HOUSE STATE AFFAIRS STANDING COMMITTEE March 21, 1998 10:07 a.m. MEMBERS PRESENT Representative Jeannette James, Chair Representative Ivan Ivan, Vice Chairman Representative Ethan Berkowitz Representative Fred Dyson Representative Kim Elton MEMBERS ABSENT Representative Mark Hodgins Representative Al Vezey COMMITTEE CALENDAR SENATE BILL NO. 307 am "An Act relating to conditions for filling vacancies in the office of United States senator; and providing for an effective date." - MOVED HCSSB 307(STA) OUT OF COMMITTEE HOUSE BILL NO. 462 "An Act relating to the contents of certain state documents." - MOVED CSHB 462(STA) OUT OF COMMITTEE * HOUSE BILL NO. 466 "An Act relating to violations of state election laws." - HEARD AND HELD HOUSE BILL NO. 468 "An Act relating to damages awarded in complaints before the State Commission for Human Rights." - SCHEDULED BUT NOT HEARD (* First public hearing) PREVIOUS ACTION BILL: SB 307 AM SHORT TITLE: U.S. SENATE VACANCIES SPONSOR(S): SENATOR(S) HALFORD, Leman, Green, Miller, Torgerson, Pearce, Ward, Phillips, Taylor, Kelly Jrn-Date Jrn-Page Action 2/16/98 2525 (S) READ THE FIRST TIME - REFERRAL(S) 2/16/98 2525 (S) JUDICIARY 3/02/98 (S) JUD AT 1:30 PM BELTZ ROOM 211 3/02/98 (S) MINUTE(JUD) 3/03/98 (S) RLS AT 11:35 AM FAHRENKAMP RM 203 3/03/98 (S) MINUTE(RLS) 3/03/98 2716 (S) JUD RPT 2DP 1NR 3/03/98 2716 (S) DP: TAYLOR, MILLER NR: PARNELL 3/03/98 2716 (S) ZERO FISCAL NOTE (GOV) 3/04/98 2735 (S) RULES TO CALENDAR 3/4/98 3/04/98 2737 (S) READ THE SECOND TIME 3/04/98 2737 (S) ADVANCED TO THIRD READING UNAN CONSENT 3/04/98 2737 (S) READ THE THIRD TIME SB 307 3/04/98 2737 (S) COSPONSOR: KELLY 3/04/98 2737 (S) PASSED Y19 N1 3/04/98 2737 (S) EFFECTIVE DATE(S) SAME AS PASSAGE 3/04/98 2737 (S) DUNCAN NOTICE OF RECONSIDERATION 3/05/98 2756 (S) RECON TAKEN UP - IN THIRD READING 3/05/98 2756 (S) RETURN TO SECOND FOR AM 1 UNAN CONSENT 3/05/98 2756 (S) AM NO 1 OFFERED BY DONLEY 3/05/98 2756 (S) AM NO 1 ADOPTED Y11 N9 3/05/98 2757 (S) AUTOMATICALLY IN THIRD READING 3/05/98 2757 (S) PASSED ON RECONSIDERATION Y15 N5 3/05/98 2757 (S) EFFECTIVE DATE(S) SAME AS PASSAGE 3/05/98 2759 (S) TRANSMITTED TO (H) 3/06/98 2533 (H) READ THE FIRST TIME - REFERRAL(S) 3/06/98 2533 (H) STATE AFFAIRS 3/19/98 (H) STA AT 8:00 AM CAPITOL 102 3/19/98 (H) MINUTE(STA) 3/21/98 (H) STA AT 10:00 AM CAPITOL 102 BILL: HB 462 SHORT TITLE: USE OF STATE MONEY FOR IMAGES/MESSAGES SPONSOR(S): FINANCE Jrn-Date Jrn-Page Action 2/25/98 2429 (H) READ THE FIRST TIME - REFERRAL(S) 2/25/98 2429 (H) STATE AFFAIRS, FINANCE 3/12/98 (H) STA AT 8:00 AM CAPITOL 102 3/12/98 (H) MINUTE(STA) 3/21/98 (H) STA AT 10:00 AM CAPITOL 102 BILL: HB 466 SHORT TITLE: CAMPAIGN MISCONDUCT: FALSE INFORMATION SPONSOR(S): STATE AFFAIRS Jrn-Date Jrn-Page Action 3/06/98 2542 (H) READ THE FIRST TIME - REFERRAL(S) 3/06/98 2542 (H) STATE AFFAIRS, JUDICIARY 3/19/98 (H) STA AT 8:00 AM CAPITOL 102 3/19/98 (H) MINUTE(STA) 3/21/98 (H) STA AT 10:00 AM CAPITOL 102 WITNESS REGISTER BILL STOLTZE, Legislative Administrative Assistant to Senator Rick Halford Alaska State Legislature Capitol Building, Room 121 Juneau, Alaska 99801 Telephone: (907) 465-4958 POSITION STATEMENT: Provided information on SB 307. REPRESENTATIVE GENE THERRIAULT Alaska State Legislature Capitol Building, Room 511 Juneau, Alaska 99801 Telephone: (907) 465-4797 POSITION STATEMENT: Sponsor of HB 462. NANCI JONES, Director Permanent Fund Dividend Division Department of Revenue P.O. Box 110460 Juneau, Alaska 99811-0460 Telephone: (907) 465-2323 POSITION STATEMENT: Provided testimony on HB 462. PAT CARTER, Legislative Assistant to Representative Mark Hodgins Alaska State Legislature Capitol Building, Room 110 Juneau, Alaska 99801 Telephone: (907) 465-2283 POSITION STATEMENT: Presented sponsor statement for HB 466. ACTION NARRATIVE TAPE 98-40, SIDE A Number 0001 CHAIR JEANNETTE JAMES called the House State Affairs Standing Committee meeting to order at 10:07 a.m. Members present at the call to order were Representatives James, Berkowitz, Dyson, and Elton. Representative Ivan arrived at 10:11 a.m. SB 307 am - U.S. SENATE VACANCIES Number 0009 CHAIR JAMES announced the first order of business was SB 307 am, "An Act relating to conditions for filling vacancies in the office of United States senator; and providing for an effective date." She noted she had before her a committee substitute that was identical to the original bill. Number 0020 REPRESENTATIVE FRED DYSON made a motion to adopt proposed committee substitute, 0-LS1574\F, Glover, 3/20/98 as the working draft. There being no objection, that version was before the committee. Number 0026 BILL STOLTZE, Legislative Administrative Assistant to Senator Rick Halford, Alaska State Legislature, explained that the