02/06/2006 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB172 | |
| SB132 | |
| HB379 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 373 | TELECONFERENCED | |
| + | HB 295 | TELECONFERENCED | |
| += | TELECONFERENCED | ||
| = | SB 132 | ||
| = | SB 172 | ||
| = | HB 379 | ||
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
February 6, 2006
1:12 p.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson
Representative John Coghill
Representative Pete Kott
Representative Peggy Wilson
Representative Les Gara
Representative Max Gruenberg
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
SENATE BILL NO. 172
"An Act relating to the presentation of initiatives and
referenda on the ballot."
- MOVED HCS SB 172(JUD) OUT OF COMMITTEE
SENATE BILL NO. 132
"An Act relating to complaints filed with, investigations,
hearings, and orders of, and the interest rate on awards of the
State Commission for Human Rights; making conforming amendments;
and providing for an effective date."
- MOVED HCS SB 132(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 379
"An Act relating to controlled substances."
- MOVED CSHB 379(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 373
"An Act relating to the manufacture and transportation of
alcoholic beverages; relating to forfeitures of property for
violations of alcoholic beverage laws; and relating to
violations of alcoholic beverage laws."
- SCHEDULED BUT NOT HEARD
HOUSE BILL NO. 295
"An Act adopting the Uniform Fraudulent Transfer Act and
relating to fraudulent transfers of property."
- SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: SB 172
SHORT TITLE: INITIATIVE/REFERENDUM BALLOT SUMMARY
SPONSOR(S): SENATOR(S) THERRIAULT
04/13/05 (S) READ THE FIRST TIME - REFERRALS
04/13/05 (S) STA
04/19/05 (S) STA AT 3:30 PM BELTZ 211
04/19/05 (S) Moved SB 172 Out of Committee
04/19/05 (S) MINUTE(STA)
04/20/05 (S) STA RPT 4DP
04/20/05 (S) DP: THERRIAULT, WAGONER, HUGGINS, DAVIS
04/25/05 (S) TRANSMITTED TO (H)
04/25/05 (S) VERSION: SB 172
04/26/05 (H) READ THE FIRST TIME - REFERRALS
04/26/05 (H) STA, JUD
05/05/05 (H) STA AT 8:00 AM CAPITOL 106
05/05/05 (H) Moved HCS SB 172(STA) Out of Committee
05/05/05 (H) MINUTE(STA)
05/05/05 (H) STA RPT HCS(STA) 4DP 2NR
05/05/05 (H) DP: LYNN, GATTO, ELKINS, SEATON;
05/05/05 (H) NR: GARDNER, GRUENBERG
05/07/05 (H) JUD AT 3:30 PM CAPITOL 120
05/07/05 (H) Meeting Postponed to 12 noon 5/8/05
05/08/05 (H) JUD AT 12:00 AM CAPITOL 120
05/08/05 (H) Meeting Postponed
05/09/05 (H) JUD AT 0:00 AM CAPITOL 120
05/09/05 (H) <Bill Hearing Canceled>
02/03/06 (H) JUD AT 1:00 PM CAPITOL 120
02/03/06 (H) Scheduled But Not Heard
02/06/06 (H) JUD AT 1:00 PM CAPITOL 120
BILL: SB 132
SHORT TITLE: HUMAN RIGHTS COMMISSION
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
03/04/05 (S) READ THE FIRST TIME - REFERRALS
03/04/05 (S) STA, JUD
03/17/05 (S) STA AT 3:30 PM BUTROVICH 205
03/17/05 (S) Heard & Held
03/17/05 (S) MINUTE(STA)
03/29/05 (S) STA AT 3:30 PM BELTZ 211
03/29/05 (S) Moved SB 132 Out of Committee
03/29/05 (S) MINUTE(STA)
03/30/05 (S) STA RPT 3NR 1AM
03/30/05 (S) NR: THERRIAULT, WAGONER, HUGGINS
03/30/05 (S) AM: DAVIS
