked with DMVA on this language; it will not violate
people's constitutional rights.
SENATOR FRENCH asked if the checkpoints would be set up in
conjunction with a finding under Section 9, only after the
credible threat has been certified.
LT. STOREY deferred to DMVA but said that is DMVA's hope in
this process. Once a threat is determined to be credible,
the protocol to set up checkpoints and barriers would kick
in.
SENATOR FRENCH noted that the pipeline parallels the Haul
Road as well as vast stretches of the Alaska Highway, which
could present an entirely different situation than Valdez,
and cause major disruptions for people. He believes most
people could understand the restriction if this applies
only for 30 days, but he said he would not be comfortable
with Section 10 unless it requires a certification first.
He suggested tying Section 10 back to Section 9(c).
SENATOR OGAN stated that he disagrees with the philosophy
that all weapons need to be banned from an area. He noted
that any gun could cause severe injury to a person (page
16, line 70) so that language could turn any Alaskan into a
terrorist.
SENATOR THERRIAULT noted that a lot of people live along
the Richardson Highway to Valdez. He questioned if there
was an allegation that someone was going to use a high-
powered rifle to shoot a hole in the pipeline, what would
be done about the people who live along the highway. He
thought Amendment 4 is reasonable because guns are
prevalent in Alaska society.
LT. STOREY said that would only happen when the governor
determines a sufficiently high threat of attack.
CHAIR SEEKINS asked for the definition of an illegal
weapon.
LT. STOREY said his interpretation of an illegal weapon is
perhaps a shotgun with the barrel cut off, or one that's
been converted into a fully automatic weapon. He maintained
that term does not fit well in the bill.
SENATOR OGAN suggested deleting the word "or" on line 7,
page 16 instead, so that it reads weapons, etcetera,
capable of "causing widespread, severe injury...." He felt
that would exclude the average Alaskan.
MR. LIEBERSBACH informed members that the troopers could
not seize weapons. Staff would be looking for people with
weapons who might be of concern.
CHAIR SEEKINS noted that inserting the word "illegal" would
keep the troopers from searching every vehicle that comes
through a roadblock so it will not harm the intent of the
bill.
MR. LIEBERSBACH agreed and felt the deletion of the word
"or," suggested by Senator Ogan would do no harm either.
SENATOR OGAN disagreed that the troopers would not be able
to seize weapons because the language on page 14, line 11,
reads:
To seize, take, or condemn property if, and only
to the extent that, the governor determines that
the property is needed for the protection of the
public
Therefore, the troopers could seize guns in the name of
public protection.
CHAIR SEEKINS said he reads that to mean if the troopers
needed his rifle to shoot at the enemy, they would take it.
SENATOR DYSON noted the definition of "illegal weapons"
might change, depending on whether President Bush signs the
extension of the assault weapons ban.
CHAIR SEEKINS asked Senator Ogan if his intent was to
withdraw Amendment 4 or to amend it.
SENATOR OGAN moved to amend Amendment 4 to drop the word
"or" between the words "widespread" and "severe" on page
16, line 7. He then said, "The intent is that ordinary
citizens for protection of themselves can still carry
weapons but if they have enough weapons and enough
firepower to cause widespread severe injury to persons or
property, then that's a good reason to turn them back at a
checkpoint."
CHAIR SEEKINS noted that without objection, Amendment 4 as
amended was adopted. He then announced an at-ease.
TAPE 04-49, SIDE A
CHAIR SEEKINS announced the committee would take public
testimony.
MR. JIM BUTLER, an attorney from Kenai, told members he
works primarily in the area of incident management and that
he appreciated hearing the committee debate some of the
perplexing issues surrounding homeland security and
creating checks and balances within that system. He asked
to offer some general ideas to help streamline the overall
size of the legislation. He stated:
When the committee continues to look at the issue
of oversight, it might want to take a look at
[AS] 26.23.025, which currently defines the
relationship between the legislature and disaster
emergency. It seems like it provides a tool for
the legislature to have oversight and, perhaps,
without having to go through the whole issue of
security clearances for legislators and perhaps
staff who get involved. It might streamline that
process.
The other is the issue related to, in general,
the role of where a local jurisdiction fits into
the equation. I understand from the bill that
there's a requirement for the homeland security
component of the new division, as well as the
emergency management component, to have plans
that the locals would be involved. I can tell you
from experience that the general approach today
is that most local emergencies are managed on a
local level first but the state provides support.
