SENATE STATE AFFAIRS COMMITTEE January 21, 1994 9:05 a.m. MEMBERS PRESENT Senator Loren Leman, Chair Senator Robin Taylor Senator Johnny Ellis Senator Jim Duncan MEMBERS ABSENT Senator Mike Miller COMMITTEE CALENDAR SPONSOR SUBSTITUTE FOR SENATE JOINT RESOLUTION NO. 2 Proposing an amendment to the Constitution of the State of Alaska relating to the rights of victims of crimes and to penal administration. SENATE JOINT RESOLUTION NO. 39 Proposing an amendment to the Constitution of the State of Alaska to guarantee, in addition to the right of the people to keep and bear arms as approved by the voters at the time of ratification of the state Constitution, that the individual right to keep and bear arms shall not be denied or infringed by the state or a political subdivision of the state. SENATE BILL NO. 33 "An Act relating to grants for local emergency planning committees and emergency response organizations; and providing for an effective date." PREVIOUS SENATE COMMITTEE ACTION SJR 2 - No previous senate committee action. SJR 39 - No previous senate committee action. SB 33 - See Community & Regional Affairs minutes dated 2/23/93 and State Affairs minutes dated 3/3/93, 3/31/93, 11/29/93, 1/19/94. WITNESS REGISTER Senator Dave Donley State Capitol, Juneau, AK 99801-1182¶465-3892 POSITION STATEMENT: prime sponsor of SJR 2 Margo Knuth Criminal Division, Department of Law P.O. Box 110300, Juneau, AK 99811-0300¶465-4049 POSITION STATEMENT: testified on SJR 2 Janice Lienhart Victims for Justice 619 E. 5th, Ave., Anchorage, AK ¶278-0977 POSITION STATEMENT: in favor of SJR 2 Charles McKee 1508 W. 3rd Ave., #7, Anchorage, AK 99503¶ POSITION STATEMENT: testified on SJR 2 & SJR 39 Annette Kreitzer Staff to Senator Leman State Capitol, Juneau, AK 99801-1182¶465-2095 POSITION STATEMENT: prime sponsor of SB 33 Mike Conway SPAR Director, Department of Environmental Conservation 410 Willoughby Ave., Juneau, AK 99801-1795¶465-5250 POSITION STATEMENT: in favor of SB 33 Duane Udland Anchorage Police Chief 4501 S. Bragaw, Anchorage, AK¶286-8552 POSITION STATEMENT: testified on SJR 39 Portia Babcock Staff, Senate State Affairs Committee State Capitol, Juneau, AK 99801-1182¶465-2095 POSITION STATEMENT: prime sponsor of SJR 39 Ray Advik P.O. Box 369, Gakona, AK 99586¶822-3151 POSITION STATEMENT: in favor of SJR 39 Dan Puritte Box 142, Gakona, AK 99586¶822-3151 POSITION STATEMENT: in favor of SJR 39 Jim Frey Sr. SR Box 360, Gakona, AK 99586¶822-3019 POSITION STATEMENT: in favor of SJR 39 Richard Bishop Outdoor Council 1555 Gus's Grind, Fairbanks, AK 99709¶455-6151 POSITION STATEMENT: in favor of SJR 39 Don Duncan Licensed Guide Outfitter 299 Alvin Street, Fairbanks, AK 99712¶457-8313 POSITION STATEMENT: in favor of SJR 39 Mark Chryson Gun Owners of America 2140 Wolverine Circle, Wasilla, AK 99654¶376-8285 POSITION STATEMENT: in favor of SJR 39 Joe Murdy Anchorage Assembly Member 1904 W. 46th Ave., Anchorage, AK ¶248-4143 POSITION STATEMENT: testified on SJR 39 Fred Heinz P.O. Box 125, Gakona, AK 99586¶822-3308 POSITION STATEMENT: in favor of SJR 39 ACTION NARRATIVE TAPE 94-2, SIDE A Number 001 CHAIRMAN LEMAN calls the Senate State Affairs Committee to order at 9:05 a.m. Number 003 CHAIRMAN LEMAN brings up SJR 2 as the first order of business before the committee today. The Chairman calls Senator Donley as the first witness. Number 027 SENATOR DONLEY, prime sponsor of SJR 2 states that SJR 2 will do two things: one, it will set out specific rights in the constitution of victims of crime; two, it will make changes regarding penal administration. Currently, penal administration guidelines list the principal of reformation and public safety as the basis for penal administration and do not specify which aspect of administration is more important. SJR 2 would list several other aspects for consideration in penal administration and would prioritize those aspects. Those aspects are, in order of importance: public safety, rights of victims, and the principal of reformation. Number 061 SENATOR DONLEY declared that to that list, he would like to add community condemnation of the offender as second in the order of importance. Number 070 CHAIRMAN LEMAN suggests also adding restitution to the previous list of aspects of penal administration. He suggests inserting it just before reformation. The list would be as follows: public safety, community condemnation of the offender, rights of