04/07/05 (S) JUD AT 8:30 AM BUTROVICH 205
04/07/05 (S) Scheduled But Not Heard
04/08/05 (H) JUD AT 8:00 AM CAPITOL 120
04/08/05 (S) Scheduled But Not Heard
04/14/05 (S) JUD AT 8:00 AM BUTROVICH 205
04/14/05 (S) Moved SB 132 Out of Committee
04/14/05 (S) MINUTE(JUD)
04/14/05 (S) JUD RPT 1DP 2NR 2AM
04/14/05 (S) DP: SEEKINS
04/14/05 (S) NR: THERRIAULT, HUGGINS
04/14/05 (S) AM: FRENCH, GUESS
04/21/05 (S) TRANSMITTED TO (H)
04/21/05 (S) VERSION: SB 132(EFD FLD)
04/22/05 (H) READ THE FIRST TIME - REFERRALS
04/22/05 (H) STA, JUD
05/03/05 (H) STA AT 8:00 AM CAPITOL 106
05/03/05 (H) Heard & Held
05/03/05 (H) MINUTE(STA)
05/05/05 (H) STA AT 8:00 AM CAPITOL 106
05/05/05 (H) Moved HCS SB 132(STA) Out of Committee
05/05/05 (H) MINUTE(STA)
05/05/05 (H) STA RPT HCS(STA) 4DP 1AM
05/05/05 (H) DP: LYNN, GATTO, ELKINS, SEATON;
05/05/05 (H) AM: GRUENBERG
05/05/05 (H) JUD AT 1:00 PM CAPITOL 120
05/05/05 (H) Scheduled But Not Heard
05/06/05 (H) JUD AT 1:00 PM CAPITOL 120
05/06/05 (H) Heard & Held
05/06/05 (H) MINUTE(JUD)
05/07/05 (H) RULES TO CALENDAR PENDING REPORT
05/07/05 (H) IN JUDICIARY
05/08/05 (H) RULES TO CALENDAR PENDING REPORT
05/08/05 (H) IN JUDICIARY
05/09/05 (H) JUD AT 0:00 AM CAPITOL 120
05/09/05 (H) Heard & Held
05/09/05 (H) MINUTE(JUD)
01/18/06 (H) JUD AT 1:00 PM CAPITOL 120
01/18/06 (H) Scheduled But Not Heard
01/25/06 (H) JUD AT 1:00 PM CAPITOL 120
01/25/06 (H) Scheduled But Not Heard
02/01/06 (H) JUD AT 1:00 PM CAPITOL 120
02/01/06 (H) -- Meeting Canceled --
02/03/06 (H) JUD AT 1:00 PM CAPITOL 120
02/03/06 (H) Scheduled But Not Heard
02/06/06 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 379
SHORT TITLE: CONTROLLED SUBSTANCES, INCL. ANALOGS
SPONSOR(S): REPRESENTATIVE(S) MEYER
01/18/06 (H) READ THE FIRST TIME - REFERRALS
01/18/06 (H) JUD, FIN
01/27/06 (H) JUD AT 1:00 PM CAPITOL 120
01/27/06 (H) Heard & Held
01/27/06 (H) MINUTE(JUD)
02/06/06 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
JOE BALASH, Staff
to Senator Gene Therriault
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented SB 172 on behalf of Senator
Therriault, sponsor.
ANNETTE KREITZER, Chief of Staff
Office of the Lieutenant Governor
Juneau, Alaska
POSITION STATEMENT: Presented the lieutenant governor's position
on SB 172.
RANDY RUARO, Legislative Liaison
Department of Law
Juneau, Alaska
POSITION STATEMENT: Presented the administration's position on
SB 132.
MICHAEL PAWLOWSKI, Staff
to Representative Kevin Meyer
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented amendments to HB 379 on behalf of
Representative Meyer, sponsor.
CHRIS BEHEIM, Supervisor
Scientific Crime Detection Laboratory
Anchorage, Alaska
POSITION STATEMENT: Answered questions regarding HB 379.
ACTION NARRATIVE
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 1:12:49 PM. Representatives
McGuire, Gruenberg, Kott, Coghill, and Wilson were present at
the call to order. Representatives Gara and Anderson arrived as
the meeting was in progress.
SB 172 - INITIATIVE/REFERENDUM BALLOT SUMMARY
1:13:59 PM
CHAIR MCGUIRE announced that the first order of business would
be SENATE BILL NO. 172, "An Act relating to the presentation of
initiatives and referenda on the ballot."
