Legislature(2001 - 2002)
04/09/2002 01:34 PM Senate TRA
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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 TRANSPORTATION COMMITTEE
April 9, 2002
1:34 p.m.
MEMBERS PRESENT
Senator John Cowdery, Chair
Senator Jerry Ward, Vice Chair
Senator Robin Taylor
Senator Gary Wilken
Senator Kim Elton
MEMBERS ABSENT
All Members Present
COMMITTEE CALENDAR
SENATE BILL NO. 358
"An Act naming state ferries."
MOVED SB 358 OUT OF COMMITTEE
SPONSOR SUBSTITUTE FOR SENATE BILL NO. 100
"An Act relating to regulation and operation of electric personal
motor vehicles and to vehicle registration."
MOVED CSSSSB 100 (TRA) OUT OF COMMITTEE
HOUSE BILL NO. 405
"An Act relating to the prosecution of criminal offenses
committed on or against ferries and other watercraft owned or
operated by the state; and providing for an effective date."
MOVED HB 405 OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
SB 358 - No previous action to record.
SB 100 - See Transportation minutes dated 3/13/01.
HB 405 - No previous action to record.
WITNESS REGISTER
Kelly Huber
Staff to Senate President Rick Halford
State Capitol, Rm 111
Juneau, AK 99801-1182
POSITION STATEMENT: Testified for the sponsor of SB 358 and SSSB
100
Mr. Dennis Harris
PO Box 21214
Juneau, AK 99802
POSITION STATEMENT: Opposed to SB 100
Mr. Dennis Poshard
Department of Transportation &
Public Facilities
3132 Channel Dr.
Juneau, AK 99801-7898
POSITION STATEMENT: Stated no position on SB 100 but answered
questions.
Ms. Mary Marshburn
Division of Motor Vehicles
Department of Administration
PO Box 110200
Juneau, AK 99811-0200
POSITION STATEMENT: Discussed technical problems with SB 100
Representative Kevin Meyer
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Sponsor of HB 405
Ms. Anne Carpeneti
Department of Law
PO Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Supports HB 405
ACTION NARRATIVE
TAPE 02-14, SIDE A
CHAIRMAN JOHN COWDERY called the Senate Transportation Committee
meeting to order at 1:34 p.m. Present were Senator Ward, Senator
Elton, Senator Wilken and Chairman Cowdery. Senator Taylor
arrived at 1:39 p.m. The first order of business was SB 358,
followed by SB 100 and HB 405.
SB 358-NAMING STATE FERRIES
CHAIRMAN COWDERY said he did not know if members had an
opportunity to read the packet and noted that school children did
a good job writing essays for the contest. One winner of the
contest selected the name "Fairweather." Wesley Tyrrell's essay
contained a pretty good analogy. "Chenega" was the other winning
name. That ferry will be named after the Chenega Glacier. SB
358 is a piece of legislation to make those choices legal.
MS. KELLY HUBER, staff to Senate President Rick Halford,
explained the bill was introduced through the Senate Rules
Committee as a formality. Senate President Halford and House
Speaker Porter, as well as Lieutenant Governor Ulmer, judged the
contest. To make the process legal and name the next two ferries
on the production line "Fairweather" and "Chenega," a bill must
go through the legislative process and be signed by the Governor.
MS. HUBER informed the committee that many very good essays were
submitted. The essays were interesting and children from all
over the state participated.
CHAIRMAN COWDERY said he had a chance to read the essays and was
very impressed. He asked if there was anyone else to testify.
[No response.]
SENATOR WARD moved SB 358 from committee with individual
recommendations. There being no objection, the motion carried.
SB 100-PERSONAL MOTOR VEHICLES/ REGISTRATION
MS. KELLY HUBER, staff to Senator Halford, sponsor of SB 100,
informed members that a proposed committee substitute was in
members' packets. She noted the sponsor has requested that
members adopt the proposed committee substitute and that she
would address that version (Version L). She described the bill as
follows.