That support is typically coordination and
funding and so I think one of the things to be
aware of is as we start to talk about the state
and the role of emergency management, as opposed
to emergency services, there'd be [sic] the risk
of having some confusion about whether they'd
provide coordination or whether they'd actually
show up and provide management responsibility on
the ground.
I also think that if the committee has the
opportunity - I don't know if it's something that
they've had background on - for the committee to
look at the Administrative Order 170, which was
promulgated several years ago and talks about the
state developing an emergency management system
and you might want to consider how that fits in.
I understand Mr. Chairman and the committee that
you're probably getting short on time. There'll
be some other opportunities to look at this as it
moves through so I'll cut my comments there and I
appreciate the opportunity to testify.
MR. DAVID GIBBS, the emergency manager at the Kenai
Peninsula Borough, told members that many of his concerns
echo Mr. Butler's concerns. SB 385 is a substantial rewrite
of the Alaska Disaster Act, which, in his view, changes the
responsibilities of local jurisdictions. SB 385 essentially
gives the new Department of Homeland Security substantial
new powers, some of which are vague. He drew attention to
the language on page 10, line 17-20, and expressed concern
that language is vague. He questioned whether "information"
refers to memos, faxes, e-mail messages and felt a clearer
definition is necessary. He also felt the bill should
define the authority of the new Department of Homeland
Security for the sake of those working in the field of
emergency management.
CHAIR SEEKINS thanked both participants and closed public
testimony.
SENATOR FRENCH told members his lingering concern is with
the traffic control section of the bill and he asked to
hear from a representative from the Department of Law to
get more information about the circumstances under which
roadblocks could be set up and the steps the government
would have to go through before some of these powers can be
exercised. He then said that unless he hears otherwise, his
desire to link the establishments of roadblocks,
particularly on areas like the Richardson or Dalton
Highways that are used regularly, to the declaration of a
credible threat of imminent danger in Section 9.
CHAIR SEEKINS asked Mr. Liebersbach to comment on the
question of emergency coordination versus management.
MR. LIEBERSBACH responded that it's all the same to him.
The laws of the state clearly put the responsibility and
authority to manage disasters and emergencies at the local
level. DMVA has no desire to take that on at the state
level. During disasters and emergencies, it sits as a
support, unless no local government exists in an area but,
even in those cases, DMVA works with a local tribal council
or entity. DMVA is not a first-responder organization.
Regarding the change in the name from emergency services to
management, he said that term is used by almost all states
in the country. He clarified that SB 385 will not create a
new department; it will create a division of homeland
security within DMVA. Currently, two divisions have been
established: the division of emergency services and EO 203
established the division of homeland security and the
office of homeland security and emergency services. SB 385
will eliminate that office and collapse the two divisions
into one division, which is how things are operating now.
Instead of having an assistant commissioner and two
division directors, DMVA will have one division director.
The name change from the division of emergency services to
the division of homeland security and emergency management
is necessary because of the heightened visibility of
homeland security, which the state's federal partners
expect to see from all of the states.
CHAIR SEEKINS said, in response to Senator French's
concern, subparagraph (2) on page 15, line 30, says the new
department in coordination with DPS and DOTPF can establish
and operate checkpoints for roadways that serve critical
property or facilities when the governor determines that a
sufficiently high threat of attack exists. He asked if the
committee wants the procedure in Section 9 to be in effect
to establish roadblocks, i.e. coordination between the
governor and the commissioners of the two departments or
whether the governor should have the singular ability to
establish those checkpoints. He then elaborated that his
question is whether to allow the governor to establish
checkpoints at a lower level where there is a sufficiently
high threat of a terrorist attack or whether the governor
should have to meet the standard of a credible threat of
imminent enemy or terrorist attack. He said personally, he
has no problem allowing the governor to establish a
checkpoint for a reasonable period of time leading up to
the establishment of a credible threat.
SENATOR OGAN thought the committee had gone a long way in
putting sideboards and checks and balances on the bill. He
thought the public would be howling if it believed the
governor was going beyond what was reasonable and the
legislature could call itself into special session.
CHAIR SEEKINS moved to insert on page 16, line 1, between
"of" and "attack" "enemy or terrorist" [Amendment 5].