1:14:09 PM
JOE BALASH, Staff to Senator Gene Therriault, Alaska State
Legislature, presented SB 172 on behalf of Senator Therriault,
sponsor. He said the bill is simple. Current statutes provide
that once an initiative petition has been certified, the
lieutenant governor is required to prepare a ballot title and
summary, which is the same for referenda. He stated that under
existing law the ballot title must indicate the general subject
of the proposition and may not exceed six words, and the summary
must be impartial and not more than 100 words.
1:15:00 PM
REPRESENTATIVE KOTT moved to adopt a proposed House committee
substitute (HCS) for SB 172, version 24-LS0859\P, Kurtz,
2/03/03, as a working document. There being no objection,
Version P was before the committee.
MR. BALASH said SB 172 speaks to the lieutenant governor's duty
of titling and summarizing voter initiatives and referenda. He
stated that the current six-word limit for titles is becoming a
limitation to increasingly complex initiatives and legislative
laws, and he gave an example of recent legislation where the
title was a page and a half long. The bill's intent is to
provide an accurate description of the issues that are before
the voters, he said. He noted that the original Senate version
only addressed the number of words in the title, and the current
CS addresses the number of words for the summary, which is 100
words for each section. An initiative section is defined as a
provision that is different in purpose or subject matter, and a
referendum section will be defined by Legislative Legal and
Research Services, he added.
1:18:06 PM
MR. BALASH relayed that the version of SB 172 that passed the
Senate contained a change in the maximum number of words in the
title from 6 to 25. The House State Affairs Standing Committee
then added provisions limiting the time allowed for the
lieutenant governor to prepare the title and summary, but the
current lieutenant governor said he had concerns with that, so
Senator Therriault agreed to drop those provisions.
REPRESENTATIVE KOTT asked for clarification on Section 3.
MR. BALASH told him he was looking at Version X.
CHAIR MCGUIRE said there was a time limitation amendment by the
House State Affairs Standing Committee, and the lieutenant
governor expressed that it may not be enough time to do a good
job. The big change in the current version is the removal of
the deadline and putting the effective date back in again, she
explained.
1:22:33 PM
REPRESENTATIVE GRUENBERG relayed that he is not aware of the
problems [the lieutenant governor's office] has with [the time
limit provisions]. He said there was care taken to put the
amendment in, and he is not inclined to take it out. He said
the provision was added because sometimes people challenge the
lieutenant governor's wording, "and this has caused a problem on
several occasions very recently." He said that a final version
[of an initiative or referendum] issued only a short time before
the election doesn't allow time for a legal challenge to make
certain the law is complied with. "This will make it difficult
to challenge what the lieutenant governor does if we don't
provide enough time to do it, and it will require the court
system to hear these things on an emergency basis, and it will
require, sometimes even, the printing of two sets of ballots."
He said the lieutenant governor certainly should have the time
to prepare initiatives in enough time to allow for people to
study them. It is a reasonable request, and the policy of not
doing it encourages problematic synopses and titles, he stated.
"That is a good public policy to advance, and I have no idea why
they don't want to have an adequate judicial review," he said.
CHAIR MCGUIRE noted that the time limit is "really the only
substantive issue that we're addressing." She said the word-
limit aspects of the bill are not under debate, but there may be
a desire for a discussion on the effective date.
REPRESENTATIVE GRUENBERG said he did not recall seeing an
effective date in the original bill.
CHAIR MCGUIRE said it was immediate as it passed the Senate, and
the House State Affairs Standing Committee removed that. She
said she would like to see an immediate effective date.
1:25:35 PM
ANNETTE KREITZER, Chief of Staff, Office of the Lieutenant
Governor, said Representative Gruenberg called her with a
concern that 30 days may not be enough time, and she told him
she would take a look at it. She said it was unfortunate that
the amendment was adopted by the House State Affairs Standing
Committee to "address the situation that Representative
Gruenberg referenced." She said Representative Gruenberg was
concerned that someone may sue over the language of an
initiative. She stated that the problem with putting a 30-day
deadline on the lieutenant governor doesn't solve that problem.
"There are people who will sue at any time that it suits them to
sue, and so telling us that we have to have our work done 30
days after the legislative session doesn't solve that problem."
MS. KREITZER said she spoke with the chair of the House State
Affairs Standing Committee and "hashed through this because the
committee minutes don't really get to why this amendment was
adopted." She said her office does not put a time limit on the
Department of Law to provide legal guidance. "We are waiting to
see what the legislature does, whether they pass legislation
that is similar to an initiative." She said there are several
initiatives this year that the legislature may act on. She said
her office keeps the Department of Law (DOL) "pretty busy," and
doesn't want to keep them any busier with initiatives that may
or may not go forward. "So we wait until the end of the
session," she relayed.