This bill was introduced because of new technology. A new device,
called the electric personal motor vehicle assistive device, was
unveiled in the fall of 2001. It is a clean fuel, quiet, upright,
two-wheel tandem device that can travel at 15 mph, that was
designed for use in pedestrian areas. Senator Halford introduced
this legislation to make sure that use of those vehicles is not
prohibited in certain areas and so that registration licensure is
not required. The proposed committee substitute addresses changes
in statute concerning farm and construction vehicles. That
provision was removed from Version L. Another provision that was
removed from Version L prohibited departments from writing
regulations concerning the assistive mobility device. The
departments will be able to write regulations but they cannot
prohibit use of the device. She said she believes the
Administration supports the legislation.
CHAIRMAN COWDERY asked if the legislation also applies to
electric wheelchairs.
MS. HUBER said she does not believe there are any problems
associated with electric wheelchairs right now. The sponsor
statement refers to wheelchairs as an example of an assistive
mobility device that is useful to senior citizens. She said the
sponsor wants the electric personal motor vehicle to be treated
similar to an electric wheelchair rather than any other type of
transportation.
CHAIRMAN COWDERY asked if the electric personal motor vehicle is
a two-wheeled vehicle.
MS. HUBER said it is and that the rider stands on it.
CHAIRMAN COWDERY noted the presence of Senator Taylor.
There being no further questions, SENATOR WARD moved to adopt
Version L of SSSB 100 as the working document of the committee.
CHAIRMAN COWDERY announced that without objection, Version L was
adopted.
SENATOR ELTON asked Ms. Huber if enactment of this bill would
preclude any municipality from regulating the use of these
devices on city sidewalks.
MS. HUBER said the bill does not contain a municipal exemption
area, based on the idea that this technology is new and there
will not be many of these devices on the streets for a while.
Should an issue arise later on, the matter can be addressed at
that time.
SENATOR ELTON said he hates to sound like the only conservative
in the room, but it seems to him that the legislature would not
want government to mandate rules until a problem arises. He
stated, "That almost seems backward to me - that you're saying
well, there may or may not be a problem but we're going to allow
it anyway." He said his concern is that negotiating the sidewalks
in downtown Juneau during the cruise ship season is difficult.
Juneau has banned the use of skateboards on sidewalks. The
electric personal motor vehicles travel five times faster than a
normal person walks and probably 10 times faster than a tourist
ambles through the community. He repeated that he is having a
difficult time with the concept that state government is going to
tell communities how to regulate traffic in highly congested
areas.
MS. HUBER responded that it is not that the sponsor disagrees,
but he does not foresee any problems at this time. She pointed
out that electric wheelchairs travel on sidewalks.
SENATOR ELTON said if, in fact, there is a problem,
municipalities will have to come to the legislature to request
that the statute be amended so that they can deal with the
problem.
CHAIRMAN COWDERY asked if the state has jurisdiction over
municipal rights-of-way.
SENATOR TAYLOR said it does. He asked if electric personal motor
vehicles could travel on bike paths and whether the sponsor would
object to a friendly amendment allowing snow machines to use the
bike paths also.
MS. HUBER said they would be allowed to travel on bike paths.
CHAIRMAN COWDERY took public testimony.
MR. DENNIS HARRIS informed members that he is very active in
Juneau's cycling community. He is very concerned about this
legislation for several reasons, one being that there are already
many conflicts on multiple-use paths. Those paths are already
congested, particularly sidewalks in downtown Juneau. He pointed
out there is a good reason why state law and most city codes
don't allow the use of bicycles on sidewalks by anyone over 12
years old - because bicycles move at a much greater speed than
pedestrians; the same reason skateboards are prohibited in a good
part of the downtown area of Juneau. Many elderly people with
osteoporosis fear bicycles and skateboards on sidewalks because
if they fall, their injuries are slow to heal. He said his
biggest concern about this bill is that the first orders will be
delivered to businesses such as UPS and FedEx for commercial use
in the next six months. The manufacturer does not expect them to
be in general use for at least two years and the manufacturer is
engaged in a giant lobbying effort across the country to exempt
these vehicles from regulation. He stated:
That's what this bill does and it's wrong. Quite
frankly, we should allow some experience with these
vehicles before we decide what kind of regulation to do
but in my opinion they should not be - this bill
essentially prohibits cities from prohibiting their use
on a sidewalk. I can just see the situation between
here and the Governor's Mansion on Calhoun Avenue - on
that very narrow sidewalk - where someone is trying to
zip along and get to work on their segue at 15 miles an
hour and it's crowded with pedestrians in the morning
trying to walk to work and there's heavy traffic in the
street. This is just not a good idea. I think we need
to wait and see what kind of experience we can have
with these vehicles.