SENATOR FRENCH objected for the purpose of discussion. He
said although he doesn't have any particular "beef" with
Amendment 5, it does not address his concern about tying
the establishment of roadblocks back to emergency powers
granted in Section 9. He said the governor could,
singularly, have his agents set up roadblocks for unlimited
duration under the bill. He then withdrew his objection.
CHAIR SEEKINS announced that Amendment 5 was adopted. He
then asked if the committee wanted to tie the traffic
control provision into any timeframe.
SENATOR OGAN asked if the checkpoints could be established
only when the emergency powers are invoked.
CHAIR SEEKINS clarified no, the governor could establish
checkpoints prior to invoking emergency powers. He
envisioned the governor establishing those checkpoints as a
first step.
SENATOR FRENCH noted that police officers operating under
probable cause can set up roadblocks right now, and that is
done all of the time when an assault or bank robbery
happens. Therefore, DPS is not prohibited now from throwing
up a roadblock if it believes someone could be endangering
others. He said his intent is to put some sideboards on the
governor's abilities within the framework of this bill.
CHAIR SEEKINS said he has no problem leaving Section 10 as is as
it will provide an early check and offer an interim step.
SENATOR ELLIS asked if that question could be held open for a
day.
CHAIR SEEKINS noted that he planned to recess the meeting until
5:30 p.m., at which time the committee could revisit the
question.
SENATOR THERRIAULT brought up that when he spoke with Senator
Dyson about the oversight committee, he had envisioned a
subcommittee, however, SB 385 would create an entirely new
committee and he is not sure that is warranted. He said at
present, Representative Harris and Senator Wilken are the co-
chairs of the Joint Armed Services Committee (JASC) and Senator
Guess and Representative Joule are the minority members so they
would be four of the six members of the oversight committee,
according to the membership list in SB 385. Senator Dyson also
sits on the JASC and is the Senate Finance subcommittee chair
for the DMVA. He noted that since one member could fill two
seats, the committee could be comprised of five people, yet the
quorum is rigidly established at four members. In addition, on
page 3, lines 13-17 of SB 385, when a member files a declaration
of candidacy for an elected office other than the legislature,
that member's membership on the committee would be terminated.
He felt it is unnecessary to force a member to vacate a seat
until s/he is actually elected to another office. He suggested
structuring the oversight committee as a subcommittee of the
JASC to avoid creating a new committee and looking at some small
changes to make the subcommittee administratively workable.
SENATOR DYSON thanked Senator Therriault for his excellent
comments and offered to try to work those things out before the
evening meeting.
CHAIR SEEKINS announced a recess until 5:30 p.m.
TAPE 04-50, SIDE A
CHAIR SEEKINS reconvened the Senate Judiciary Committee hearing
at 5:08 p.m. Senators Ogan, French, and Chair Seekins were
present.
CHAIR SEEKINS announced, for the record, that the committee had
been working on version Q of HB 83 during the morning meeting
and, for the purpose of clarification, asked for a motion to
adopt version Q as the version that passed out of the committee.
SENATOR OGAN moved to adopt version Q of HB 83. With no
objection, the motion carried.
CHAIR SEEKINS announced the committee would resume its
discussion on SB 385. He said the committee had adopted five
amendments to SB 385 so far and has before it a conceptual
amendment [Amendment 6], which Senator Dyson indicated applies
to Section 2.
SENATOR DYSON asked that the committee consider Amendment 7
first.
CHAIR SEEKINS moved to adopt Amendment 7, which reads as
follows:
A M E N D M E N T 7
OFFERED IN THE SENATE
TO: CSSB 385(HES) (Version I)
Page 9, line 8
Delete "cooperate"
Insert "coordinate"
Page 9, lines 12-18:
Delete "and the incidents thereof; and in this
connection [TO] take any measures that
(A) it considers proper to carry into effect a
request of the president and the appropriate
federal officers and agencies for action
pertaining [LOOKING] to homeland security
and civil defense; and
(B) are authorized under this chapter and the
Constitutions of the United States and the
State of Alaska [,
Insert "[AND THE INCIDENTS THEREOF; AND IN THIS CONNECTION
TO TAKE ANY MEASURES THAT IT CONSIDERS PROPER TO CARRY INTO
EFFECT A REQUEST OF THE PRESIDENT AND THE APPROPRIATE FEDERAL
OFFICERS AND AGENCIES FOR ACTION LOOKING TO CIVIL DEFENSE,"
SENATOR FRENCH objected for the purpose of discussion.