REPRESENTATIVE GRUENBERG said he sees the problem, but perhaps
it can be solved without removing all deadlines. He suggested a
deadline for filing a legal challenge. He pointed out that
election challenges are limited to a very brief period, "and
this is a type of an election challenge." He surmised that Ms.
Kreitzer is envisioning a case in which an initiative is trumped
by legislation, but he characterized this as a red herring
because if a legislative bill trumps the initiative, then the
whole point is moot. He then acknowledged that someone might
challenge the contention that the bill is the same as the
initiative. He said he is not certain how to solve the problem,
"but I do think it's a bad idea not to have the process moving
along and have the whole thing in a log jam at the very end--
even after the election pamphlet [is] printed." He asked for a
suggestion.
1:30:28 PM
MS. KREITZER said she doesn't know that there is a problem. She
relayed that her office works with opponents and proponents of
initiatives monthly. She said the lieutenant governor's website
shows that "we could have come into this session with five
initiatives having been certified by the lieutenant governor."
She said as soon as an initiate is turned in, the staff is
working on the language for the petition booklets, which is
probably similar to the ballot language. "Although, I'll tell
you there are two of them right now that were unhappy to start
with." She said one is 05HUNT [An Act prohibiting the shooting
of wolves and grizzly bears with the use of aircraft]. "I
talked with those folks and they had a concern about the
language that the Department of Law had proposed for their
initiative." She said she raised the issues with DOL, and the
attorney agreed with the initiative sponsors, so the lieutenant
governor's office changed the language. Regarding the pesticide
initiative, she said, "Their attorney disagrees with the state's
attorney." Her office works with the initiative groups all
along, she said.
REPRESENTATIVE GRUENBERG offered his understanding that for an
initiative to be on the ballot, it has to be in by the time the
legislature convenes.
MS. KREITZER said that is true if it is to go on the 2006
general election. She said there are two already on the 2006
primary, which has a different deadline.
REPRESENTATIVE GRUENBERG said that was the previous year, so "in
order to get on the ballot for the primary, they have to be in
by the odd numbered year, so you have almost two years to deal
with that." He said the shortest [timeframe] is for the general
election, which need to be in by the second Monday in January,
so the staff have 151 days under this legislation to deal with
the problem.
MS. KREITZER clarified that "when you turn in an initiative you
have one year from the time you get your petition booklets to
file with the lieutenant governor's office."
REPRESENTATIVE GRUENBERG said if the lieutenant governor's
office is saying it needs enough time, the House State Affairs
Standing Committee CS gives the office at least 151 days to "do
this." He noted that that is reasonable because it is four and
one half months from the election. "And then we give people a
reasonable period of time to file their challenge, and then the
court system has the time to proceed. That's all we were
asking."
1:34:04 PM
CHAIR MCGUIRE noted that the chair of the House State Affairs
Standing Committee visited her and "removed his desire to see
this in here, along with the sponsor of the bill." She said
when the committee addressed the issue before it had "this
idealized look at it, but when they really sat down and looked
at it with the Division of Elections in the lieutenant
governor's office, it didn't seem to make sense-the problem that
the amendments were addressing really wasn't fixed." She said
she didn't disagree with Representative Gruenberg, but that she
needed more information. She said 30 days was not enough
[time], especially if it is a ballot measure that the
legislature wants to trump. She stated that it is a waste of
time to give an artificial deadline. The legislation would
"have to be married with some kind of limitation on the
plaintiff's right to then go ahead and bring the action." She
said she does not know what the right amount of time would be,
and she does not want to shoot in the dark at figures. Her gut
feeling, she offered, is that there isn't a way to fix the
complete logjam and the chaos "because zealous advocates on both
sides are going to use whatever they have right up to the last
minute."
REPRESENTATIVE GRUENBERG indicated that he would be amenable to
giving the lieutenant governor 60 plus 30 days, and that would
give the courts several months to look at the situation.
CHAIR MCGUIRE said she has not been given compelling evidence
that "this is a tremendous problem." She suggested moving
forward with the three other bills.