version of SB 307 just adopted by the committee does not contain an amendment adopted on the Senate floor that required confirmation by the legislature. He indicated that he heard Assistant Attorney General Jim Baldwin's testimony given at the previous meeting and understood the committee's concerns. He stated he would have spoken in favor of Representative Berkowitz's amendment on Senator Halford's behalf at that same meeting, but did not have the opportunity to do so. CHAIR JAMES maintained that there is a good rationale for Representative Berkowitz's amendment but her concern is its cost. She asked Mr. Stoltze if Senator Halford would be happy with the adoption of that amendment. Number 0047 MR. STOLTZE said he does not expect the provision of the amendment will need to be implemented, and hopes it will not, but Senator Halford feels the cost will probably be a one-time expenditure. Mr. Stoltze stated, "We've seen the value of a U.S. Senate seat. I guess it's a pretty good pay-off if you do it right the first time." CHAIR JAMES stated the committee would have to vote to rescind its action on failing to approve Amendment 1. Number 0066 REPRESENTATIVE ETHAN BERKOWITZ made a motion to rescind the committee's previous failure to adopt Amendment 1. There being no objection, it was so ordered. REPRESENTATIVE DYSON asked for an explanation of that action. CHAIR JAMES explained Amendment 1 was proposed by Representative Berkowitz. That amendment requires that a vacant U.S. Senate seat be filled by a special election, rather than by an appointment by the Governor. REPRESENTATIVE DYSON asked if committee members had a copy of the amendment. CHAIR JAMES said a copy should be in each committee members' packet. Number 0106 CHAIR JAMES announced Representative Ivan had arrived. She informed him that the committee had just rescinded its action failing to adopt Amendment 1. REPRESENTATIVE BERKOWITZ indicated the amendment essentially requires a special election to be held to fill a U.S. Senate seat under all circumstances, instead of requiring a gubernatorial appointment. Number 0133 CHAIR JAMES noted Representative Ivan wanted to hear from Mr. Stoltze on this issue. MR. STOLTZE confirmed that Senator Halford does support the amendment that was proposed by Representative Berkowitz because it moves the legislature in the same direction as it is going with the constitutional problems of legislative confirmation. CHAIR JAMES stated the motion to adopt Amendment 1 was before the committee. REPRESENTATIVE DYSON maintained the election of public officers is inordinately precious in our process, and although he appreciates the concerns expressed about the cost, he believes a participatory democracy is so precious that the legislature should bite the bullet and spend the money. Number 0165 CHAIR JAMES asked if there are any objections to the amendment. There being no objection, Amendment 1 was adopted. Number 0170 REPRESENTATIVE BERKOWITZ made a motion to move HCSSB 307(STA) out of committee with individual recommendations and the attached fiscal notes. There being no objection, HCSSB 307(STA) moved out of the House State Affairs Standing Committee. BARBARA COTTING, Legislative Assistant to Chair James, asked if she would have to get another fiscal note on the bill. CHAIR JAMES responded there may not be a fiscal note because no special election is scheduled. HB 462 - USE OF STATE MONEY FOR IMAGES/MESSAGES Number 0190 CHAIR JAMES announced the next order of business was HB 462, "An Act relating to the contents of certain state documents," sponsored by Representative Therriault. She said she would entertain a motion to adopt the proposed committee substitute. Number 0208 REPRESENTATIVE IVAN IVAN made a motion to adopt the proposed committee substitute for HB 462, Version 0-LS1527\H, Bannister, 3/20/98, for consideration. There being no objection, it was so adopted. CHAIR JAMES called on Representative Gene Therriault, sponsor of the bill to testify. Number 0217 REPRESENTATIVE GENE THERRIAULT, sponsor, Alaska State Legislature, stated the changes primarily dropped the restriction on placing a message and photo to cover only those who hold an elected state office. Agency personnel would be able to put information on the longevity bonus check stub, for example. Information on the dividend application about the program would be appropriate, if signed by the commissioner or director of the program. Section 1(b) reads, "A state agency may not place a message on or with an application form, a warrant, or a direct deposit notice provided by the agency unless the message is (1) from a state agency employee who is not an elected state official; and (2) required by law, necessary for the