SENATOR DYSON said the division of homeland security wrote this
amendment and that it takes care of several issues that the committee
discussed. On page 9, line 8, replacing the word "cooperate" with the
word "coordinate" will alleviate the fear that the state would be
forced to do anything under federal rule that it is not comfortable
with. The deletion of the entire phrase "take any measures" on lines
12-18 will not dilute what the division wants to do but removes a
phrase of great consternation to several committee members.
MR. LIEBERSBACH explained that the inserted material at the bottom of
Amendment 7 would actually delete language that is currently in
statute.
SENATOR FRENCH withdrew his objection therefore Amendment 7 was
adopted.
CHAIR SEEKINS moved to adopt Amendment 6, which reads as follows:
A M E N D M E N T 6
Conceptually, change from formation of a new joint standing
interim committee into a Homeland Security and Emergency
Management Subcommittee of the Joint Armed Services
Committee. In this transition, accomplish the following:
(A) Page 2, line 16, delete "six" and insert "four to six"
(B) Page 3, lines 13-17, change termination of membership to be
tied to time of leaving legislative office.
(C) Page 3, lines 18-23, delete "Vacancy" section. Vacancies to
be filled as slots defined under AS 24.20.810 are filled.
(D) Page 3 lines 24-27, delete "Travel and Per Diem" section.
This is already covered for the Joint Armed Services
Committee.
(E) Page 3, line 28, change quorum to three instead of four
members.
(F) Page 4, lines 4-6, delete "Staff" section. This is already
covered for the Joint Armed Services Committee.
SENATOR DYSON informed members that Amendment 6 should be moved as a
conceptual amendment to take care of the issues raised by Senator
Therriault about the oversight committee. He explained that amendment
6 will:
· clarify that the committee is a subcommittee of the JASC
· change the subcommittee membership to four to six members
· disqualify members when a legislator leaves office rather than
when a legislator files for another office
· delete the vacancy section, which is already covered in law
· delete the travel and per diem provision because that is covered
under the JASC
· change the quorum requirement to three members, anticipating
that the committee will not always have six members
· delete the staff provision because JASC staff will serve as the
subcommittee staff
SENATOR FRENCH questioned whether the quorum requirement should read
half of the members plus one.
CHAIR SEEKINS maintained that a quorum can be established at any
number.
SENATOR DYSON felt Senator French's suggestion was a good idea. He
added that he envisions the subcommittee to act as an oversight
committee, not a decision-making committee.
Members discussed the quorum issue. CHAIR SEEKINS noted that
according to Mason's Manual [Sec. 502], a quorum constitutes a
majority of all those entitled to vote and that every member entitled
to vote should be counted in determining whether a quorum is present,
but members disqualified on account of interest from voting on any
question cannot be counted for the purpose of making a quorum to act
on that question.
SENATOR OGAN questioned how Amendment 6 would change the committee
from an interim committee to a subcommittee.
CHAIR SEEKINS referred to the language on page 2, lines 6-10 of
version I, and noted the permanent interim committee of the
legislature would be change to a subcommittee of the JASC. He then
pointed out that the bill could say that a quorum is defined as a
majority of the members of the subcommittee and that would comply
with Mason's Manual.
SENATOR FRENCH moved to amend Amendment 6 so that it replaces the
language in subsection (a) on page 3, lines 28-29, with, "A majority
of the members of the committee constitutes a quorum."
CHAIR SEEKINS announced that without objection, Amendment 6 was
amended. He asked if the JASC staff would need the same security
clearance as the subcommittee members.
SENATOR DYSON was unsure.
CHAIR SEEKINS suggested incorporating that requirement in subsection
(b) on page 2, beginning at line 28, of version I.
SENATOR DYSON suggested leaving the staff section in the bill and
changing the language on page 4, line 4, to say DMVA staff will staff
the subcommittee and be subject to the same security and
confidentiality requirements as the subcommittee members.
CHAIR SEEKINS noted that staff members should provide the
subcommittee with professional and clerical assistance under the
auspices of the JASC and be required to have the same clearances as
the members.