1:37:46 PM
REPRESENTATIVE COGHILL said there are start and finish
deadlines, which are the general and primary elections. He
added that "the legal challenge can happen anywhere in that
arena, so I think that any person proactive enough to get a
petition ...."
REPRESENTATIVE GRUENBERG said he is not talking about challenges
to the initiative itself, only to the title and the synopsis.
REPRESENTATIVE COGHILL said, "Then you have to put it in a
booklet...and that's where the rub's going to come." He noted
that there is a publishing deadline, so "there is a series of
deadlines already where the verbiage is going to be vetted very
clearly." He added that democracy can be messy, "but everyone
gets a bite at the apple."
CHAIR MCGUIRE said that her point is that in imposing a deadline
for describing the ballot title, "you face the argument about
substantial similarity because you may not know what it's going
to be yet." The legislature adjourning doesn't mean anything,
she noted, and there could be a lot of energy going forward
before realizing it is not to be.
REPRESENTATIVE GRUENBERG said the bill does not deal with the
[initiative].
CHAIR MCGUIRE said it deals with what is going to be on the
ballot itself.
REPRESENTATIVE GRUENBERG said it is the initiative, and the
initiative came in its final form no later than the first day of
the session.
CHAIR MCGUIRE asked, "But will it be on or not?"
REPRESENTATIVE GRUENBERG said if it is not on, then it would be
a moot point, "but they can certainly draft this anytime from
the first day of the session on. And if it's pulled it's
pulled."
CHAIR MCGUIRE surmised then that Representative Gruenberg's
point is to spend the time drafting it no matter what.
REPRESENTATIVE GRUENBERG said yes.
MS. KREITZER said that the lieutenant governor understands that
as initiatives become more complex, more words may be necessary
to describe them. She said he clearly understands those limit
changes, but the language adopted in the House State Affairs
Standing Committee was adopted without consulting with his
office. She said the office has a web site with initiatives and
where they stand. It is a dynamic process, she said, and the
lieutenant governor is still in litigation over the cruise ship
initiative. She asked what the amendment would do for an
initiative that is "still out there." She stated, "The
lieutenant governor has been on the other end. Constitutional
amendment; definition of marriage. He's been on the other end
of telling the lieutenant governor he didn't like her language.
We didn't sue," she said. She added that he felt that it was
the lieutenant governor's prerogative and it was incumbent on
those who supported it to go out and get support for their
constitutional amendment. She added that it is a new era where
people sue over initiatives, and she does not see an arbitrary
deadline as solving that problem.
1:44:25 PM
WHITNEY BREWSTER, Director, Division of Elections, said the
fiscal impact of increasing the wording in the ballot title is
zero but there will be a fiscal impact to increasing the wording
of the summary section. She gave an example of an initiative
that has 16 sections, which could be summarized with 1,625
words, or 10 times the previous limits. Printing costs, which
was $300,000 for the 2004 election, could double, she noted.
She added that approximately 800 words will fit on a ballot, so
some initiatives would cover two ballots if the lieutenant
governor decided to use the maximum number of words allowed in
the bill. She said it would increase shipping, mailing,
translating and envelope costs.
CHAIR MCGUIRE said the fiscal note will be forthcoming.
REPRESENTATIVE GARA asked if the increase will be $300,000 plus
the listed postal costs.
MS. BREWSTER said yes, and she hasn't factored in the cost of
the initiative material that the initiative sponsors use.
1:49:12 PM
JOHN SHIVELY, Vice President, Government and Community
Relations, Holland America, said he is in support of the CS. He
said his company is facing a complex initiative that is nine
pages long with a number of sections. He thinks voters should
be educated on what they are voting on, and the "whole
initiative should be on the ballot," reducing the risk of
lawsuits. He said it would be unrealistic and expensive,
however. He urged adoption of the CS.
REPRESENTATIVE GARA said he has major concerns about a provision
the [cruise ship] industry requested be added to the bill. He
said the industry wants initiatives to use up to 100 words per
section. He said the longer the description, the more
convoluted it can be, which may deter a voter from signing an
initiative. He acknowledged that there may be complex bills
requiring further explanation, but "it seems to me you can
describe any bill in 100 words." He suggested allowing the
lieutenant governor to attach additional material that would
give the voter the option to read. Telling the lieutenant
governor to give a 1,500-word description that a voter would
need to read prior to signing an initiative "causes the mischief
of over-information to the point that you are going to deter
people from signing the initiative," he surmised.