MR. HARRIS said his other concern is that people are not aware of
the mass of these vehicles. They weigh 80 pounds and can travel
at 20 mph. The delivery devices will be set at 12.5 mph. He
expressed concern that the promotion of these devices has been
disingenuous because they are referred to as personal assistive
mobility devices, which sounds like something for use by the
handicapped. However, they will not work for many handicapped
people because passengers must stand to ride them. He also
expressed concern that this bill will take away local control
over these devices. He indicated that most bicycle paths and
pedestrian walkways alongside federal aid highways in Alaska were
financed by a federal law. Under that federal law, this bill
would not be legal because the federal law prohibits the use of
any kind of motorized device on a sidewalk or pedestrian way that
was built with federal aid dollars. He offered to submit the
correct citation to members.
CHAIRMAN COWDERY asked Mr. Harris to describe a multiple use
path.
MR. HARRIS said that multiple use paths were designed for non-
motorized use, which is what is stated in federal law. He added
that in doing research for a proposed Juneau ordinance to allow
the use of motorized skooters, he found they were prohibited by
the same federal law. He urged members to move slowly on this
legislation as it needs further research, particularly in the
pedestrian conflict area.
SENATOR TAYLOR pointed out that, according to the sponsor
statement, "the National Highway Traffic Safety Administration
ruled this device is not a motor vehicle and should not be under
their jurisdiction." He also pointed out that 12 states have
enacted similar legislation.
MR. HARRIS said as far as he is aware, the only activity at the
federal level regarding use of these devices is a bill sponsored
by Senator Bob Smith of New Hampshire. He said use of these
devices is still prohibited by the U.S. Code unless it has been
changed in the last six months and that maybe those states are
ignoring the federal law. He repeated the manufacturer has made
an aggressive lobbying effort in every state. He said he believes
they could be a great idea for commercial use for package
delivery as long as the vehicles are not running on sidewalks.
MR. DENNIS POSHARD, Special Assistant at the Department of
Transportation and Public Facilities (DOTPF), told members that
DOTPF has taken no position on this bill. He clarified that the
National Highway Traffic Safety Administration has made a ruling
that classifies this particular device as a non-motorized
vehicle. He pointed out that Section 1 of this bill applies to
the state and says that regulations adopted may not prohibit the
use of an electric personal motor vehicle; however, DOTPF could
adopt regulations that limit their use. He assumed the same
provisions under the Alaska Uniform Traffic Act would apply to
local governments so they could regulate the use of electric
personal vehicles but not prohibit their use.
SENATOR ELTON asked if he is correct in assuming that the city of
Juneau could not prohibit the use of electric personal vehicles
on sidewalks in the core downtown area during the tourist season.
MR. POSHARD said he is not qualified to make a legal analysis,
but his initial reaction is that a local government may be able
to further restrict them. He is aware of certain traffic laws
that local governments have adopted, particularly in Anchorage,
that are more restrictive than those contained in the state's
Uniform Traffic Act. He did not know whether any local laws have
been challenged. He said the Department of Law recently pointed
out that Sec. 28.01.010 of the Alaska Uniform Traffic Act reads,
"The provisions of this title and the regulations adopted under
this title are applicable within all municipalities of this
state." He indicated that could be legally interpreted either
way.
CHAIRMAN COWDERY asked Mr. Poshard if he was referring to the
restriction on truck routes in Anchorage and whether that
restriction was made because certain roads were not built to
withstand heavy truck traffic.
MR. POSHARD said he believes that is true but noted that other
provisions adopted by the local government in Anchorage are more
restrictive than the Uniform Traffic Act.
SENATOR TAYLOR said one could shoot a cannon down the main street
of Wrangell in the summer and not hurt anyone. He suggested if
pedestrian traffic is a problem in Juneau in the summertime, that
some of the pedestrians be sent to other communities.