SENATOR OGAN moved Senator Dyson and Chair Seekins' suggested
language as [another] amendment to Amendment 6. Without objection,
Amendment 6 was again amended.
SENATOR DYSON distributed copies of Administrative Orders 203 and 170
and said that AO 203 reorganized the divisions in DMVA and that SB
385 codifies those changes in statute.
MR. LIEBERSBACH agreed, but noted a few changes. He said AO 203
consolidated two divisions into one and eliminated the department of
homeland security management, as well an assistant commissioner
position and a division director position. Those changes saved a few
hundred thousand dollars in the 2005 budget.
SENATOR FRENCH told members that he spoke to Mr. Guaneli about
Section 10 and asked that he address the committee.
MR. DEAN GUANELI, Criminal Division, Department of Law, told members
that DOL spent a good deal of time on this section when drafting the
bill. DOL believes that Section 10 represents a fair and balanced
approach to providing security for critical infrastructure in the
state and protecting the rights of citizens. He said that DOL hopes
that a declaration of emergency by the governor will be very, very
rare. Making the standard a "credible threat of an imminent attack"
means an attack is highly probable. However, there will be situations
where a heightened threat to security will exist but will not rise to
the level of an emergency declaration. Because of the importance of
critical infrastructure in the state and the perceived need to
protect that infrastructure, some additional level of protection is
deserved. He stated:
After 9/11, the airports were shut down and, by and large,
there weren't planes flying. I think that some of those
measures can be put into place to guard against aircraft
but really the movement of vehicles on our roads is
something that happens regularly and it seems like a fairly
measured response to set up checkpoints to limit a road to
commercial traffic or residential traffic to stop weapons,
to stop explosives, to stop chemical agents that might
cause widespread damage to the public or to infrastructure.
As you recall, the Alaska pipeline was pierced by a single
bullet from a high-powered rifle so there are situations
that are dangerous to the pipeline. It's a big target and,
frankly, I think it's an inviting target to some people and
this is a fairly measured response. What was intended was
instead of the decision to set up these checkpoints being
made simply by the department, that the governor intervene
and the governor make a decision that a sufficiently high
level of threat exists and so it's really the governor's
directive and not any single department - and what we think
is mid-ground between declaring an emergency that might
cause some reaction with the public and the imposition of
extraordinary powers. So that's how we got to this draft.
I have advised the Department of Public Safety that when
these kinds of checkpoints are set up, there are going to
be certain procedures that really have to be followed -
have to be followed just in terms of public reaction to a
checkpoint and, in terms of the legal challenge, one of
those is some warning to the public. There are probably
going to have to be signs put up a quarter mile away or a
half-mile away saying you are coming to a checkpoint, the
road is closed to commercial traffic - something like that
- no explosives, no weapons are allowed, you know, that
gives people the opportunity to turn around, gives them
fair warning of what is up ahead.
SENATOR OGAN informed Mr. Guaneli that the committee modified the
bill so that a person can carry a weapon as long as that weapon is
not capable of causing widespread severe injury, with the specific
intent of allowing Alaskans to carry personal protection weapons.
MR. GUANELI said he was aware of the change and believes it is
appropriate. He said that DOL tried to come up with a measured and
responsible response without locking the departments into detailed,
operational logistics that probably will need to be taken up on a
case-by-case basis.
SENATOR FRENCH said his concern is that checkpoints not be a place
where local citizens are harassed. He said if government agencies are
allowed to conduct reasonable inspections of persons and vehicles for
weapons, the agencies could be looking for something the size of a
brick, which would require a fairly invasive search. He proposed, as
a conceptual amendment [Amendment 8], including language to make sure
that the focus at the checkpoint be on the people who pass through
and not on those who turn back so that the fact that a person turned
around could not be considered as probable cause for a search.
MR. GUANELI said DOL would have no objection to that if appropriate
language can be found. He said the law for sobriety checkpoints in
other states is that people must be given fair warning and they must
be allowed to turn around without being targeted. He offered to find
the correct wording for such an amendment.
SENATOR OGAN thought that would protect a person's right against
unreasonable search and seizure.