victims, restitution, and the principal of reformation. Number 101 SENATOR DONLEY agrees with Chairman Leman regarding adding restitution as an aspect of penal administration. Number 112 CHAIRMAN LEMAN calls for the representative from the Department of Law to testify. Number 113 MARGO KNUTH, Criminal Division, Department of Law, announces that the Department of Law supports victim's rights but is concerned with the proposed constitutional amendment as it is currently drafted. The department believes the constitutional amendment would do three things, one of which it is in favor, the other two of which it is not in favor. The effect of the constitutional amendment the department favors would balance some of the constitutional rights the defendant has with rights of the state and rights of the victim. The aspects which the department is not in favor of are creating rights that victims would be able to enforce against prosecutors, and creating tort liability against the state when a failure in the process occurs. Ms. Knuth comments that she does not see the language where it is suggested restitution be inserted. Number 176 CHAIRMAN LEMAN notes that it has not been put in writing, but there is reference to it under (paragraph) 8, page two. He proposes that it be inserted in (page 1, section 1) line nine (or ten). He asks whether Ms. Knuth is able to comment on the insertion. Number 196 MS. KNUTH replies that she would appreciate the chance to think about the insertion before commenting. She is aware that Representative Porter has legislation that intends to reorder the criteria also, and she would like to examine his legislation before commenting. Number 200 SENATOR ELLIS asks Senator Donley if victim's rights under this legislation will take affect after the defendant has been convicted, or if it will take affect during the prosecution. Number 220 SENATOR DONLEY responds the victim's rights will be in effect throughout the process. He thinks it might be advisable to take out the penal administration reference in the constitution so it will apply to the entire criminal justice system. His understanding is the legislation will affect sentencing through the end of the defendant's probation or parole term. Number 233 SENATOR TAYLOR asks Senator Donley where the trigger is, where these rights would begin. Is it after conviction or before conviction? Number 241 SENATOR DONLEY replies that the rights set forth in section two would apply throughout the criminal justice process, while section one would apply after sentencing of the defendant. Number 254 CHAIRMAN LEMAN suggests that members think about and discuss the legislation and be prepared to decide by Wednesday morning on language changes that might clarify what part of the criminal justice process SJR 2 would affect. He then asks if Ms. Lienhart is ready to testify from Anchorage. Number 263 JANICE LIENHART, Victim's for Justice, says she is grateful for the support on SJR 2 from Senator Leman and Senator Donley. She states that it is traumatic for victims to realize that there are laws to protect defendants, but not very much protection for victims. The victim's rights movement is working to get laws passed to give victims equal rights to defendants. Victims deserve equal rights under the constitution. Number 296 CHAIRMAN LEMAN thanks Ms. Lienhart for her testimony and repeats the changes that have been suggested to the legislation. Number 314 SENATOR TAYLOR asks Ms. Knuth to what extent the notification of victims will fiscally affect the state. Number 326 MS. KNUTH replies that fiscal impact is a concern, in addition to the concern of increased liability to the state. The state cannot be a guarantor of safety. Number 350 MS. LIENHART comments that since victims are already being informed of their rights, she doesn't think it will add very much to the fiscal impact. Number 363 SENATOR TAYLOR asks Ms. Lienhart if she thinks it will cause a fiscal impact on the Department of Public Safety if the department is required to notify a victim every time there is a hearing on a specific case. He is concerned that department personnel would spend more time tracking down victims for notification, which would result in less personnel time being spent tracking down criminals. Number 379 SENATOR DONLEY thinks Senator Taylor has a good point and that the legislation should be amended so as to set out specific