Legislature(2011 - 2012)CAPITOL 106
04/12/2011 08:00 AM House STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| SB93 | |
| HB216 | |
| HB182 | |
| HB190 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 93 | TELECONFERENCED | |
| += | HB 182 | TELECONFERENCED | |
| *+ | HB 216 | TELECONFERENCED | |
| += | HB 190 | TELECONFERENCED | |
| *+ | HB 77 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE STATE AFFAIRS STANDING COMMITTEE
April 12, 2011
8:08 a.m.
MEMBERS PRESENT
Representative Bob Lynn, Chair
Representative Wes Keller, Vice Chair
Representative Paul Seaton
Representative Peggy Wilson
Representative Max Gruenberg
Representative Pete Petersen
Representative Kyle Johansen
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
SENATE BILL NO. 93
"An Act relating to special request specialty organization
registration plates; and providing for an effective date."
- MOVED HCS SB 93(STA) OUT OF COMMITTEE
HOUSE BILL NO. 216
"An Act relating to deadlines in bills directing the adoption of
regulations and to the informative summary required for the
proposed adoption, amendment, or repeal of a regulation."
- HEARD & HELD
HOUSE BILL NO. 182
"An Act relating to distribution of annual reports by state
agencies."
- HEARD & HELD
HOUSE BILL NO. 190
"An Act relating to the allowable absence for active duty
service members of the armed forces for purposes of permanent
fund dividend eligibility."
- HEARD & HELD
HOUSE BILL NO. 77
"An Act establishing a top two nonpartisan blanket primary
election system for elective state executive and state and
national legislative offices; changing appointment procedures
relating to precinct watchers and members of precinct election
boards, election district absentee and questioned ballot
counting boards, and the Alaska Public Offices Commission;
requiring certain written notices to appear in election
pamphlets and polling places; relating to declarations of
candidacy and letters of intent; and amending the definition of
'political party.'"
- SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: SB 93
SHORT TITLE: SPECIALTY LICENSE PLATES
SPONSOR(s): STATE AFFAIRS
02/21/11 (S) READ THE FIRST TIME - REFERRALS
02/21/11 (S) STA, TRA
02/22/11 (S) STA AT 9:00 AM BUTROVICH 205
02/22/11 (S) Heard & Held
02/22/11 (S) MINUTE(STA)
03/01/11 (S) STA RPT 2DP 2NR
03/01/11 (S) DP: WIELECHOWSKI, PASKVAN
03/01/11 (S) NR: GIESSEL, MEYER
03/01/11 (S) STA AT 9:00 AM BUTROVICH 205
03/01/11 (S) Moved SB 93 Out of Committee
03/01/11 (S) MINUTE(STA)
03/15/11 (S) TRA AT 1:00 PM BUTROVICH 205
03/15/11 (S) Moved SB 93 Out of Committee
03/15/11 (S) MINUTE(TRA)
03/16/11 (S) TRA RPT 3DP 2NR
03/16/11 (S) DP: KOOKESH, MENARD, THOMAS
03/16/11 (S) NR: HUGGINS, EGAN
03/21/11 (S) TRANSMITTED TO (H)
03/21/11 (S) VERSION: SB 93
03/23/11 (H) READ THE FIRST TIME - REFERRALS
03/23/11 (H) STA, FIN
04/05/11 (H) STA AT 8:00 AM CAPITOL 106
04/05/11 (H) Scheduled But Not Heard
04/07/11 (H) STA AT 8:00 AM CAPITOL 106
04/07/11 (H) Heard & Held
04/07/11 (H) MINUTE(STA)
04/12/11 (H) STA AT 8:00 AM CAPITOL 106
BILL: HB 216
SHORT TITLE: REGULATIONS: INFORMATIVE SUMMARY/BILLS
SPONSOR(s): P.WILSON
03/30/11 (H) READ THE FIRST TIME - REFERRALS
03/30/11 (H) STA, JUD
04/12/11 (H) STA AT 8:00 AM CAPITOL 106
BILL: HB 182
SHORT TITLE: ELECTRONIC DISTRIBUTION OF AGENCY REPORTS
SPONSOR(s): JOHANSEN
03/09/11 (H) READ THE FIRST TIME - REFERRALS
03/09/11 (H) STA, FIN
03/29/11 (H) STA AT 8:00 AM CAPITOL 106
03/29/11 (H) Heard & Held
03/29/11 (H) MINUTE(STA)
04/12/11 (H) STA AT 8:00 AM CAPITOL 106
BILL: HB 190
SHORT TITLE: PFD ALLOWABLE ABSENCE: MILITARY
SPONSOR(s): FEIGE
03/11/11 (H) READ THE FIRST TIME - REFERRALS
03/11/11 (H) STA, FIN
03/31/11 (H) STA AT 8:00 AM CAPITOL 106
03/31/11 (H) Heard & Held
03/31/11 (H) MINUTE(STA)
04/12/11 (H) STA AT 8:00 AM CAPITOL 106
WITNESS REGISTER
NANCY MANLY, Staff
Representative Bob Lynn
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Explained the changes that were made in
Version I of SB 93.
SENATOR BILL WIELECHOWSKI
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented SB 93 on behalf of the Senate
State Affairs Committee, sponsor, on which Senator Wielechowski
is chair.
KARLA HART, Staff
Senator Bill Wielechowski
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Answered questions related to SB 93 on
behalf of the Senate State Affairs Standing Committee, sponsor,
of which Senator Wielechowski is chair.