operation of the document, related to seasonal health issues including flu shot reminders, or limited to stating the requirements or deadlines of a program or activity of a state agency." The wording was changed so that clearly on the longevity bonus check stub there could be information about the deadline for the permanent fund dividend, for example. He did not want to preclude that from happening. The definitions in the rest of the bill remain the same. Number 0251 REPRESENTATIVE BERKOWITZ stated there is no effective date for the bill. He wondered whether there is anything in the "hopper" that would violate the bill. Number 0257 REPRESENTATIVE THERRIAULT stated certainly the next permanent fund dividend applications are far enough away that they would not be at the print shop now. There might be a problem with the longevity bonus check stubs, however. An immediate effective date isn't necessary, if it would cause some problems with the things in the works already. Number 0265 CHAIR JAMES stated anything started before an effective date would be precluded, unless there was time to change it. If something had already gone to print before the effective date, it wouldn't be affected. Number 0276 REPRESENTATIVE THERRIAULT stated it is up to the committee to decide if a specific effective date is necessary. It might be up to what the Administration says in terms of what it has in the "hopper," and what type of time line would be needed in order to change any kind of document in the works. Number 0281 CHAIR JAMES stated no one from the Administration is here, except for Nanci Jones from the Permanent Fund Dividend Division. REPRESENTATIVE THERRIAULT stated Pat Pourchot from the Office of the Governor spoke to him about the bill and expressed that the Administration thought it might be an encroachment on their basic powers. It was a pleasant conversation, but there was a difference in points of view. "Certainly, the legislative branch, the Administration has money budgeted to get their message out. But, we don't do that on regular, programmatic documents. And I think the -- part of the problem is that you start politicizing those documents and those programs. And there are other means to get your message out and I really don't think that we should allow that kind of information to be placed on these documents." Number 0302 REPRESENTATIVE KIM ELTON stated, in reference to the timing, the bill speaks more to when a document is printed rather than when it would be distributed. It seems, therefore, that there would not be a problem with the effective date. Documents prepared up until the time of the effective date would not be affected. CHAIR JAMES stated that would be her read too. She called on Nanci Jones from the Permanent Fund Dividend Division, Department of Revenue, to testify. Number 0316 NANCI JONES, Director, Permanent Fund Dividend Division, Department of Revenue, testified in reference to the printing of the longevity bonuses, retirement and benefit checks, permanent fund dividend checks, and payroll checks stating they all try to buy warrant stocks together. Each has something different printed on the top of the warrant. "There might be a place where we would have to destroy whatever we had in order to buy new stock." She is not sure about the intricacies of the longevity bonus mentioned earlier. The booklet does not go to print until late fall. CHAIR JAMES entertained a motion to move the bill out of the committee. Number 0332 REPRESENTATIVE IVAN made a motion to move the proposed committee substitute for HB 462, Version 0-LS1527\H, Bannister, 3/20/98, from the committee with individual recommendations and the attached fiscal note(s). There being no objection, CSHB 462(STA) was so moved from the House State Affairs Standing Committee. HB 466 - CAMPAIGN MISCONDUCT: FALSE INFORMATION Number 0345 CHAIR JAMES announced the next order of business would be HB 466, "An Act relating to violations of state election laws," sponsored by Representative Hodgins. PAT CARTER, Legislative Assistant to Representative Hodgins, Alaska State Legislature, stated HB 466 is an attempt to clean up some of the campaign tactics that have been more prevalent in past years. The practice of casting unproven dispersions in a desperate attempt to sway public opinion in the last days of an election has become pervasive in recent elections and needs to be stopped. HB 466 raises the penalty from a class A misdemeanor to a class C felony for knowingly distributing false information regarding the candidate. "We've attached some leeway on that so that if a person was so -- the person has to knowingly disseminate that information." He said for the purposes of this bill, disseminate means to