parameters regarding notification of victims. Number 328 CHAIRMAN LEMAN asks Senator Donley to work with Ms. Babcock and Ms. Knuth on language to accommodate the aforementioned concerns. Number 385 SENATOR DONLEY asks Senator Taylor if he thinks the format in SJR 2 is appropriate. Number 391 SENATOR TAYLOR thinks the format is clearer to list out the rights, one-by-one, rather than enclosed in a single paragraph. Number 394 CHAIRMAN LEMAN agrees that he thinks it is more clear to have the rights listed out, rather than in a single paragraph. He then asks Ms. Knuth if she will be able to join the committee for their meeting on Wednesday. Number 396 MS. KNUTH responds that she will be able to do so, and that if input from the Department of Law is desired on SJR 39 RIGHT TO KEEP AND BEAR ARMS, to contact Mr. Guinelli in the department. Number 400 CHAIRMAN LEMAN asks if there is anyone else who wishes to testify on SJR 2. He announces that SJR 2 will be held until Wednesday's meeting. Number 418 CHARLES MCKEE states he thinks victims of misdemeanors should also be included in victim's rights legislation. Number 440 CHAIRMAN LEMAN thanks Mr. McKee and announces that the committee will now hear SB 33. He calls Ms. Kreitzer to the witness stand. Number 450 SENATOR TAYLOR moves the adoption of CSSB 33(STA). There being no objection, CSSB 33(STA) is before the committee. Number 453 ANNETTE KREITZER, Staff to Senator Leman, outlines the changes between this version of CSSB 33 (STA) and the version before the committee on January 19, 1994. Language stating "an equal number of representatives" has been deleted. This language would have required, as an example, five elected local officials, five broadcast or print-media persons, five persons from community groups, etcetera. Number 466 CHAIRMAN LEMAN interjects it is his understanding that the guidelines are still consistent with SARA Title III. Number 467 MS. KREITZER confirms that the guidelines are still consistent with SARA Title III. She states that the second amendment is on page 7, lines 14 to 17, which clarifies that when positions on LEPC's have been advertised and the LEPC's are still unable to fill that position, the LEPC will still be able to function. Ms. Kreitzer notes that an unnecessary repealer has been deleted under AS 46.04.200(b)(5). Number 491 SENATOR ELLIS asks Ms. Kreitzer to review the repealers. Number 492 CHAIRMAN LEMAN notes that there is a list of repealers under section 21. Number 495 MS. KREITZER reads the list of repealers under section 21 set forth in the sponsor's sectional analysis. Number 503 SENATOR ELLIS asks Ms. Kreitzer about the term "all hazards commission". Number 508 MS. KREITZER replies that the term "all hazards commission" refers to SERC becoming a planning commission for all disasters. SERC cannot do that without statutory authority, so that is why that language is in the bill. It is not federal terminology, but SERC's own terminology. Number 515 SENATOR ELLIS asks Ms. Kreitzer if the use of the term "all hazards commission" would make federal funds available for disaster planning. Number 516 MS. KREITZER responds that she would have to defer to DMVA on that question. Number 519 SENATOR ELLIS withdraws his question, commenting it would appear that the new language would be a net gain, rather than a net loss. He then asks if Ms. Kreitzer would explain the grounds for the decision of responsibility reverting to the state in cases where local groups choose not to plan for emergencies. He fears that local areas with budget constraints would give over emergency planning responsibilities to the state in order to save money. Number 527 MS. KREITZER replies that those points were addressed in the SERC task force report of September 1993, which recommended that local advisory committees still have input into response plans. Funding constraints are the reason LEPC's are given a choice of having anywhere from five to thirteen members. The LEPC's recognize that there is no guaranteed funding for emergency planning. Number 531 CHAIRMAN LEMAN notes he served on the Anchorage LEPC for some time and had exposure to what other LEPC's were doing, and he found that communities do want involvement in emergency planning. Number 559 SENATOR ELLIS asks what the guarantee is that communities won't hand the responsibility of emergency planning over to the state if they have that option, and