JEFFREY A. MITTMAN, Executive Director
American Civil Liberties Union of Alaska (ACLU of Alaska)
Anchorage, Alaska
POSITION STATEMENT: Discussed the constitutionality of Version
I, during the hearing on SB 93.
WHITNEY BREWSTER, Director
Division of Motor Vehicles (DMV)
Department of Administration
Anchorage, Alaska
POSITION STATEMENT: Answered questions during the hearing on SB
93.
WARD HURLBURT, Director and Chief Medical Officer
Division of Public Health
Department of Health & Social Services
Anchorage, Alaska
POSITION STATEMENT: Provided comment during the hearing on HB
216.
REPRESENTATIVE ERIC FEIGE
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 190 as sponsor.
MICHAEL PASCHALL, Staff
Representative Eric Feige
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Answered questions during the hearing on HB
190, on behalf of Representative Feige, sponsor.
DAN BRANCH, Senior Assistant Attorney General
Commercial/Fair Business Section
Civil Division (Juneau)
Department of Law
Juneau, Alaska
POSITION STATEMENT: Testified during the hearing on HB 190.
ACTION NARRATIVE
8:08:45 AM
CHAIR BOB LYNN called the House State Affairs Standing Committee
meeting to order at 8:08 a.m. Representatives Keller, Seaton,
P. Wilson, Petersen, Gruenberg, and Lynn were present at the
call to order. Representative Johansen arrived as the meeting
was in progress.
SB 93-SPECIALTY LICENSE PLATES
8:08:59 AM
CHAIR LYNN announced that the first order of business was SENATE
BILL NO. 93, "An Act relating to special request specialty
organization registration plates; and providing for an effective
date."
8:10:12 AM
REPRESENTATIVE KELLER moved to adopt the proposed House
committee substitute (HCS) for SB 93, Version 27-LS0515\I,
Luckhaupt, 3/30/11, as a work draft.
REPRESENTATIVE GRUENBERG objected for the purpose of discussion.
8:10:34 AM
NANCY MANLY, Staff, Representative Bob Lynn, Alaska State
Legislature, explained the changes that were made in Version I
of SB 93. She stated that in addition to adopting the bill
sponsor's plan to give the Division of Motor Vehicles (DMV) the
authority to issue specialty license plates, Version D would
also create specialty license plates for the National Rifle
Association, breast cancer awareness, Lao veterans, and plates
depicting "In God We Trust" and "Choose Life."
8:11:23 AM
REPRESENTATIVE SEATON asked if, other than the addition of the
specific specialty license plates, there would be any changes
made to the original bill version.
CHAIR LYNN offered his understanding that there would be no
change within the original bill language.
8:12:18 AM
SENATOR BILL WIELECHOWSKI, Alaska State Legislature, presented
SB 93 on behalf of the Senate State Affairs Standing Committee,
sponsor, on which Senator Wielechowski is chair. He expressed
concern regarding the language in Version I proposing a
specialty plate for "choose life." He explained that courts
have traditionally upheld that when one viewpoint is supported,
the opposing viewpoint must also be supported. He said he has
been told there are some organizations that may file a law suit
if there is a "choose life" license plate without there also
being a specialty plate for Planned Parenthood. In regard to
Representative Seaton's previous question, he said it does not
look like any of the original language in the bill has been
altered.
8:14:22 AM
CHAIR LYNN stated his understanding that under SB 93, any group
that is not included could go to the division and request a
specialty license plate of their choosing.
SENATOR WIELECHOWSKI confirmed that is correct, but said there
are those who would maintain that [Version I] is
unconstitutional.
8:16:15 AM
REPRESENTATIVE GRUENBERG observed that if the committee chooses
to remove the language in the bill pertaining to "choose life,"
it would need to delete lines 7-14, on page 4, and lines 7-12,
on page 2.
SENATOR WIELECHOWSKI confirmed that is correct.
8:16:47 AM
REPRESENTATIVE P. WILSON said she does not understand where the
complaint could be if everyone will be allowed to have a plate
of their choosing.
SENATOR WIELECHOWSKI said there have been cases around the
country to this effect.
REPRESENTATIVE P. WILSON reiterated that she does not understand
why a law suit would result when all along groups have had the
opportunity to request a specialty license plate through the
legislature and would, under SB 93, have the opportunity to do
so directly through the division.
8:18:22 AM
REPRESENTATIVE GRUENBERG said he has prepared an amendment, but
has not decided yet whether to offer it.
CHAIR LYNN said he does not want this bill hearing to turn into
a Planned Parenthood/right to life debate.
8:20:13 AM
KARLA HART, Staff, Representative Bill Wielechowski, Alaska
State Legislature, answered questions related to SB 93 on behalf
of the Senate State Affairs Standing Committee, sponsor, of
which Senator Wielechowski is chair. In response to
Representative Seaton, regarding the application fee that the
organization would charge for the setup, she clarified that
under SB 93, that cost is revenue neutral; there would be a fee
set to cover those setup charges. Under the current process,
she continued, the DMV absorbs the cost of the setup and
development of the specialty license plates.
REPRESENTATIVE SEATON asked for confirmation that that is the
only distinction.
MS. HART prefaced her answer by noting that she is not an
attorney. She pointed out one distinction is that legislatively
approved plates are considered a form of government speech,
whereas administratively approved plates appear to be a form of
private speech. She said she thinks there may be some
distinction there in terms of a court case. She further noted
that the courts have ruled differently in various states.