SENATOR FRENCH pointed out that the mayor {of Anchorage] decided to
close a road on Government Hill and residents were very unhappy about
being prevented from taking quick short-cuts out of their
neighborhoods. He added that there is a political aspect to closing
roads because the governor will take the heat if people feel
unnecessarily inconvenienced by a checkpoint.
SENATOR FRENCH clarified that the conceptual amendment [Amendment 8]
would add on page 16, line 5, language so that those people, after
consideration, entering a checkpoint are subject to reasonable
inspection.
CHAIR SEEKINS announced that without objection, Amendment 8 was
adopted.
SENATOR OGAN noted he is proud to serve on this committee. He then
moved CSSB 385(JUD) out of committee with individual recommendations
and its zero fiscal note. He noted his assumption that the conceptual
amendments would be reviewed by the committee after drafting for
accuracy of intent.
Without objection, CHAIR SEEKINS announced the motion carried.
CSHB 56(L&C)-UNFAIR TRADE PRACTICES ATTY FEES/COSTS
REPRESENTATIVE LES GARA, sponsor of HB 56, told members that this
legislation has been around for awhile and originated with
legislation co-sponsored by Senator Dyson and Representative Croft in
1997. He advised that Alaska has the smallest consumer protection
department of any state. That section was comprised of a staff of
about 10 people in the attorney general's office and is now comprised
of three half-time attorneys and one investigator. In the mid-1990s,
he and others looked at ways to bolster consumer protection in Alaska
without costing the state money and the group came up with the
approach in HB 56. The legislation will fund consumer protection, in
part, by charging the people who engage in bad behavior. He explained
that the prevailing party in a lawsuit is entitled to Rule 82 fees
and costs, which amounts to about 20 percent of attorney fees and a
small portion of costs. He said what the government has done, as a
matter of public policy in areas that are historically under funded,
is to fund enforcement costs in those areas by charging the people
who engage in the bad conduct.
He noted the guts of HB 56, on page 1, lines 5-9, say if the attorney
general's office prevails in a consumer case, the party that engaged
in the bad conduct should reimburse the state's reasonable attorney
fees and costs of the investigation. The federal government uses that
approach in federal anti-trust and hazardous waste cases. He said the
consumer protection cases the attorney general's office gets run the
gamut. He believes that if HB 56 passes, consumer protection cases
will become a revenue generator, possibly justifying more staff.
SENATOR OGAN characterized HB 56 as a "we tax the bad guy and pass
the savings on to you" bill.
CHAIR SEEKINS asked what the defendant would get if he prevailed.
REPRESENTATIVE GARA said Rule 82 would apply.
CHAIR SEEKINS asked why the defendant wouldn't have the same right
[for full reimbursement] as the state.
REPRESENTATIVE GARA said that could be done but doing so would
require a fiscal note. He indicated that from an enforcement aspect,
these cases, which involve very bad conduct, are not being resolved.
The policy argument is that when the state loses a case, it is not
because the state committed fraud. However, a defendant who loses a
case did so because of fraudulent behavior. Therefore, the state
should not be penalized as harshly as a defendant when it loses. He
said if the state filed a bad faith case, court rules would allow the
other party to get full fees reimbursed by the state. He said he does
not believe the legislature wants to open up the state's purse to
reimburse full attorney's fees anytime the state doesn't win, because
its conduct is not as bad as the conduct of someone who committed
fraud. He acknowledged that is a policy call for the legislature to
make.
CHAIR SEEKINS noted that several years ago, a consumer protection
assistant attorney general went on huge fishing expeditions with
Alaska Sales and Service. He does not believe the company was ever
convicted of anything. He asked had the company been charged with 20
counts and then settled on one count, whether the state would be
reimbursed for a costly investigation.
REPRESENTATIVE GARA said it would not. He explained:
In a settlement it would work like the marketplace. I mean
you, as Alaska Sales and Service, would say - you know, you
got us on one claim. The other 19 are bogus. If we go to
trial, the court's not going to give you the cost of an
investigation for those 19 bogus claims so you can keep
fighting us and you keep running up your bill, it's just
going to cost you. So, I don't think that would make its
way into the settlement. The state could ask for it but the
guy at Alaska Sales and Service is going to say no way, not
a chance.
CHAIR SEEKINS agreed that many of the cases brought by the attorney
general's office regarding consumer protection are very egregious but
he has a natural aversion to saying what's good for the goose isn't
good for the gander. He wondered about the risk faced by a defendant
taking a case to court compared to the state's risk.