how could a community better plan for emergencies than could an experienced planner. Number 560 CHAIRMAN LEMAN responds that persons within a community generally have better knowledge regarding the needs of their particular community than would a trained planner, although a trained planner is certainly necessary also. Number 567 SENATOR TAYLOR comments that Senator Ellis raised a good point regarding how LEPC's will be funded for work on local emergency plans. Senator Taylor questions whether the 470 fund will be available for funding LEPC's in their establishment of emergency plans, and if that was the intention of the legislation. Number 579 MS. KREITZER replies that DEC administers the 470 fund. TAPE 94-2, SIDE B Number 579 MS. KREITZER believes that it is intended for funding to pass through political subdivisions as pass-through funding to the LEPC's. She states Senator Taylor is correct in his assumption that 470 fund monies will be available. Number 576 SENATOR TAYLOR voices an additional concern that the legislation will change the policy of establishing and maintaining response corps and response depots. Number 567 MS. KREITZER responds that the language Senator Taylor is concerned with would have the effect of clarifying that hazardous substance release equipment depots and emergency planning committee depots should be coordinated so that there is no duplication of effort. But oil and hazardous substance depots would be paid for out of the 470 fund, though emergency response depots would not be paid for out of the 470 fund. Ms. Kreitzer points out to Senator Taylor language in the legislation on page sixteen stating that DEC and DMVA coordinate their efforts so that there will be no duplication of services. Number 547 SENATOR TAYLOR reconfirms that there will be no duplication of effort between DEC and DMVA. He expresses pleasure that the 470 fund will be used for what it was originally set up to do and that the state is now worrying about taking care of people, rather than just taking care of oil on a rock. Number 542 CHAIRMAN LEMAN asks Mr. Conway if he would like to add anything to the discussion. Number 536 SENATOR TAYLOR asks Ms. Kreitzer if there is a provision for immunity in CSSB 33(STA). Ms. Kreitzer responds that immunity is provided for in SB 35. Number 533 MIKE CONWAY, SPAR, Department of Environmental Conservation, says currently SERC and the LEPC's are oil and hazardous substance by statute. Many communities in rural areas do not have an interest in oil and hazardous substance releases. This may change if SERC and LEPC's become "all hazards" response organizations. Another problem for very small communities is they may not have available people to fill all the positions that SARA Title III requires on a committee. Additionally, communities not able to establish LEPC's can still form local advisory committees in order to have input in establishing emergency response plans. SERC and LEPC's would be authorized to receive response fund monies from the 470 fund, however, activities must be response fund eligible in order to receive those funds. So a portion of SERC and LEPC activities could be funded from the 470 fund. However, in areas not connected to oil and hazardous substances there will need to be other funding sources to cover those areas. Mr. Conway finishes by noting that the depot corps funding language pertains to "all hazards" or disasters. Number 490 CHAIRMAN LEMAN thanks Mr. Conway for his comments and asks if anyone else wishes to testify on SB 33. Hearing none, he asks the pleasure of the committee. Number 489 SENATOR TAYLOR motions CSSB 33(CRA) be moved from committee with individual recommendations. Number 487 CHAIRMAN LEMAN, hearing no objections, discharges SB 33 from the State Affairs Committee with individual recommendations. Number 483 CHAIRMAN LEMAN brings up SJR 39 RIGHT TO KEEP AND BEAR ARMS, and thanks those waiting for SJR 39 for their patience. He then provides an update on the history of the issue during this legislature. The Chairman then calls the first witness. Number 463 DUANE UDLAND, Deputy Chief of Police, Anchorage Police Department, states that the position of law enforcement personnel is generally not opposed to the individual right to keep and bear arms. He wonders why it is necessary to have the right to keep and bear arms in the state constitution, and thinks there is plenty of protection