8:22:23 AM
REPRESENTATIVE GRUENBERG stated his understanding that other
plate designs would mean additional costs.
MS. HART clarified that the group supplying the design would
incur the cost.
8:23:12 AM
REPRESENTATIVE SEATON directed attention to language on page 3,
line 10, which requires a group to "submit registration fees for
at least 50 motor vehicles before specialty registration plates
will be issued". He said he may offer an amendment to lower
that threshold, because there may be smaller groups that desire
specialty license plates.
8:24:29 AM
REPRESENTATIVE GRUENBERG directed attention to page 3, line 12,
which read as follows:
(D) may not be offensive in purpose, nature,
activity, or name;
REPRESENTATIVE GRUENBERG expressed concern about the meaning of
offensive and whether this language may present constitutional
problems.
8:25:23 AM
SENATOR WIELECHOWSKI responded that there is a well-established
body of case law around the country to address this issue. In
response to a follow-up question, he confirmed that this
language is not unique to Alaska.
8:26:28 AM
MS. HART said Pennsylvania's model states that "the department
may refuse any combination of letters and numbers for cause and
shall adopt rules and regulations for the issuance of plates."
She said Pennsylvania's regulation addresses the issue of
offense and discriminatory content.
8:27:11 AM
REPRESENTATIVE KELLER said he would be proposing a sunset clause
so that the proposed legislation could undergo a trial period.
8:29:23 AM
JEFFREY A. MITTMAN, Executive Director, American Civil Liberties
Union of Alaska (ACLU of Alaska), stated that the ACLU does not
take a position for or against the State of Alaska having a
specialty license plate program. Furthermore, he said the ACLU
does not take a position on whether or not certain individuals
or organizations should be entitled to create plates. The ACLU
looks solely at constitutional issues. He cited Arizona Life
Coalition Inc. v. Stanton, 515 F.3d 956, a 9th Circuit Court of
Appeals case in which the court protected the rights of the
"Choose Life" organization to obtain a plate under Arizona's
license plate system. He said the ACLU would have similarly
represented the "Choose Life" organization.
MR. MITTMAN said [Version I] discriminates both in the matter of
process and content. Under Version I, if one person wanted to
obtain a National Rifle Association (NRA) plate, for example,
and nine individuals wanted to obtain a Brady handgun control
plate, the one individual could go down to the DMV and get the
NRA plate, whereas the nine individuals would not be given the
opportunity to get the Brady handgun control plate. He said
that is not only process discrimination, but also viewpoint
discrimination.
CHAIR LYNN suggested that under the original bill, those people
could go to the DMV and apply for "one of these other license
plates expressing a different viewpoint."
MR. MITTMAN responded that they could apply, but "if they didn't
meet the differential requirements that the process establishes
they could not be successful." He explained that Version I sets
out certain viewpoints to be more privileged than others, which
could be viewed by the court as discrimination. First Amendment
rights are so important that the courts are protective of them.
MR. MITTMAN stated that SB 93, as originally written, was
"perfectly neutral"; it set up one system for the entire state.
He stated, "It is our recommendation ... that ... all
organizations who have had any sort of bill be approved, and
that the legislature put in language that allows for approval."
He noted that SB 16, which passed through the Senate, allowed
for "pro-family" and "pro-choice"; therefore, it would be "part
of the legislative record in revealing whether or not the
legislature has been neutral in both process and concept."
8:34:17 AM
MR. MITTMAN, in response to Representative Gruenberg's concern
regarding the interpretation and constitutionality of the word
"offensive", said potentially that language could be an
opportunity for a government agency to deny language. However,
he stated, "We see this as a light yellow flag; it is something
that we'd watch, but we would not anticipate that it would be a
problem."
8:35:20 AM
CHAIR LYNN, after ascertaining that there was no one else who
wished to testify, closed public testimony.
REPRESENTATIVE GRUENBERG removed his objection to the motion to
adopt the proposed House committee substitute (HCS) for SB 93,
Version 27-LS0515\I, Luckhaupt, 3/30/11, as a work draft. There
being no further objection, Version I was before the committee.
8:35:38 AM
REPRESENTATIVE SEATON moved to adopt Amendment 1, as follows:
Page 3, line 10:
Change "50" to "10".
There being no objection, Amendment 1 was adopted.
8:36:06 AM
REPRESENTATIVE KELLER moved to adopt Conceptual Amendment 2, to
add a sunset clause on page 5 relating to subsection (gg) in
Section 1.
REPRESENTATIVE KELLER said he is concerned about [specialty
license plates being used much like] a bumper sticker. In
response to a question from the chair, he explained that
[subsection (gg)] is language in Version I that was also in the
original bill version. He noted that the date of the sunset
clause that would be added under Conceptual Amendment 2 would be
June 1, 2014.
8:38:21 AM
REPRESENTATIVE SEATON objected to Conceptual Amendment 2 for the
purpose of discussion. He said he does not see a problem which
necessitates an audit and sunset process.
REPRESENTATIVE KELLER stated his intent is to be cautious.
8:42:04 AM
WHITNEY BREWSTER, Director, Division of Motor Vehicles (DMV),
Department of Administration, stated that the DMV's regulations
have been helpful in determining how the division deals with
personalized license plates, and the division would use similar
language of that regulation in dealing with organizations
applying for a plate. She said if the proposed legislation
passes, her preference would be to receive feedback from the
legislature regarding the division's regulatory process. She
said she understands Representative Keller's concern that the
proposed legislation would give responsibility to the DMV to
determine which organizations are appropriate.