REPRESENTATIVE GARA said that is a fair concern.
CHAIR SEEKINS asked about Rule 82.
TAPE 04-50, SIDE B
REPRESENTATIVE GARA said Rule 82 is "20 percent of fair and
reasonable. It is a schedule but it's partial..."
CHAIR SEEKINS asked if the only exception occurs if the court rules
that a case was frivolous.
REPRESENTATIVE GARA said that is correct - reimbursement is at 100
percent if a case is ruled to be frivolous; anything else is
reimbursed at 10 to 20 percent of what is considered to be fair and
reasonable.
CHAIR SEEKINS asked if the court often determines that a person spent
more than a reasonable amount.
REPRESENTATIVE GARA said it does. He noted that the bill says a
person gets reimbursed for full, reasonable attorney fees so that if
those fees are unreasonable, they don't get any reimbursement. That
is to prevent the attorney general's office from padding its bill.
CHAIR SEEKINS asked who determines what is reasonable.
REPRESENTATIVE GARA said the judge does.
SENATOR FRENCH moved CSHB 56(L&C) from committee with its attached
indeterminate fiscal note.
CHAIR SEEKINS noted that Senator Dyson wanted to testify on the bill.
SENATOR FRED DYSON told members that the attorney fee provision was
part of his and Representative Croft's original bill but the House
Judiciary Committee stripped it out. The bill went forward with the
part that allows private attorneys to capture their costs if they are
successful. He clarified:
It was kind of a new deal for me and it was, in fact, the
very circumstance where Representative Gara and I began a
relationship and we ran into lots of situations where
people were being taken advantage of. We had guys that were
going to resurface your driveway, and we had the blue tarp
roofing company from Mat-Su that were taking advantage of
folks and the state didn't have the horsepower to do it and
a private attorney couldn't afford to do it because there
wasn't a way for him to recapture his costs and [indisc.] a
few hundred, a few thousand bucks, and I've had more than
once, and probably a half-dozen times in the ensuing six or
seven years, somebody's come up and said hey, what you guys
did really worked because now we've got people who can
afford to go after these bunko artists that are out there
and nail them. So I'm really pleased to have Representative
Gara come along and picking up the pieces that got knocked
out of this original piece of legislation. So it really
tickles me and I think it will work....
CHAIR SEEKINS repeated his only concern is the possibility of a
"scoundrel" assistant attorney general in that division. He noted an
overzealous assistant attorney general can also do a lot of damage to
the business community and the public trust.
SENATOR FRENCH repeated his motion to move CSHB 56(L&C) from
committee. With no objection, the motion carried.
CHAIR SEEKINS announced an at-ease from 6:00 to 6:05 p.m.
HCR 29am-SUPPORT THERAPEUTIC COURTS
MR. JOHN BITTNER, staff to Representative Cheryl Heinze, sponsor of
HCR 29, gave the following summary of the resolution.
Alcoholism in Alaska is a serious and immediate problem.
Conventional methods of dealing with repeat offenders under
the influence of alcohol are not effective and are
prohibitively expensive. Alcoholism is a mental as well as
a physical disease and it needs to be treated as such if we
are to have any hope of rehabilitating people with drug and
alcohol problems effectively and with the minimum burden to
the state and its citizens.
The daily cost of the wellness court is about $22 a day,
which works out to around $11,000 over the 18-month
treatment period. Out of this the state pays around $6,100
on average. The rest of the cost is paid for by the person
receiving treatment. The average cost of traditional
incarceration is over $60,000 for 18 months, or roughly
$113 per day. Traditionally, alcoholics who are
incarcerated tend not to receive effective treatment for
their addictions while they are in jail. While the percent
of alcohol and drug abusers who have been incarcerated and
subsequently rearrested after their release is somewhere
around 67 percent nationwide, the percentage of wellness
court graduates rearrested after their release is around 25
percent.
This disparity in success rate is attributed to the use of
maltrexon, a drug that inhibits alcohol cravings, coupled
with community based treatment programs and cognitive
behavioral therapy. People with substance abuse problems
aren't going to be helped by locking them away with few, if
any, treatment options and then releasing them after they
have served their time. The best way we have of treating
people with addictions is the therapeutic courts.