in the constitution and in statute already. He then lists a number of protections already in law. Number 425 MR. UDLAND says that police have a deep concern over the effects the amendment will have in the context of the state constitution. If the constitution is changed, it must be carefully worded. He believes that SJR 1 better answers the concerns of law enforcement and is disappointed that SJR 1 is being rejected in favor of SJR 39. He is concerned that a constitutional amendment would limit the ability of municipalities and the legislature to pass reasonable laws regulating firearms that are necessary to protect the public. Number 376 SENATOR TAYLOR states that the U.S is facing a flood of weapons misuse, of which he wouldn't have been able to conceive twenty years ago. He comments that perhaps everyone should be armed in order to protect themselves and asks Mr. Udland to respond to this problem. Number 332 MR. UDLAND replies that there is no question that violence in this country is on the increase, but he does not see a solution to the problem in a constitutional amendment. He questions whether, within the issue of a constitutional amendment, there is a hidden agenda to allow concealed firearms. He does think municipalities should have the option of regulating concealed weapons. Mr. Udland is also concerned that if the language in SJR 39 is too strict, the courts will strike down any law regulating possession of firearms. Number 285 CHAIRMAN LEMAN requests Portia Babcock, Aide to Senate State Affairs Committee, to make an opening statement on SJR 39. Number 273 PORTIA BABCOCK, Committee Aide, Senate State Affairs Committee states that the proposed language in SJR 39 is similar to language in other states. This legislation is being introduced to protect and insure the right to keep and bear arms in the future. It is not intended to change anything today, or to abrogate any laws currently on the books. An applicable Alaska Supreme Court case relating to the right to keep and bear arms is the Weaver Case, which stated that an Alaskan may not possess a switch blade or gravity knife in their own home because it is a public safety hazard and is easily concealed and quickly brought to bear. In this case the constitution was anything but broadly interpreted. MS. BABCOCK continues, saying that case-law in other states has consistently upheld felony possession laws, juvenile possession laws, laws restricting access to persons under the influence of drugs and alcohol, and persons who have been judged to be mentally incompetent. Case law has consistently recognized that the right to keep and bear arms is not an absolute right. Number 218 SENATOR DONLEY states for the record that the proper judicial standard of review in terms of balancing firearms rights of individuals versus the protection of society, is a compelling public safety interest standard. Number 197 CHAIRMAN LEMAN thanks Senator Donley for his comment and calls the next witness. Number 188 RAY ADVIK, testifying from Meier's Lake, feels that the state has a role in protecting the right to keep and bear arms. Number 183 DAN PURITTE, testifying from Meier's Lake, states he believes the federal government is doing everything it can to take away our freedom, our rights, and our guns. It is important that the State of Alaska stand up and commit itself one way or the other. Number 169 JIM FREY, SR., testifying from Slana, is in favor of SJR 39. He also favors capital punishment and says that if the state doesn't implement capital punishment soon, we will have to start doing it ourselves. Number 150 RICHARD BISHOP, Alaska Outdoor Council, testifying from Fairbanks, states that he and the council strongly support SJR 39, though the council has not taken formal action in support of the bill. He urges passage of SJR 39. Number 127 DON DUNCAN, registered guide-outfitter, testifying from Fairbanks, strongly supports SJR 39 and asks a few rhetorical questions regarding fire arms. One question Mr. Duncan poses is if he would be considered a criminal for having a loaded gun in his truck as he drives by a school on the way out of town to hunt. He believes that the fewer restrictive gun laws there are, the less crime we will have. Number 127 SENATOR DONLEY clarifies for Mr. Duncan that if your gun is encased while driving by a school, you are not breaking any law. Number 028 CHAIRMAN LEMAN announces that