MS. BREWSTER said the DMV currently has an administrative
hearing process wherein someone who is denied a plate has the
opportunity to request an administrative hearing. If the person
does not agree with the hearing officer, he/she has the option
of appealing to the Alaska Superior Court. She ventured that
the process under SB 93 would be similar. She acknowledged that
these considerations do not address specifically Representative
Keller's concern that there might be "an Amway plate," for
example; however, she said the court has consistently stated
that the issue is one of free speech, and if specialty plates
were made available to 501c3 organizations, then the division
would have to seriously consider that issue when making a
determination.
REPRESENTATIVE KELLER acknowledged that Ms. Brewster shares his
concerns, and he reiterated his support for Conceptual Amendment
2.
8:46:17 AM
MS. BREWSTER, in response to Representative Petersen, related
that the division uses software that will catch most of the
inappropriate language submitted before a plate is issued;
however, some inappropriate requests slip through that
screening. She said the division denies 6-7 inappropriate
license applications a week, but few of those denials result in
a challenge, because the reason for the denial is obvious. She
estimated that the division holds one specialty plate hearing
per quarter. She incidentally reported that the DMV offers
fraternal organization plates established through statute last
session, but no one has applied for one to date. She noted that
that legislation was the first to open the door to various
entities requesting a plate not through the legislative process.
REPRESENTATIVE PETERSEN said it does not make sense that a
[501c3] organization would go to the trouble to make an indecent
license plate that would be turned down by the division.
MS. BREWSTER offered her understanding that Pennsylvania has
thus far had one plate that was questioned as being offensive;
however, she said she does not foresee this being a big issue in
Alaska. She reiterated that if the organization is denied a
plate, it has an avenue for appeal.
8:50:24 AM
REPRESENTATIVE KELLER, in response to Representative Gruenberg,
clarified that Conceptual Amendment 2 would place a sunset to
subsection (gg); it would not delete the section.
8:51:24 AM
REPRESENTATIVE JOHANSEN asked the bill sponsor what he thinks of
Conceptual Amendment 2.
SENATOR WIELECHOWSKI noted the short time period between the
effective date of the bill and the proposed date of the sunset.
8:52:03 AM
REPRESENTATIVE KELLER moved to amend Conceptual Amendment 2, to
change 2014 to 2015. There being no objection, the amendment to
Conceptual Amendment 2 was adopted.
SENATOR WIELECHOWSKI pointed out that the purpose of the bill is
to end the necessity for the legislature to address license
plate bills, and [Conceptual Amendment 2, as amended] will bring
the issue of license plates back before the legislature.
8:52:38 AM
REPRESENTATIVE SEATON maintained his objection to Conceptual
Amendment 2, as amended. He said if the legislation proves to
be problematic, the legislature can always choose to bring the
issue back for further discussion.
8:53:31 AM
A roll call vote was taken. Representatives Johansen, P.
Wilson, Keller, and Lynn voted in favor of Conceptual Amendment
2, as amended. Representatives Seaton, Gruenberg, and Petersen
voted against it. Therefore, Conceptual Amendment 2, as
amended, was adopted by a vote of 4-3.
8:54:15 AM
REPRESENTATIVE GRUENBERG asked the bill sponsor what he thought
- following Mr. Mittman's testimony - about removing the
language in the proposed legislation referring to "Alaska Choose
Life".
8:56:08 AM
SENATOR WIELECHOWSKI said he would support such an amendment,
because he thinks it would resolve the constitutional issues
that have been presented.
8:56:27 AM
REPRESENTATIVE GRUENBERG moved to adopt Conceptual Amendment 3,
as follows:
Page 2, lines 7-12:
Delete language
Page 4, lines 7-14:
Delete language
REPRESENTATIVE JOHANSEN objected.
REPRESENTATIVE SEATON said he does not support Conceptual
Amendment 3. He said specialty license plates currently are
established in state law and [under SB 93] would be managed
administratively, which would result in the existence of
specialized plates from two systems. He stated, "I don't think
looking at one particular plate overcomes two systems."
8:57:56 AM
REPRESENTATIVE JOHANSEN explained that he objects to
Representative Gruenberg's singling out the "Choose Life" plate
as articulating one point of view, and he said he would like to
express his point of view regarding the meaning of "Choose
Life".
8:58:54 AM
The committee took a brief at 8:59 a.m.
8:59:14 AM
REPRESENTATIVE JOHANSEN said he does not know what particular
point of view Representative Gruenberg is referring to, because
"Choose Life" could mean don't commit suicide. He indicated his
objection was to the characterization of "that statement as
something in particular" and the singling out of it when "there
are other portions of this bill that ... could fall under this
umbrella."
REPRESENTATIVE JOHANSEN maintained his objection.
9:00:42 AM
REPRESENTATIVE GRUENBERG said he thinks there is merit in some
points that have been made, and he said he would like to know
whether the bill sponsor maintains his support of Conceptual
Amendment 3.
SENATOR WIELECHOWSKI responded that he finds it ironic that he
introduced the original version of SB 93 as a means to end all
the time spent by the legislature in considering individual
specialized license plates and Version I introduces several
individual plates for the legislature to consider. He said as
an attorney, one of the first rules is to protect the client
from being sued, and there has been testimony that leaving
"Choose Life" in Version I would lead to a law suit against the
state; therefore, he said he would like "Choose Life" taken out
of the bill.