CHAIRMAN COWDERY continued to take public testimony.
MS. MARY MARSHBURN, Director of the Division of Motor Vehicles
(DMV) in the Department of Administration, said she assumes
members are aware of a glitch in current law that requires a
driver's license to operate a snow machine and HB 397, which
seeks to fix that glitch for snow machines and other vehicles
that are not designed for road use. She noted that under current
law, electronic personal vehicles would be defined as motor
vehicles and because they do not meet federal safety standards,
they could not be used on the roadway. Passage of HB 397 would
resolve that problem.
CHAIRMAN COWDERY asked if any licensing requirements apply to
bicycles.
MS. MARSHBURN said none do.
SENATOR WARD asked Ms. Marshburn if it is her opinion that
drivers' licenses would be required to drive an electric personal
motor vehicle.
MS. MARSHBURN replied, "Mr. Chairman, very, very technically
because of a glitch in the law, yes."
SENATOR WARD said her interpretation is different than his. He
asked her to forward her opinion to the committee in writing so
that he could take a closer look at the issue.
CHAIRMAN COWDERY asked Ms. Marshburn if she would consider an
electric personal motor vehicle to be a motor vehicle.
MS. MARSHBURN said they are motor vehicles by state definition
because they are self-propelled devices. Because they do not meet
the federal safety equipment standards required under 13AAC 04,
they cannot be operated on a roadway.
SENATOR WARD asked Ms. Marshburn if she has read the latest
committee substitute (Version L) and whether it is her impression
that this version will allow electric personal motor vehicles to
be operated on roadways.
MS. MARSHBURN said she has the original bill.
SENATOR WARD said a previous witness mentioned skateboards with
motors and asked if DMV requires skateboards to be licensed.
MS. MARSHBURN said DMV does not.
SENATOR WARD asked why not.
MS. MARSHBURN said a motorized skateboard does not meet the
definition of a motor vehicle.
SENATOR WARD asked if an electric personal motor vehicle does
even though the federal government has ruled otherwise.
MS. MARSHBURN said that is correct. It is her understanding that
the National Highway Traffic Safety Administration makes rulings
based on the role that agency will play in developing standards
for vehicles. The rulings have nothing to do with the operation
of the vehicles.
SENATOR WARD asked why a skateboard with a small gas engine and a
steering device would not be considered to be a licensable
vehicle while an electric personal motor vehicle would be.
MS. MARSHBURN said she did not know that she could give Senator
Ward an answer to the technicalities. She stated, "And I would
emphasize - you know, emphasize, that in the strict
interpretation of the definition of motor vehicle is what we're
talking about for the segue or the IT just as it was a very
strict interpretation of the driver license law, which said it's
required for a snow machine. That certainly was not the intent of
the law." She pointed out this refers to a vehicle license as
opposed to a driver license.
CHAIRMAN COWDERY said he believes Senator Ward is concerned
because Mr. Poshard just said that an electronic personal motor
vehicle is not considered to be a motor vehicle under the federal
guidelines. He asked Ms. Marshburn if she has actually seen an
electronic personal motor vehicle.
MS. MARSHBURN said she has seen pictures of them.
SENATOR WARD asked Ms. Marshburn to send a written explanation to
members of how she arrived at her opinion that a driver's license
would be required to operate an electric personal motor vehicle.
MS. MARSHBURN agreed to do so.
There being no further testimony, SENATOR WARD moved CSSSSB
100(TRA) from committee with individual recommendations.
SENATOR ELTON objected for the purpose of addressing a proposed
amendment. He proposed that on page 1, line 12, following
"personal motor vehicle on a," the words "state owned and
maintained" be inserted. He explained with that amendment the
state could mandate that electric personal motorized devices
could be used on state sidewalks, vehicular ways and bike paths,
but it would preserve the point of view that the best government
is the government closest to the people and allow local
governments to implement their own rules.
SENATOR WARD objected.
SENATOR TAYLOR said he was taken with Mr. Harris's testimony, as
he believes these vehicles will be difficult to navigate. He said
he does not know that Senator Elton's amendment accomplishes his
goal because he does not know that the state does much
maintenance on any of those paths.