convey to another person by any means. They have to disseminate that information with regard to it relating to a candidate for election and such information will provoke a reasonable person under the circumstances to a breach of the peace or to construe as damaging to the candidate's reputation for honesty, integrity, or qualification to serve if elected. Only a defeated candidate may contest the nomination or election of a person for violation of this section. Number 0376 CHAIR JAMES stated if someone knowingly distributed false information and the person was elected anyway, they cannot be charged. MR. CARTER said that's correct. They would still be able to pursue civil damages. He said the way the bill reads is only a defeated candidate may contest the nomination or election of a person for a violation of this section. CHAIR JAMES reiterated if you were a defeated candidate and there was someone on the other side, not necessarily the candidate, but someone else who was supporting that candidate, then they could contest the election based on this challenge. She asked Mr. Carter if that is what he meant. MR. CARTER said, "I believe so." Number 0401 REPRESENTATIVE BERKOWITZ stated the winning candidate obviously will not contest the election, but there might be a third party. He asked if the bill would want to preclude a third party from contesting the election. MR. CARTER replied the bill states that only a defeated candidate may contest the election, not necessarily whether they were damaged or not, but that a third party may contest the election. Mr. Carter referred to Section 2, (1), subsection (b) and read the following: "(b) Violation of this section is a corrupt practice. However, notwithstanding AS 15.20.540, only a defeated candidate may contest the nomination or election of a person for violation of this section." He said only the defeated candidate may contest the actual outcome of an election; a third party could not. Number 0420 REPRESENTATIVE DYSON asked what the burden of proof is like to establish the knowing distribution of false information. "Is it a difficult one." REPRESENTATIVE BERKOWITZ replied if it is a criminal case, the burden of proof would lie on the state to prove beyond a reasonable doubt that this person knowingly committed a crime. REPRESENTATIVE DYSON asked how difficult is it to establish (indisc.) practice. MR. CARTER replied a person would have to have made statements where they had a person come in and testify that this person had actually told him that he was going to fabricate this information. REPRESENTATIVE BERKOWITZ said "knowingly" is one of the highest standards, and you can infer intent through circumstances. You might not need for a person to say, "I'm going to falsify this," but you can observe through the method that he put the information out or any of the circumstances around it that it was false. Number 0442 CHAIR JAMES interjected and said she wanted to explain what she thinks the practicality of "knowingly" is. The first measure would be, is it false. If it happens to be something that is not false, even though it's damaging, it doesn't apply. Secondly, when it's false, did the person who made this statement know that it was false. Chair James expressed the evidence of that would be if the person didn't know, where did the person get the information and then that person would have to provide proof that they had information that they believed not to be false. Number 0452 MR. CARTER stated if a person made a false statement about a candidate, whether through an advertisement on the radio, or in a newspaper publication, or whatever, and that candidate proved that it was a false statement, and if that person continued to run the false statement, then under the purposes of this legislation, each day it continued to run would constitute a separate violation. You would also have a reasonable case if a person declared publicly that they will fabricate information about a candidate. CHAIR JAMES asked what if this happened in the last few days of an election and that person doesn't have time to prove that it's their fault. MR. CARTER replied that is always going to be the problem. But what the legislature is up against is the restriction on freedom of speech and the courts have been pretty conservative with regard to how to restrict that. Number 0475 CHAIR JAMES then asked if the candidate gets elected anyway, regardless of this, could they do anything about it and yet maybe they would only have a civil case against them for damaging their character. MR. CARTER answered in the affirmative. REPRESENTATIVE DYSON remarked that truth is an ultimate defense against defamation of character. To him, another defense would be