9:01:59 AM
REPRESENTATIVE GRUENBERG stated that he would maintain his
motion to adopt Conceptual Amendment 3 out of respect for the
bill sponsor.
9:02:13 AM
A roll call vote was taken. Representatives Petersen and
Gruenberg voted in favor of Conceptual Amendment 3.
Representatives Johansen, P. Wilson, Seaton, Keller, and Lynn
voted against it. Therefore, Conceptual Amendment 3 failed by a
vote of 2-5.
9:03:09 AM
REPRESENTATIVE KELLER moved to report the House committee
substitute (HCS) for SB 93, Version 27-LS0515\I, Luckhaupt,
3/30/11, as amended, out of committee with individual
recommendations and the accompanying fiscal notes. There being
no objection, HCS SB 93(STA) was reported out of the House State
Affairs Standing Committee.
HB 216-REGULATIONS: INFORMATIVE SUMMARY/BILLS
9:03:57 AM
CHAIR LYNN announced that the next order of business was HOUSE
BILL NO. 216, "An Act relating to deadlines in bills directing
the adoption of regulations and to the informative summary
required for the proposed adoption, amendment, or repeal of a
regulation."
9:04:36 AM
The committee took a one-minute at-ease.
9:05:36 AM
REPRESENTATIVE P. WILSON presented HB 216 as sponsor. She said
the bill would address two problems related to changes in state
regulations: the slow manner in which regulations are sometimes
implemented and the confusing language of regulations.
9:07:26 AM
REPRESENTATIVE P. WILSON said Section 1 of the proposed
legislation would require that the legislature set up a time to
have regulations completed and ready to implement. She said
this information is important to legislators when deciding when
to set the effective date of proposed legislation. Section 2,
she noted, would require agencies to provide descriptive
summaries of proposed changes to regulations. She said this
will help legislators to better understand the proposed changes,
as well as aid in the public's understanding of those changes,
thereby increasing the public's participation in government
process. She said the descriptions need not be lengthy and
would not be legally binding.
REPRESENTATIVE P. WILSON pointed to a note [included in the
committee packet] from Theresa Bannister of Legislative Legal
and Research Services. Representative P. Wilson said that based
on Ms. Bannister's comments, she realizes that the courts are
unlikely to void a bill for violating the requirements under HB
216, and amendments may be necessary to make the proposed
legislation more viable. However, she expressed her belief that
there is a great need for improvement in the legislative
process, which is the intent of HB 216. She said she open to
suggestions from the committee.
9:10:05 AM
REPRESENTATIVE JOHANSEN expressed appreciation to Representative
P. Wilson for bringing the proposed legislation forward, but
said he thinks a lot of discussion would be required to address
issues including the timeline of public process, the
complexities of implementing statute, and the difficulty
departments have in implementing initiatives.
9:11:41 AM
REPRESENTATIVE KELLER thanked Representative P. Wilson for
sponsoring HB 216, concurred with Representative Johansen that
the bill needs further consideration, and offered to help the
sponsor with the legislation over the interim.
9:12:30 AM
REPRESENTATIVE GRUENBERG mentioned a proposed bill heard a few
weeks ago regarding the waiver of attorney client privilege, and
said there had been discussion about how rule making under the
Administrative Procedure Act (APA) is working. He said he
thinks "that would be a ... good project for this committee in
the interim." He asked Representative P. Wilson if she would
allow HB 216 to be used as a vehicle in considering any
necessary changes to the rule-making process.
REPRESENTATIVE P. WILSON answered yes.
9:13:57 AM
REPRESENTATIVE PETERSEN said he likes the concept of HB 216, but
expressed concern about the subjective nature of ["easily
readable language that a person without a legal background is
able to understand" - page 2, lines 6-7].
9:14:24 AM
REPRESENTATIVE P. WILSON noted that the sponsor statement
singles out the Department of Health & Social Services in the
example given of the length of time taken to adopt a regulation.
She emphasized that her intent had not been to insult that
entity, and said she would revise the sponsor statement.
9:15:54 AM
WARD HURLBURT, Director and Chief Medical Officer, Division of
Public Health, Department of Health & Social Services, in
response to the bill sponsor, related that the department had
failed to expeditiously publish regulations following the
passage of House Bill 277. He assured the committee that the
department takes its responsibilities seriously, and he said he
would help to ensure such a lapse does not recur. He added that
the department has no official position regarding HB 216.
9:17:57 AM
CHAIR LYNN, after ascertaining that there was no one else who
wished to testify, closed public testimony.
9:18:18 AM
REPRESENTATIVE SEATON said this is an important issue, and he
expressed his appreciation that the committee is addressing it.
[HB 216 was held over.]
HB 182-ELECTRONIC DISTRIBUTION OF AGENCY REPORTS
9:18:47 AM
CHAIR LYNN announced that the next order of business was HOUSE
BILL NO. 182, "An Act relating to distribution of annual reports
by state agencies."
REPRESENTATIVE JOHANSEN, as sponsor, reported that he is working
on a committee substitute and is responding to feedback
regarding the need for clarification. He said he plans to work
on the bill during the interim and hopes it will be heard again
at the start of session in January 2012.
REPRESENTATIVE KELLER opined that [HB 182] is a good bill.
[HB 182 was held over.]