HCR 29 asks the legislature to show its support for
therapeutic courts and reducing DUI crimes. It also asks
the Department of Law and the Public Defender Agency to
actually participate in the start-up of therapeutic courts
in areas with high incidences of DUI offenders and local
support for therapeutic courts. They are effective,
inexpensive, and easy to implement. Thank you.
CHAIR SEEKINS asked if the legislature recently passed legislation
that extended funding for therapeutic courts.
SENATOR FRENCH said it passed legislation that extends the sunset
date of the therapeutic court to make sure the legislature gets a
final report before making a decision on whether to continue the
program.
CHAIR SEEKINS said he has heard no opposition to therapeutic courts.
SENATOR OGAN asked why specific communities for new therapeutic
courts are listed on page 2, line 5.
MR. BITTNER said he believes that Fairbanks and Ketchikan were
included because of their sizes. Juneau and several other cities
already have therapeutic courts or are actively establishing them.
The plan is to put the courts in areas with the highest incidence of
DUI crimes.
SENATOR OGAN said he was under the impression that the existing
therapeutic courts are a pilot program so it might be schizophrenic
for the legislature to support more of them before the report about
whether or not the program has been successful is completed. He
suggested requiring such a report before allowing new courts to be
established.
SENATOR ELLIS joined the committee.
SENATOR OGAN expressed concern that HCR 29am is inconsistent with the
legislature's prior actions.
CHAIR SEEKINS said the resolution would provide support but no
funding.
MS. JANET McCABE, speaking for Partners for Progress, stated support
for HCR 29am. She explained:
There are therapeutic courts at the Superior Court felony
level, and those are the ones that of course you recently
funded. Then there's Judge Wanamacher's court and the
courts at the misdemeanor level and Ketchikan has started
and is underway and Fairbanks is very interested and with
the court system's assistance, we are applying for a
national highway safety grant to fund those courts so I
hope that clarifies the finance question...
This resolution supports the development, particularly of
Fairbanks, Ketchikan, and Juneau, because those are places
that have been strongly interested and Juneau is underway -
and Ketchikan. And then it talks about other communities
where there's a large population of DUI offenders, and
where there's a lot of support for therapeutic courts. The
resolution asks the district attorneys, public defenders,
and relevant agencies to assist in therapeutic court
development and it notes that there are grant funds that
have been applied for these DUI courts through the National
Institute for Transportation Safety.
Regarding data, for the wellness court we now have three
years of solid data from Judge Wanamacher's wellness court
in Anchorage and this is data prepared and put together by
an impartial source, the University of Alaska, and it's
based on court records so it's not anecdotal. It shows that
therapeutic courts have been at least three times as
effective as incarceration in preventing repeat alcohol
crimes. Jailing alcoholic criminals is an expensive
revolving door. Seventy-five percent of repeat alcoholic
offenders get out of jail and reoffend again, and that also
is solid data.
Therapeutic courts stop this cycle by a process that Judge
Wanamacher describes as quote, getting the alcohol out of
the alcoholic. People spend 18 months in the court program
where they are required to be employed, they are monitored
for sobriety, they undergo intensive treatment, including
medical treatments - there's a medicine now that quells the
intense craving that alcohol addicts have for alcohol. They
are also required to visit the same judge repeatedly. They
are applauded for success or put back in jail for a relapse
for a few days. But basically, they're required to be
responsible for themselves and they're monitored while they
live successfully and work in the community. And when they
finish the 18-month program, they are truly changed people.
Our data shows that this is a lasting change.
Therapeutic courts save money and prevent public harm. We
urge you to pass this resolution, which encourages the
development of therapeutic courts where there is both the
need and a public interest.
CHAIR SEEKINS referred to the language on page 2, line 2, and page 1,
line 11, and suggested adding "for which federal funds are
available". He asked Mr. Bittner if the intent is to use federal
funds for the start-up of those programs.
MR. BITTNER said it is.
CHAIR SEEKINS noted that using federal funds for those projects would
be consistent with the legislature's intent for the pilot program.
SENATOR FRENCH pointed out that language pertaining to federal funds
is already included in the third "whereas" clause.
SENATOR OGAN moved HCR 29am from committee with individual
recommendations and its attached fiscal note.
CHAIR SEEKINS announced that without objection, the motion carried.
He then adjourned the meeting.
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