ignorance and proving the lack of ignorance must be an interesting thing to establish in court. He stated he is very intrigued about that. He also asked what the range of penalties are in a class C felony. MR. CARTER referred to Section 2, subsection (a) stating there is language which addresses knowing the information is false or with reckless disregard for whether the information is false. REPRESENTATIVE DYSON reiterated and asked Mr. Carter what the range of penalties are in a class C felony. MR. CARTER responded a typical class C felony would be similar to someone writing bad checks or a vehicle theft. REPRESENTATIVE DYSON then asked what the penalties would be. REPRESENTATIVE BERKOWITZ interjected and said the penalties would be up to five years in jail and he believes $10,000 in fines. REPRESENTATIVE DYSON asked if other political jurisdictions have passed similar legislation and what has been the history. MR. CARTER replied he has not had the chance to get the information from the Legislative Legal and Research Division (legal division) whether or not other states have passed this type of legislation. He indicated the legal division is currently working on it. The problem, to date, given that this is a class A misdemeanor, the courts have all but ignored this type of violation. People have had their reputations impugned and their integrity, as well as long-term damage to their family standing in the community. He feels the public has clearly shown that they are tired of this type of negative campaigning. The fact that someone can get away with damaging one's character with no recourse, is the purpose of this legislation. REPRESENTATIVE DYSON asked if the sponsor discussed this with the Administration and the Office of the Attorney General. Number 0516 MR. CARTER replied the attorney general's office is not weighed in. They have not formed an opinion on this legislation. REPRESENTATIVE DYSON again asked if the sponsor has talked to the Administration regarding this legislation. MR. CARTER answered no. REPRESENTATIVE KIM ELTON asked, "I'm curious, Pat, as to whether this law in its current form were -- it's a simple misdemeanor -- has ever been applied?" MR. CARTER replied, "Someone has actually -- and without mentioning names and furthering the spreading of rumor..." REPRESENTATIVE ELTON interjected and said, "For public record, have the charges been brought?" MR. CARTER said he did not know if charges were actually brought and then dropped, but he knows the likelihood of the court taking it up weighed in as to whether or not they were going to pursue it. Number 0534 REPRESENTATIVE ELTON indicated he is concerned with the issue of freedom of speech. To him it seems they are not just holding out the thread of serious consequences if someone knowingly distributes false information. They are also creating a situation if, in the last days of a campaign, someone says something "nasty" about a candidate, that candidate can go to the radio station and ask for that advertisement to be removed because it is untruthful, and the radio station could incur a penalty of up to five years in jail and a $10,000 fine. He noted that whether the statement was true or not, or whether it is misleading which is even more difficult to prove, what that candidate in this situation has done is restrict speech, specifically political speech, which is very important. MR. CARTER remarked he realizes this legislation is treading near the edge of stepping on the freedom of speech, but he doesn't believe they have crossed that edge. If you get into a debate as to whether or not a person has impugned a candidate's reputation with a false statement, certainly it's hard to disprove it. It would be a judgment call on whether it would be the radio station or a newspaper or whatever as to whether or not that information is false. But the person would have to bear the consequences as a result of the election. Number 0557 CHAIR JAMES stated it appears to her if someone purchased some advertisement and it was false, she does not feel that the radio or television station could be held liable, unless someone brought in proof and they felt it was journalistically proper to say they would not run the advertisement anymore. She indicated she would not want to set up a situation where an innocent bystander to the issue would be put in jeopardy. MR. CARTER explained the way the legislation is currently drafted is that a radio station or newspaper would not be held liable unless a journalist that was under their employee was the fabricator of the information himself. Whether or not they would pull the information would be their own decision. REPRESENTATIVE ELTON informed the committee there are two