HB 190-PFD ALLOWABLE ABSENCE: MILITARY
9:19:39 AM
CHAIR LYNN announced that the last order of business was HOUSE
BILL NO. 190, "An Act relating to the allowable absence for
active duty service members of the armed forces for purposes of
permanent fund dividend eligibility."
9:20:11 AM
The committee took an at-ease from 9:20 a.m. to 9:22 a.m.
9:23:24 AM
REPRESENTATIVE ERIC FEIGE, Alaska State Legislature, presented
HB 190 as sponsor.
9:23:46 AM
The committee took a brief at-ease.
9:24:29 AM
REPRESENTATIVE GRUENBERG removed his objection, which was left
pending on 3/3/11, to the motion to adopt the proposed committee
substitute (CS) for HB 190, Version 27-LS0564\D, Kirsch,
3/28/11, as a work draft. There being no further objection,
Version D before the committee.
9:25:03 AM
REPRESENTATIVE FEIGE said the main change incorporated into
Version D is in language on page 2, lines 1-5. He said that
language accounts for individuals who began receiving the
permanent fund dividend (PFD) as dependents, left the state as
dependents of active duty military members, and later joined the
military. In the original bill version, the people in that
category would have been eligible for the PFD, even though they
had not really satisfied the intent of the bill, which is to
cover those who are Alaska residents when inducted into the
military.
9:26:54 AM
REPRESENTATIVE GRUENBERG moved to adopt Amendment 1, labeled 27-
LS0564\D.1, Kirsch, 4/4/11, which read as follows [original
punctuation provided]:
Page 2, following line 5:
Insert a new bill section to read:
"* Sec. 2. The uncodified law of the State of
Alaska is amended by adding a new section to read:
PERMANENT FUND DIVIDEND APPLICATIONS.
Notwithstanding permanent fund dividend application
procedures or deadlines, an individual who qualifies
for a dividend for 2009, 2010, or 2011 because of the
amendment to AS 43.23.008(c) made in sec. 1 of this
Act, may apply for the dividend by January 1, 2015.
The Department of Revenue shall prepare a form for
applications under this section."
Renumber the following bill section accordingly.
Page 2, following line 11:
Insert a new bill section to read:
"* Sec. 4. The uncodified law of the State of
Alaska is amended by adding a new section to read:
RETROACTIVITY. Section 1 of this Act is
retroactive to January 1, 2009."
REPRESENTATIVE JOHANSEN objected.
REPRESENTATIVE GRUENBERG spoke to Amendment 1. He offered his
understanding that during the last hearing on HB 190, the
committee heard two members of the military testify that they
had not been able to obtain dividends for 2009 and 2010 because
they were "caught in this gap." He asked how many people would
be covered by Amendment 1.
9:28:13 AM
MICHAEL PASCHALL, Staff, Representative Eric Feige, Alaska State
Legislature, on behalf of Representative Feige, estimated that
less than 100 people would be affected by Amendment 1.
REPRESENTATIVE GRUENBERG asked the bill sponsor if [Amendment 1]
would adequately address the issue.
REPRESENTATIVE FEIGE answered yes.
9:29:13 AM
REPRESENTATIVE JOHANSEN removed his objection. There being no
further objection, Amendment 1 was adopted.
9:29:25 AM
REPRESENTATIVE KELLER moved to adopt Amendment 2, labeled 27-
LS0564\D.2, Kirsch, 4/11/11, which read as follows [original
punctuation provided]:
Page 2, following line 5:
Insert a new bill section to read:
"* Sec. 2. AS 43.23.008 is amended by adding a new
subsection to read:
"(e) If insufficient documentation is available
to establish the nature of an absence, as required
under (c)(1) and (2) of this section, the department
may waive the requirement of those paragraphs."
Renumber the following bill section accordingly.
REPRESENTATIVE JOHANSEN objected for the purpose of discussion.
9:29:43 AM
REPRESENTATIVE FEIGE said the language gives flexibility to the
division to waive the requirements proving eligibility in the
three years prior to induction into military service, in
situations where information now required was not at one time
collected by the division.
9:31:12 AM
REPRESENTATIVE P. WILSON asked if, under Amendment 1, the
division would have to pay dividends retroactively to someone
who had collected a dividend for three years, 20 years ago, then
went into the service and "is still there."
REPRESENTATIVE FEIGE answered no.
REPRESENTATIVE P. WILSON questioned when the PFD program began.
REPRESENTATIVE FEIGE answered [1982].
REPRESENTATIVE GRUENBERG pointed to the adopted Amendment 1,
which shows that there would be limited retroactivity to January
1, 2009.
REPRESENTATIVE KELLER asked if the bill sponsor intends to allow
the division to waive the requirements without proof that the
criteria of Section 1(c)(1) and (2) are met.
REPRESENTATIVE FEIGE responded that the intent is not to leave
it wide open, but rather to give reasonable discretion to the
division. In response to Representative Keller, he said he
would have no objection to an amendment specifying that a waiver
would be allowed if the division first determines that the
requirements of Section 1(c)(1) and (2) had been met.
9:35:22 AM
REPRESENTATIVE GRUENBERG said he thinks Representative Keller is
right not to want to allow the division to offer waivers
[without guidelines]. He suggested that if there is
insufficient documentation to establish the nature of absence
under c(1) and (2) of this section, then the Department of
Revenue may want to adopt regulations allowing alternative
proof. He said he would like time to draft the wording of an
amendment to Amendment 2.