the committee will not be able to accommodate everyone wishing to testify and that he intends to move SJR 39 out of committee today. He then asks if there is anyone on line who has a statement to make in opposition of SJR 39. The chairman announces that anyone signed up to testify who does not respond in opposition to SJR 39 will be recorded as being in support of SJR 39. Number 003 MARK CHRYSON, Field Representative for Gun Owners of America, testifying from Kodiak, says that he is not opposed to SJR 39. TAPE 94-3, SIDE A Number 001 MR. CHRYSON says he is opposed to keeping the issue of the right to keep and bear arms off the ballot. He thinks that the right to keep and bear arms is a partisan issue and asks the legislature not to water down this legislation. Number 031 CHAIRMAN LEMAN thanks Mr. Chryson for his testimony and comments he does not think the right to keep and bear arms is a partisan issue and the release of this bill from committee is dependent upon a democrat. Number 035 SENATOR DUNCAN says not to count on it (laughter all around). Number 051 CHARLES MCKEE, testifying from Anchorage, says he represents the treasury and that he gave documentation to the Bureau of Alcohol, Tobacco, and Firearms. Number 069 JOE MURDY, Anchorage Assembly Member, states he is testifying on his own behalf, not in representation of the Anchorage Assembly. He supports the right to keep and bear arms, but is concerned that local governments might no longer have control over weapons within city limits. Number 091 CHAIRMAN LEMAN advises Mr. Murdy that SJR 39 will not restrict municipalities from dealing with appropriate local restrictions on firearms. Number 095 SENATOR TAYLOR mentions that Senator Donley noted earlier in the committee meeting that there was a particular standard that should be placed on the record as a concern: that standard was one of public safety. Senator Donley said, "...the proper judicial standard of review in terms of balancing firearms rights of individuals versus the protection of society is a compelling public safety interest standard." Senator Taylor wants to state for the record and stress that it is this standard of public safety which should be applied in regards to the intent of SJR 39. He states again that it is the intent of the committee that a standard of compelling public safety interest will allow municipalities and the state to continue to pass laws regarding appropriate restrictions on the right to keep and bear arms, even with a constitutional amendment protecting the right to keep and bear arms. Senator Taylor does not think that SJR 39 will restrict, in any way, the ability to pass laws regulating firearms where a public safety concern exists. Number 131 MR. MURDY states that his only concern is that the legislation not restrict the ability of municipalities and the state to pass future laws regulating firearms where a public safety concern exists. Number 142 CHAIRMAN LEMAN restates that it is not his intent to restrict the passage of laws regulating firearms where there is a concern of public safety. He views SJR 39 as a clarification of existing constitutional provisions relating to the right to keep and bear arms. There is a concern that current constitutional law could be interpreted as a collective right to bear arms and not an individual right. This would clarify the right to keep and bear arms as an individual right. The Chairman asks if there is anyone else on teleconference or in Juneau who feels they must testify on SJR 39. Number 164 FREDERICK HEINZ, testifying from Glennallen, states he disagrees with Mr. Murdy regarding municipalities being able to pass laws regulating firearms where a public safety concern exists. Mr. Heinz interprets the constitution literally and believes it is unconstitutional to restrict firearms in any manner. Number 177 SENATOR TAYLOR makes a motion to discharge SJR 39 from the Senate State Affairs Committee with individual recommendations. Number 180 CHAIRMAN LEMAN, hearing no objection, discharges SJR 39 from the Senate State Affairs Committee with individual recommendations. Number 180 CHAIRMAN LEMAN announces that the agenda for Wednesday, January 26, 1994 is SB 253 REAPPLICATION PERIOD FOR 1993 PF DIVIDEND, SB 170 DISPOSITION OF PERMANENT FUND INCOME, SJR 38 RESTRUCTURE PERMANENT FUND, and bills previously heard. Number 183 CHAIRMAN LEMAN adjourns the meeting at 10:50 a.m.