MS. HUBER said she understands Senator Elton's intent, but she
believes his amendment would be difficult to enforce because
state roads are within cities and could cause confusion. She
asked the Chairman if he would be willing to hold the bill until
Thursday so that she could work with members on a local option.
She said she would also look at what other states that have
passed similar legislation have done.
SENATOR ELTON said that would be great.
CHAIRMAN COWDERY said the committee has a full calendar on
Thursday so he will reschedule it on Thursday or Tuesday.
SENATOR WARD reminded the Chairman that his motion to move the
bill from committee was still active. He said he does not want
the Anchorage coastal trail exempted from this bill.
SENATOR ELTON stated, "Mr. Chair, what I would suggest is that I
don't have a problem with that - I think it's very generous of
the sponsor's office to make the offer and if, in fact, we can't
come to some kind of an agreement, I might vote against moving it
but I certainly wouldn't try to get in the way of moving it. I
would think that moving the bill, either amended or in its
present form, will take a matter of less than a minute." He noted
he maintained his objection.
SENATOR WARD repeated his motion to move CSSSSB 100(TRA) from
committee with individual recommendations.
SENATOR ELTON objected and said this bill imposes big government
rules that the municipalities will have to live under. He said
electric personal motor vehicles would create a big problem in
his community.
SENATOR WARD stated this legislation says that electronic
personal motor vehicles cannot be prohibited; it does not say
they cannot be regulated.
CHAIRMAN COWDERY announced the motion carried with Senators Ward,
Taylor and Cowdery in favor and Senator Elton opposed.
SENATOR TAYLOR noted for the record that he would work with
Senator Elton and the sponsor's staff to try to create a local
option.
SENATOR WARD said he would do likewise.
The committee took up HB 405.
HB 405-CRIMES ON OR AGAINST STATE VESSELS/PLANES
REPRESENTATIVE KEVIN MEYER, sponsor of HB 405, gave the following
summary of the legislation.
HB 405 gives the state jurisdiction over our state
owned watercraft including our watercraft that is
outside of state waters.
Recently a Superior Court judge dismissed the
prosecution for a sexual assault that occurred on one
of our Alaska state-owned ferries while it was in
Canadian waters.
Last year a young woman who was only 16 years old was
sexually assaulted while she was on the Alaska ferry,
Matanuska, en route from Seattle to Ketchikan. The
ferry was in Canadian waters at the time of the
assault. The district attorney in Ketchikan presented
the case to the grand jury there, and the grand jury
returned an indictment of one count of sexual assault
in the first degree, one count of sexual assault in the
second degree, and four counts of misdemeanor assault.
Unfortunately, Mr. Chairman, the court found that there
was no statutory authority for the State of Alaska to
prosecute the crime even though the victim was an
Alaskan on an Alaska-owned state ferry. Under federal
maritime law, the United States Government has
jurisdiction over crimes committed on United States
vessels in Canadian waters but the dismissal by the
state court is a concern because the client is unlikely
to be prosecuted by the federal government and
certainly is of very little interest to the Canadian
government. The federal government does not generally
prosecute offenses such as sexual assault and the
Canadian government has little interest in pursuing
this since it was a state-owned ferry and it was an
Alaska victim that it occurred to on the Alaska ferry.
I believe, Mr. Chairman, that it's prudent that we pass
a law that specifically will give the State of Alaska
the power to prosecute cases like this one and to
protect and defend our passengers on our state-owned
ferry system. Unfortunately this is not an isolated
incident and it is not going to go away. Just as
recently as December, four months ago, an intoxicated
passenger attacked two crewmembers on one of our
ferries with a vodka bottle and caused some minor
injuries. The passenger - and charges were filed
against this passenger - but the passenger has filed a
motion to dismiss the case based upon the sexual
assault that was dismissed last summer. Again, this
occurred in Canadian waters en route between Prince
Rupert and Ketchikan.
This bill is a very simple bill. It's a simple solution
to a very serious problem. What we have here is a
loophole in our law. The bottom line is that if the
Canadians won't and don't want to prosecute criminal
activity that occurs on state-owned vessels in Canadian
waters and the federal government doesn't have the time
or doesn't want to prosecute, then the State of Alaska
should at least have the option to do so if we so
desire. That, Mr. Chairman, is the just of the bill.