9:36:35 AM
REPRESENTATIVE P. WILSON said one possible scenario is that a
person may throw away documentation, thinking that he/she does
not qualify, but the division feels that the person's absence
was because of service in the military and waives the
requirements of c(1) and (2).
9:37:11 AM
REPRESENTATIVE JOHANSEN asked the bill sponsor if he is
confident that the regulatory agency will create the appropriate
regulations.
REPRESENTATIVE FEIGE responded that he thinks it would be
clearer if it was set out in statute. He said the requirements
of (c)(1) and (2) do not address whether a person has received a
PFD check. He suggested one way to determine a person's
eligibility is whether or not that person received a PFD.
9:39:16 AM
REPRESENTATIVE SEATON asked for clarification as to who would
qualify under this waiver.
REPRESENTATIVE FEIGE answered that it would apply to someone who
is an Alaska resident at the time of induction into the military
and serves in the military as a career. Regarding (c)(1) and
(2), he reiterated, "Being able to prove where you were 20 years
ago can be somewhat problematic, and the division does not have
that information because it was not required on permanent fund
applications at that time."
REPRESENTATIVE SEATON expressed concern that there may be a
loophole in which someone may be able to reestablish his/her
residency without coming back to the state and remaining for a
year when he/she had at some point in that process officially
changed his/her residence.
9:42:36 AM
MR. PASCHALL directed attention to language on page 1, lines 5-
8, which read as follows:
(c) An otherwise eligible individual who has
been eligible for the immediately preceding 10
dividends despite being absent from the state for more
than 180 days in each of the related 10 qualifying
years is only eligible for the current year dividend
if the individual was absent 180 days or less during
the qualifying year.
MR. PASCHALL indicated that the intent of the bill is to address
only those individuals who had "limited out on the 10 years."
9:43:35 AM
REPRESENTATIVE KELLER moved to adopt Conceptual Amendment 1 to
Amendment 2, as follows:
On line 5 of Amendment 2:
Delete "waive the"
Insert "adopt regulations to establish methods of
alternative compliance"
REPRESENTATIVE KELLER said he thinks Conceptual Amendment 1 to
Amendment 2 would tighten the language of Amendment 2 and put
the public process "out on the table."
REPRESENTATIVE KELLER, in response to the committee aide,
restated Conceptual Amendment 1 to Amendment 2, as follows:
On line 5 of Amendment 2:
Delete "waive the"
Insert "adopt regulations to establish
alternative compliance determination"
REPRESENTATIVE KELLER reiterated that this is a conceptual
amendment.
REPRESENTATIVE GRUENBERG asked Representative Keller to repeat
the part of the proposed language of Conceptual Amendment 1 to
Amendment 2, following "adopt regulations to establish".
REPRESENTATIVE KELLER filled in: ..."alternative methods of
determination".
REPRESENTATIVE GRUENBERG asked, ..."alternative methods of"...?
REPRESENTATIVE KELLER replied, ..."compliance". He explained
that that means compliance with the requirements in (c)(1) and
(2).
9:45:28 AM
REPRESENTATIVE GRUENBERG suggested an alternative fix that would
read: "adopt regulations to establish the requirement of those
paragraphs."
REPRESENTATIVE KELLER moved to amend Conceptual Amendment 1 to
Amendment 2, so that Amendment 2, as amended, would read as
follows:
Page 2, following line 5:
Insert a new bill section to read:
"* Sec. 2. AS 43.23.008 is amended by adding a new
subsection to read:
"(e) If insufficient documentation is available
to establish the nature of an absence, as required
under (c)(1) and (2) of this section, the department
may adopt regulations to establish the requirement of
those paragraphs."
Renumber the following bill section accordingly.
[The motion to amend Conceptual Amendment 1 to Conceptual
Amendment 2 was treated as adopted.]
CHAIR LYNN asked if there was any objection to [Conceptual
Amendment 1, as amended, to Conceptual Amendment 2]. There
being none, it was so ordered.
REPRESENTATIVE JOHANSEN removed his objection to the motion to
adopt Amendment 2, [as amended]. There being no further
objection, Amendment 2, as amended, was adopted.
9:46:36 AM
REPRESENTATIVE SEATON noted that at the last bill hearing he had
requested an opinion from Legislative Legal and Research
Services regarding "the discrimination between ... a three-year
residency requirement versus a one-year residency requirement."
He explained that this relates to a case that determined it is
illegal to discriminate based on longevity of residency.
9:47:21 AM
MR. PASCHALL responded, "Their synopsis of that is ... [that] it
could be [a legal problem]; ... there's no definitive answer."
REPRESENTATIVE SEATON expressed concern that by including
discriminating between one-year and three-year residencies, the
proposed legislation would be trying to overturn a [1982] U.S.
Supreme Court decision from Zobel v. Williams. He stated:
With the data that we have that shows that residents
that are gone for a long period of time - 10 years -
return in very low numbers, that an extended duration
does not give us a[n] adequate proxy for physical
residency; it puts the permanent fund [corporation]
itself at risk of being declared taxable by the
[Internal Revenue Service] (IRS). And so, I think we
are on very shaky ground as far as the risks that we
are willing to take to say that people can take their
career and 20 years out of the state and still receive
their permanent fund dividend. That extension could
be extremely costly to all the citizens of the state.