different kinds of speech that are involved in a radio station: journalistic speech and paid speech. An advertisement is paid speech. He said the way he interprets the bill is that a person commits a crime if they disseminate false or misleading information. It's not just the person who originates the information, it is also the person disseminating the information. If he went into a radio station and asserts as a victim that the information is untrue, whether the information is true or not, it puts the radio station in a very difficult position. The radio station has to decide who to believe, especially if it happens a week before an election. The candidate can inform the radio station it will take them four or five days to prove the information is untrue, but everyday they continue running the advertisement, is another day of liability they accrue if they continue to run it. CHAIR JAMES emphasized the legislature needs to do something to stop this kind of activity because it is proliferating. She said there needs to be a deterrent for this type of misconduct. It appears to her, after reading this legislation, it will probably never get to the application. Chair James' concern is that she does not want to have an application that could be misused or get to the wrong party. Number 0599 REPRESENTATIVE BERKOWITZ noted that a radio or television station could be guilty the way the legislation is currently written. MR. CARTER emphasized that a person must knowingly distribute that information. If a candidate advised the radio or television station that the information was false, that would not constitute them knowingly continuing to do it. REPRESENTATIVE BERKOWITZ asked if that would put the radio or television station on notice. MR. CARTER answered in the affirmative. REPRESENTATIVE BERKOWITZ stated if at that point, a candidate did not check it out, is there a recklessness to what they are doing. MR. CARTER said he agreed. Number 0608 REPRESENTATIVE BERKOWITZ referenced the word "misleading" stating there is no parallel structure with that word throughout Section 2, subsection (a) which reads "...if the person disseminates false or misleading information, knowing that the information is false or with reckless disregard for whether the information is false..." He noted there is no mention of the word "misleading" in the latter phrases of this section which is an ambiguity. Representative Berkowitz advised that the purpose of this legislation is to try to limit attack advertisements and get campaigns back to discussions of issues which need to be based on fact and not innuendo. REPRESENTATIVE BERKOWITZ wanted to clarify the courts have nothing to do with bringing the charge. Charges are brought by prosecuting agencies by district attorneys. He pointed out the courts are not imposing penalties because cases are not being brought forth. He expressed there is a misunderstanding of the process and referred to the sponsor statement, "the courts have all but ignored any attempt to curb this practice." He said it is not up to the courts to enforce the law. "They execute the law when it comes to them." Representative Berkowitz stated, "This is a 1996 law, as far as I understand. I'd like to see it get a chance to grow some legs and see if it works as a misdemeanor because it is a serious penalty. I'm also concerned that only a defeated -- well, I guess it's post campaign..." Number 0630 CHAIR JAMES stated she believes it means only the damaged person and they have to be damaged first. REPRESENTATIVE BERKOWITZ commented he feels there is an inequity with that because "what we're trying to do is you want to have more parallelism." It's not the winning or losing at some point that is important, it's how you play the game. "And we're saying if you win, then it doesn't matter how the other side plays the game. And if we're trying to clean up the process, I think the folks who play the game badly and still lose should still suffer consequences for that." Number 0635 CHAIR JAMES gave an example, if a particular candidate was having an affair with someone else and it was false, there is also the someone else who was misused in this case. She asked if that person were not a candidate, they could not make these charges. MR. CARTER replied that this was a suggestion put in by the legal division. He said he could get a written description of why they felt it was necessary. REPRESENTATIVE ELTON commented the way he reads the legislation is the restriction on the defeated candidate is only on whether or not you contest the election, not whether or not you committed a class C felony. MR. CARTER indicated the violation of this section is a corrupt practice. The bill would still constitute