MR. SHIVELY said he disagrees with Representative Gara and
suggested that people would write less confusing initiatives if
the CS were to pass. He said very few people even read an
initiative. "They get a little statement from the person that
has the petition book" before deciding to sign, he said, and if
Representative Gara is suggesting that voters get confused with
too much information, that is not "what democracy is about."
REPRESENTATIVE GARA clarified that he wanted to offer voters the
information, not withhold it. It would be an optional statement
that a voter could choose to read. He noted that he has
understood the petitions that he has signed in the past.
MR. SHIVELY said he is not as concerned about the petition book
itself as he is about the ballot; it is important to have
additional explanations for people in the voting booth.
1:55:18 PM
CHAIR MCGUIRE closed public testimony, and noted that Version P
was before the committee.
REPRESENTATIVE GARA moved to adopt Amendment 1, which, with
handwritten corrections, read [original punctuation provided]:
p.1., line 7:
Delete "25"
Insert "15"
p.2., line 1:
Delete "25"
Insert "15"
CHAIR MCGUIRE objected for purposes of discussion.
REPRESENTATIVE GARA opined that the voters need enough
information to "understand what they're voting on. You can
perform mischief by letting the lieutenant governor's office add
additional words in a way where they can frankly confuse things
for the voters." He said that has happened in recent
initiatives causing litigation. He added that he can't think of
a recent initiative where the subject can't be described in 15
words. It will be followed by the 100-word statement anyway, he
stated, and he gave examples. By allowing 25 words, it will
"allow a lieutenant governor who's trying to tank an initiative
the ability to obfuscate when they should be clarifying for
voters."
REPRESENTATIVE COGHILL noted that the bills in his packet all
have more than 15 words in the headings.
1:57:55 PM
MR. BALASH noted that what is missing from the committee packets
is a comparison of past initiatives with prepared summaries. He
said he has two initiatives, both with 29 words as written by
the initiative sponsors. He said 25 words are too many in many
instances and perhaps too few for others, so rather than err on
the side of restrictions, Senator Therriault decided to err on
the side of caution by giving the lieutenant governor
flexibility.
CHAIR MCGUIRE reminded the committee that the lieutenant
governor could be with the opposite political party in the
future.
REPRESENTATIVE GARA said initiative sponsors were never asked to
limit themselves to 15 words, which could have easily been done
for the aforementioned initiatives.
2:00:13 PM
A roll call vote was taken. Representative Gara voted in favor
of Amendment 1. Representatives McGuire, Coghill, Wilson, Kott,
Anderson and Gruenberg voted against it. Therefore, Amendment 1
failed by a vote of 1-6.
2:00:41 PM
REPRESENTATIVE GARA moved to adopt Amendment 2, labeled 24-
LS0859\X.2, Kurtz, 2/3/06, which was edited with handwritten
notes to read as follows:
Page 1, line 8:
Delete "for each section"
Page 1, lines 9 - 11:
Delete "In this subsection, "section" means a
provision of the proposed law that is distinct from
other provisions in purpose or subject matter."
Page 1, following line 10:
Insert a new bill section to read:
"* Sec. 2. AS 15.45.180 is amended by adding a new
subsection to read:
(c) If the lieutenant governor believes it is
necessary for a better understanding by the public of
a bill that is the subject of an initiative, the
lieutenant governor may prepare an additional analysis
that clearly and concisely states the purposes of the
proposed initiative. The analysis may not exceed 100
words a section. If, under this subsection, an
additional analysis of a bill is prepared, a person
circulating the initiative petition for that bill
shall advise, both in writing and orally, each voter
from whom the person seeks a signature that the
additional analysis is available for review by the
voter. A circulator shall have the additional analysis
available for immediate inspection by the voter when
circulating a petition. In this subsection, "section"
means a provision of the proposed initiative that is
distinct from other provisions in purpose or subject
matter."
Renumber the following bill sections accordingly.
Page 1, line 15, through page 2, line 1:
Delete "for each section"
Page 2, lines 1 - 4:
Delete "In this subsection, "section" means each
section of the Alaska statutes created, amended, or
repealed in the Act, and each section of the Act that
does not create or amend codified law."