SENATOR WARD asked the name of the judge in Ketchikan who made
the ruling.
REPRESENTATIVE MEYER told members that this case was brought to
his attention by the Department of Law. He deferred to Ms.
Carpeneti for details of the case.
MS. ANNE CARPENETI, Assistant Attorney General, informed members
that Judge Weeks made the decision but said there is reason for
his decision. She noted that although the Department of Law is
appealing the decision, the most prudent approach is to pass a
statute, which Judge Weeks suggested in his decision.
SENATOR WARD asked if both the victim and the alleged offender
are American and Alaska citizens.
MS. CARPENETI said the victim is an American who lives in the
Anchorage area. Ms. Carpeneti said she believes she is an Alaska
resident. The defendant is an American citizen and she was not
sure what state he is a resident of.
SENATOR WARD asked what charge the defendant was extradited on.
MS. CARPENETI said she did not know as he was extradited on
charges brought in another state. She offered to get Senator Ward
more information on the extradition charge. She added that the
defendant was extradited in Alaska on this charge.
SENATOR WARD stated, "He was indicted on this charge, but yet the
judge ruled that he couldn't be indicted on this charge because
there was no law for it?"
MS. CARPENETI explained the ruling stated that crimes and
jurisdiction over crimes in Alaska are dictated by statute;
Alaska does not have common law crimes anymore. Alaska's
jurisdictional statute allows the state to prosecute crimes
committed in its territory or committed outside of the territory
when the effect is consummated in our state. This particular
offense was committed outside of Alaska's territory and the harm
occurred outside of its territory. For that reason, the judge
ruled that the state does not have jurisdiction.
SENATOR WARD asked if a sexual assault occurred in a state-owned
military airplane while flying over Canada's airspace and the
victim and offender were American citizens, whether Alaska would
have jurisdiction.
MS. CARPENETI said this bill does not address that issue and that
state airplanes generally operate in state airspace.
SENATOR WARD said he was referring to a state-owned military
airplane that legally travels outside of state airspace.
MS. CARPENETI said it would depend on the circumstances. She
remarked, "I'm sure they would be breaking somebody's law. They
would probably be breaking federal law and they would probably be
breaking the law if it's a sexual assault of the territory in
which it happened - in the airspace where it happened."
SENATOR WARD asked, "And it's this judge's opinion that the law
wasn't broken because there was no law on it?"
MS. CARPENETI replied that Judge Weeks did not express an opinion
on the particular offense. His decision was not based on his
opinion that a law hadn't been broken but instead that the state
needs a statute on which to base the state's authority to
prosecute the case because it occurred outside of Alaska
territory.
SENATOR WARD asked, "So if, in fact, this hypothetical airplane I
just described was flying outside of Alaska airspace into
Canadian airspace and this sexual assault had occurred, would
there not be any law to bring charges in that situation?"
MS. CARPENETI asked Senator Ward if he was referring to State of
Alaska law or Canadian law.
SENATOR WARD said Alaska law.
MS. CARPENETI said that first of all, federal law would probably
apply.
SENATOR WARD asked if federal law would apply to the case on the
ferry.
MS. CARPENETI said yes, the federal government has jurisdiction
on United States flag vessels but, generally, the federal
government does not pursue cases like this on ferries. It tends
to pursue cases on airplanes.
REPRESENTATIVE MEYER commented that it seems when something
happens on an airplane, the federal government is right there to
prosecute. However, since the ferry system is state-owned, the
federal government does not seem to have the same level of
interest.
CHAIRMAN COWDERY asked about cruise ships or privately owned
ferry systems.
MS. CARPENETI said the jurisdictional theory that this bill is
based on is that a state-owned vessel, "has enough connections -
is kind of like a piece of Alaska traveling through international
waters." She assumed a vessel owned by another private entity
traveling in Canadian waters would turn into the next port in
Canada and report the crime there. It is much more difficult for
an Alaska ferry to go off course and off schedule and travel to a
port that may not be able to accommodate the vessel.