corrupt practice, but the election could not be contested. Number 0651 REPRESENTATIVE DYSON referred to page 2, line 23 and asked why "breach of the peace" is included in the legislation. MR. CARTER informed the committee that during the last election there was an incident where a candidate distributed false information about a person who was not a candidate. The person who was not the candidate went to the candidate's house and as a result, a fist fight ensued. That is what he feels would constitute a breach of the peace. REPRESENTATIVE DYSON referred to Section 2, subsection (2) of HB 466 and asked "You're guilty of campaign misconduct if what you do would be construed as provoking a reasonable person to punch somebody's lights out?" MR. CARTER answered in the affirmative. He said it would also have to include a candidate who is running for election. In non- election years, it would not be applicable. REPRESENTATIVE DYSON asked if there is language in the legislation that requires the state to prosecute the action. CHAIR JAMES expounded on Representative Dyson's point asking if the candidate whom false statements were made against loses the election, can they contest the election on that point as well as recounting the ballots. MR. CARTER answered "they could." Number 0690 CHAIR JAMES said if a candidate contested an election because false statements were made against them, she would assume the next step would be to determine whether the offense was done and that there was a direct relationship to the election. She asked, "If that candidate challenges the election, who picks up the other ball and runs with it to go to the prosecuting attorney and files a case?" MR. CARTER replied the state would pursue that as a criminal action and they would have to prove beyond a reasonable doubt that the person who knowingly distributed that false information did do that action. CHAIR JAMES stated in this situation the state would be the plaintiff. MR. CARTER said that was correct. CHAIR JAMES asked, "As a result of that person challenging the election, what if the person won anyway, then what happens?" MR. CARTER responded it's a civil case. CHAIR JAMES asked if a candidate won an election, but still wanted to file charges against the person making false statements about them, would they have to file a civil case and pay their own attorney's fees. MR. CARTER answered in the affirmative. Number 0706 CHAIR JAMES inquired if a person were found guilty in a civil case which has a different level of proof than a criminal case, would the same penalty apply or would there be a different penalty in a civil case. MR. CARTER responded the way he understands the legislation is that the penalties would be substantially different. One would be monetary damages and the other would be criminal damages. CHAIR JAMES stated a candidate already has the opportunity to go to a civil case on this. MR. CARTER responded that is correct. CHAIR JAMES inferred, "And probably what happens is that it's expensive and they don't do it. And so if we mandate it so that the state has to do it in these cases, then it will get done and it won't be at the expense of the person who was ..." REPRESENTATIVE ELTON interjected and stated if a person is convicted of a felony, they are not allowed to vote. REPRESENTATIVE ELTON asked if a person is not allowed to vote, are they allowed to serve. MR. CARTER responded no. REPRESENTATIVE ELTON commented a person would not have to be an undefeated candidate to get that person out of office. "Another person could ... TAPE 98-40, SIDE B Number 0001 REPRESENTATIVE ELTON continued, "...false or misleading information." If that person were convicted they would be out of office if, in fact, it had been the other candidate who had been responsible for distributing the information. MR. CARTER advised Representative Elton a campaign manager could not seek criminal charges. They could propose the case to the state and have the state file the criminal charges. REPRESENTATIVE ELTON stated he thought the defeated candidate is the only one who can contest the election. MR. CARTER stated that is correct. REPRESENTATIVE ELTON asked if the legislation allows only the defeated candidate to seek the felony charges. MR. CARTER responded in the negative and explained anyone could ask the state to pursue those charges, and then the state would pursue the charges, not a campaign manager or an innocent bystander. REPRESENTATIVE ELTON asked if a person wanted to file charges against someone who knowingly distributed false information about a person, the state could then pursue that case. And if the person who distributed that information was in fact the other candidate, that person would be