Page 2, line 5:
Delete "a new subsection"
Insert "new subsections"
Page 2, following line 7:
Insert a new subsection to read:
"(d) If the lieutenant governor believes it is
necessary for a better understanding by the public of
an Act that is the subject of a referendum, the
lieutenant governor may prepare an additional analysis
that clearly and concisely states the purposes of the
Act. The analysis may not exceed 100 words a section.
If an additional analysis of an Act has been prepared,
a person circulating the referendum petition for that
Act shall advise, both in writing and orally, each
voter from whom the person seeks a signature that the
additional analysis is available for review by the
voter. A circulator shall have the additional analysis
available for immediate inspection by the voter when
circulating a petition. In this subsection, "section"
means each section of the Alaska statutes created,
amended, or repealed in the Act, and each section of
the Act that does not create or amend codified law."
REPRESENTATIVE ANDERSON objected.
REPRESENTATIVE GARA explained that Amendment 2 addresses the
cruise ship industry proposed provision. He said the logical
order of discussing a bill is not necessarily the same order as
the sections of the bill. The provision will lead to a
disjointed description of a bill, he noted. "First you're going
to discuss, in a hundred words, a very discrete part of the bill
in Section 1, and then a very discrete part of the bill in
Section 2," and so on. He said the bill is probably better
described as a whole, instead of little pieces of disjointed
descriptions on a section-by-section basis, which will be
confusing. He further stated that 100 words per section in a
15-section bill is a 1500-word description, and "that's mind-
boggling." He said if the lieutenant governor doesn't like an
initiative and wants to defeat it, the initiative will be buried
in excess words designed to confuse people. He said Amendment 2
states that if there needs to be more than 100 words the
circulator shall carry around a sectional attachment.
CHAIR MCGUIRE asked if Amendment 2 "removes it from the ballot
itself and puts it into the petition that is circulated."
REPRESENTATIVE GARA noted that the amendment addresses the
petition, and he will do a conceptual amendment to deal with the
ballot if Amendment 2 passes. He said the ballot should have a
comprehensive 100-word description with a more detailed
description that followed. He said the ballot shouldn't be
written so that the bill title is followed directly by a
disjointed sectional analysis.
2:04:25 PM
REPRESENTATIVE COGHILL said he is somewhat sympathetic, and he
has never been a big fan of having to read a ballot for a half
hour before voting; however, the nature of petitions is becoming
more complex. He said he felt that voters did not understand a
past billboard vote because of the limited wording. He added
"if we're going to allow people to have that access to direct
democracy, it has to be with some deliberation, and that means
you have to have the information in front of them." He said
that was what campaigns were for. He said campaigns give people
an idea of what is going to be on the ballot. He noted that
"brand new verbiage before you get to the ballot--you will feel
that you have been had by your government." He said he would be
nervous about not having a summary of a section. "If we're
going to go to the people and say you want to change a whole
title of your law, then they better get a good shot at it." He
concluded that 100 words might represent the changing of 1,000
words in law.
REPRESENTATIVE GARA said he doesn't disagree with those points,
but a 100-word description of the bill should come first. If
the lieutenant governor decides the issue is complex, then a
section by section explanation can follow, he said, "but you've
got to make it readable, and the sectional without a sponsor
statement, like we do in our bills ... is not readable."
REPRESENTATIVE COGHILL agreed but pointed out that there are no
sponsor statements on ballots. The description should be read
by voters in the election booklet, he said.
CHAIR MCGUIRE said, "You hope people do it, but ...".
REPRESENTATIVE COGHILL said every registered voter gets a
pamphlet.
2:08:24 PM
REPRESENTATIVE GARA withdrew Amendment 2.
REPRESENTATIVE GARA moved Conceptual Amendment 3, hoping to meld
his concerns with Representative Coghill's concerns.
REPRESENTATIVE ANDERSON objected for discussion.
REPRESENTATIVE GARA said Conceptual Amendment 3 will be:
For both the circulating petition that people read
when they're signing the initiative and for the
ballot, there shall be a statement of the bill that is
up to 100 words, which is just like the current law
right now. Following the statement of the bill, if
the lieutenant governor determines that the 100 words
wasn't enough, there shall be a sectional of up to 100
words per section.
REPRESENTATIVE GARA explained that, "this way you have in
laymen's terms 100 words that describe the bill to people, and
then the analysis that goes section by section. If you don't
have the laymen's description first, it's going to be very
confusing for people in the ballot box and when they're
signing."