SENATOR TAYLOR said a different Ketchikan Superior Court judge
found jurisdiction in a previous case and convicted someone
traveling on the Alaska ferry in Canadian waters.
MS. CARPENETI said she believes Senator Taylor is correct.
SENATOR TAYLOR said that is why this decision was considered to
be unique or aberrant to the extent that probably no one has
aggressively raised the defense before.
TAPE 02-14, SIDE B
SENATOR TAYLOR asked why the legislation is limited to ferries.
He questioned whether federal jurisdiction extends to foreign
flag vessels bringing tourists to Juneau from Vancouver, B.C.
MS. CARPENETI said she believes the state could prosecute a crime
against a state law on such a vessel if the crime occurred while
the vessel was in Alaska territory. The Canadian government would
have jurisdiction if the vessel was in Canadian waters. She added
the flag of the ship would have jurisdiction no matter where the
ship is. The United States government has prosecuted crimes that
occurred on U.S. flagships traveling on rivers in Africa. She
assumed the Washington authorities could prosecute a crime that
happened between Bellingham and Canada.
SENATOR TAYLOR said he gets confused about the jurisdictional
questions because it is almost frightening to think about an
incident occurring to a tourist on a boat registered in the
Seychelles. He noted that Dixon Entrance is a large gray zone as
far as whether Canada or the United States has jurisdiction. He
stated:
You could very easily be dealing with two different
foreign nationals involved. You might have a crewmember
that's perpetrated a crime and the crew member is from
Italy maybe, and the victim is from Mexico. I think
that all becomes very confusing. I think at least as
far as our state-owned vessels we ought to have some
continuity and I'm assuming that your department
supports this legislation.
MS. CARPENETI said the department does support the legislation.
SENATOR TAYLOR asked if there is any reason to not consider
aircraft in the legislation. He said the Departments of Public
Safety and Fish and Game have an aircraft fleet of somewhere
between 46 and 52 and that any aircraft flying three miles
offshore is in international airspace.
MS. CARPENETI replied that most state aircraft operate in the
state but she can understand the desire to include state-owned
aircraft traveling outside the state. The problem, in terms of
vessels, for the Department of Law has not necessarily been with
crimes that have occurred in international waters because Alaska
has a statute that says where the federal government can exercise
jurisdiction, the state can also. That has allowed the state to
prosecute under Alaska's theft statutes. The issues generally
deal with due process - whether it is fair for the state to
exercise jurisdiction under the circumstances with the connection
between Alaska and the offense. She added that a state-owned
aircraft would probably be similar to a state-owned ferry.
SENATOR WARD asked, regarding the previous conviction that
Senator Taylor referred to, if that person would be able to file
for an appeal to get out of prison if this bill passes.
MS. CARPENETI said she does not believe so because this bill will
give the state jurisdiction to prosecute.
SENATOR WARD asked if passage of this bill could set up an
argument that the person convicted of rape was not convicted
legally because the state did not have jurisdiction.
MS. CARPENETI said she does not believe so because she believes
this legislation makes explicit a position taken in the lower
court.
SENATOR TAYLOR noted the case is on appeal and a decision will be
made eventually by Alaska's Supreme Court as to whether or not
Judge Weeks was correct in denying jurisdiction to our state in
those waters. If the Supreme Court decides the state had
jurisdiction all along and Judge Weeks was wrong, then the man
convicted in Ketchikan was justly convicted and there would be no
problem. However, if the Supreme Court says Judge Weeks was
correct, the state did not have jurisdiction, the convicted man
would have some right to appeal that conviction. Enacting this
law, confirming or reasserting the state's jurisdiction, will
only be effective from that date forward anyway but it would not
play upon the earlier case because it is not a negative - it
doesn't say the state did not have jurisdiction, it further
asserts the state did have jurisdiction. He commented that he
does not want to see the case on appeal dropped if this law is
enacted.
MS. CARPENETI stated the Department of Law is pursuing the
appeal.
There being no further testimony or questions, SENATOR WARD moved
HB 405 from committee with individual recommendations.
CHAIRMAN COWDERY announced that without objection, the motion
carried. With no further business to come before the committee,
he adjourned the meeting at 2:30 p.m.
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