out of office because, if they were convicted, they would be a felon. MR. CARTER stated he believes that is correct, depending on the timing of it and how long it would take to go before the court. In the meantime, the defeated candidate would be able to contest the election. The way he understands the legislation is that any person could bring information to the state and ask that this person be prosecuted given the information that is presented to them. At that point, the state would decide if there is a case or not. An innocent bystander or campaign manager would not be the people that would actually bring the charges against this person. Number 0059 CHAIR JAMES stated a number of legal questions need to be answered regarding this legislation and informed the committee they have some options. Since HB 466 has a referral to the Judiciary Committee, she feels the legal issues should be addressed there, as well as having representation from the legal division and attorney general's office. The other option would be for the sponsor to try to work through some of the issues in this committee or put in a subcommittee and deal with it. Chair James stated the committee could also decide to put a stop to this practice because it is in the best interest of the state and proceed to do some law changes. She asked the sponsor what he would prefer to do. Number 0120 MR. CARTER requested a tighter definition on the questions proposed by the committee. He said the committee just debated issues regarding this legislation and he is unclear what questions the committee wants answered. CHAIR JAMES stated the questions are quite clear to her, for example: 1) who gets to bring these charges; 2) how are the charges brought about; 3) who all is involved; 4) who has the right to do this; and 5) how does it affect the radio and television stations. She stated the committee has some concerns that need to be addressed and answered by the sponsor, not the committee. The bill could be brought up at the next meeting if that would give the sponsor enough time to investigate the concerns of the committee and it would also give the sponsor some time to contact the legal division. Number 0147 REPRESENTATIVE BERKOWITZ stated a couple of other issues need to be addressed as well. Aside from the false and misleading issues not being parallel throughout, Section 2 relates solely to candidates, not initiatives, which is a retreat from the current Section 1. Section 1 covers election propositions or questions, so he feels they are retreating. He said people can tell lies about propositions or initiatives without any consequence, which he feels is a retreat. CHAIR JAMES told Representative Berkowitz he is right on point asking, "Who are we trying to protect? Are we trying to protect the candidate or are we trying to protect the public to be able to make a good decision?" She stated she feels the public is being offended because they are given information that is not true and then are making a decision based on false information, therefore, they may not be making the decision they would be making if they had the truth. "It seems to me the public is the one we're trying to protect here." The candidate just happens to be in this process. REPRESENTATIVE BERKOWITZ referred to Section 2 stating a candidate can complain only if their honestly, integrity, or qualifications are challenged, not because someone misrepresents their position on an issue. He pointed out a candidate has no way of pursuing that under this bill. Number 0249 REPRESENTATIVE DYSON inquired what would happen if the losing candidate contested an election based on false campaign information. He asked if that would fall under the Lt. Governor's purview. MR. CARTER said he believes it does. REPRESENTATIVE DYSON asked if that would also fall under the Elections Commission. MR. CARTER answered correct. REPRESENTATIVE DYSON asked what the Election Commission process is. He stated he suspects it is all prescribed. MR. CARTER replied it is prescribed but he could not speak in regard to the actual procedure behind it. Mr. 0272 CHAIR JAMES asked Mr. Carter how he wants to proceed on this legislation. MR. CARTER said he would be happy to investigate the issues brought forth by the committee as well as discuss them with the legal division. He indicated the original intent of the bill is to protect a person on more of a personal level while they are campaigning, and also to increase the penalty to a class C felony. Number 0295 CHAIR JAMES suggested Mr. Carter contact the bill sponsor and ask if he wants HB 466 assigned to a subcommittee. ADJOURNMENT Number 0320 CHAIR JAMES adjourned the House State Affairs Standing Committee meeting at 11:10 a.m.