9:50:06 AM
MR. PASCHALL noted that there was an attorney present to address
Representative Seaton's concern. He indicated that
Representative Seaton had asked for some statistics, which he
related as follows:
The number ... for 2-5 years of absence is 19; for 6-
10 is 15; for 11-19 is 30; and for 20-plus years is
16; and those were members in the armed forces that
had a 10-year absence.
MR. PASCHALL, in response to questions from Representative
Johansen, confirmed that the legal opinion was received from
Legislative Legal and Research Services in March [2011], and he
apologized that the committee was not in possession of a copy.
In response to a follow-up question, he said the next committee
of referral is the House Finance Committee.
9:51:17 AM
REPRESENTATIVE JOHANSEN said he would like to help out the
people in the military, but not at the expense of challenging an
Alaska Supreme Court case decision and putting the Permanent
Fund Division at risk.
9:52:12 AM
DAN BRANCH, Senior Assistant Attorney General, Commercial/Fair
Business Section, Civil Division (Juneau), Department of Law,
said he thinks the committee already grasps that a
classification is made in order to create an exception to a rule
for a particular group of people. The government that does this
creates a question regarding whether constitutional rights will
be violated. He said one question related to this issue is
whether the rights of people who won't benefit from this
proposed Section would be violated. He mentioned the
constitutional rights of people to travel and the privileges and
immunities clause.
MR. BRANCH said all those rights were discussed by the U.S.
Supreme Court during the Zobel v. Williams case, which struck
down the first bill related to the PFD. That bill, he said,
awarded length of residency by increasing the amount of a
dividend by the number of years a person was a resident prior to
application. He said the situation at hand is similar to the
issue in the Zobel v. Williams case, in that the proposed
legislation would essentially award some people who have left
the state for their prior residency in the state, which he said
raises "a really big red flag."
MR. BRANCH said the Department of Law does not like to give
cause for anyone to challenge statute, because it has to then
defend it; however, he said the proposed legislation does raise
concern as to "whether this can withstand constitutionality."
He said one way to consider the constitutionality of proposed
legislation is to think about how hard it would be to defend;
the proposed legislation would be very difficult to defend
"because of the - Zobel connection." He said he has not seen
the analysis by Legislative Legal and Research Services, but
said Legislative Legal and Research Services is careful in terms
of pronouncing legislation constitutional or unconstitutional.
9:56:11 AM
REPRESENTATIVE JOHANSEN urged Mr. Branch to look at the legal
opinion of Legislative Legal and Research Services and give
feedback on it.
9:56:52 AM
CHAIR LYNN remarked that significant issues had been raised, and
spoke of returning to the issue in January 2012.
9:57:40 AM
MR. BRANCH, in response to a request, stated, "There is a
provision in the bill - Section 2 - that would ... allow the
court to sever any [provision] in the bill that would be found
unconstitutional and save what the balance of it would be." In
response to Chair Lynn, he confirmed that a person from the
department who is knowledgeable on this subject would be
available to come before the committee in January.
9:58:31 AM
REPRESENTATIVE GRUENBERG said the three-year/three dividend plan
is an attempt to solve the dilemma of proving that a person in
the military who has been absent from the state for a long time
is indeed a resident of Alaska. The bill attempts to solve this
issue by making the determination based on the length of
residency before the military person left the state. He asked
if that would more likely survive constitutional challenge if
there were legislative finding addressing this unusual problem
and solution. He then asked whether there would be any other
constitutionally permissible way to establish bona fide
residency. He surmised that it is not so much the three
dividends that are of concern, but rather the establishing of
ties to the state.
REPRESENTATIVE FEIGE confirmed that is correct.
10:00:30 AM
MR. BRANCH responded that although findings are always helpful,
the court always looks at the language itself to determine
whether there is a constitutional problem. He offered his
understanding that the bill sponsor is trying to come up with a
way to allow certain people to continue to receive a permanent
fund on the understanding that they are continuing to be and
wish to be considered residents of Alaska.
REPRESENTATIVE GRUENBERG suggested there could be some way to
have these people swear, under penalty of perjury, that they
would come back to Alaska.
MR. BRANCH said that already may be a part of the application
process, but said he thinks some objective standards would be
helpful.
[HB 190 was held over.]
10:02:27 AM
CHAIR LYNN announced that this was likely the last House State
Affairs Standing Committee meeting of the session, and he
thanked the committee, staff, Legislative Information Office
technician and committee secretary for their work.
10:02:44 AM
ADJOURNMENT
There being no further business before the committee, the House
State Affairs Standing Committee meeting was adjourned at 10:03
a.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| 01 HB0216A.pdf |
HJUD 1/30/2012 1:00:00 PM HSTA 4/12/2011 8:00:00 AM |
HB 216 |
| 02 Sponsor_HB216_Regulations.pdf |
HJUD 1/30/2012 1:00:00 PM HSTA 4/12/2011 8:00:00 AM |
HB 216 |
| --11 HB 182 - CS version I 4-11-11.pdf |
HSTA 4/12/2011 8:00:00 AM |
HB 182 |
| --12 HB 182 - CS change explanation version I.pdf |
HSTA 4/12/2011 8:00:00 AM |
HB 182 |
| 01 HB 77 (Version D).pdf |
HSTA 4/12/2011 8:00:00 AM |
HB 77 |
| 02 HB 77 Sponsor Statement.pdf |
HSTA 4/12/2011 8:00:00 AM |
HB 77 |
| 03 HB 77 Sectional.pdf |
HSTA 4/12/2011 8:00:00 AM |
HB 77 |