REPRESENTATIVE COGHILL noted that the title has been expanded to
25 words, which nearly constitutes a summary. "I'm happy that
25 words can get that done," he added. He said he is concerned
that a policy statement and then the specifics could weary the
voter.
CHAIR MCGUIRE remarked that the nice thing about the bill is
that it currently says "in not more than 100 words." She said
it doesn't have to be 100 words and that goes to the spirit of
[conceptual amendment 3]. She stated that it is absolutely
critical that people understand what they are voting on, and
when she reads a bill she tries to skip the sponsor statement
and read what a bill really does because it is easy to gloss
over details in the statement. She added that she is
comfortable with the proposed change, but she doesn't know how
it will play out in reality. She thinks it will be more
informative to describe the sections, but she does not have a
"burning opposition" to the amendment.
REPRESENTATIVE GARA said that a sponsor statement in a bill
could present a one-sided argument, but the law on initiatives
and referenda is that it must be objective. The 100-word
statement has to be objective. The sponsor of the bill doesn't
think the 25-word title is enough, he argued. A lieutenant
governor who is trying to play games is going to use 100 words
for every section, and that is why a one-time concise statement
is necessary, he stated.
2:14:13 PM
A roll call vote was taken. Representative Gara and Gruenberg
voted in favor of Conceptual Amendment 3. Representatives
McGuire, Coghill, Wilson, Kott and Anderson voted against it.
Therefore, Conceptual Amendment 3 failed by a vote of 2-5.
2:14:40 PM
REPRESENTATIVE GRUENBERG moved to adopt Amendment 4.
REPRESENTATIVE COGHILL objected.
REPRESENTATIVE GRUENBERG relayed that Amendment 4 goes back to
the House State Affairs Standing Committee CS with the addition
of a requirement that any suit challenging the wording of the
ballot title or proposition must be filed within 30 days of
being submitted to the director. He said it gives the
administration 120 days to prepare the title and the summary.
He noted that it is certainly adequate, and it gives another 30
days for a total of 151 days. He said that the people
challenging will only have 30 days to file a suit, and it will
allow the process to proceed in an orderly fashion without the
expense of printing two sets of ballots. He then surmised that
he may have caused an inadvertent problem regarding the date the
election pamphlet needs to be in.
MS. KREITZER recollected that it is July 1 or August 1.
REPRESENTATIVE GRUENBERG said he thought it was July 1, which
might make his deadlines too long.
MS. KREITZER said that is not the only problem with the
deadlines. She said there is another deadline for absentee
ballots, but she would be willing to work with him to solve the
problem.
REPRESENTATIVE GRUENBERG withdrew Amendment 4.
REPRESENTATIVE GARA moved to adopt Conceptual Amendment 5,
labeled 24-LS0859\X.1, Kurtz, 2/3/06, as follows [original
punctuation provided]:
Page 1, line 4, following "governor":
Insert "shall appoint a ballot proposition
committee to prepare"
Page 1, line 5:
Delete "shall prepare"
Insert "[SHALL PREPARE]"
Page 1, following line 10:
Insert a new bill section to read:
"* Sec. 2. AS 15.45.180 is amended by adding new
subsections to read:
(c) The lieutenant governor shall appoint five
individuals to the ballot proposition committee,
including
(1) two proponents of the initiative, at
least one of whom must be a member of the initiative
committee;
(2) two opponents of the initiative; and
(3) one individual from a list of three
submitted by the chief justice of the Alaska Supreme
Court.
(d) The committee shall submit the ballot title
and proposition to the lieutenant governor not later
than 30 days after the date of the adjournment of the
first regular legislative session convened after the
petition is filed.
(e) The lieutenant governor shall review the
ballot title and proposition prepared under (a) of
this section and make any changes necessary to make
the proposition true and impartial. Not later than 10
days after receiving the ballot title and proposition
from the committee, the lieutenant governor shall
complete the review and provide the ballot title and
proposition to the director. If the lieutenant
governor makes any changes to the ballot title or
proposition prepared under (a) of this section, the
lieutenant governor shall also provide the director
with a written explanation of those changes."
Renumber the following bill sections accordingly.
Page 1, lines 12 - 14:
Delete "The lieutenant governor, with the
assistance of the attorney general, shall prepare a
ballot title and proposition upon determining that the
petition is properly filed"
Insert "If the petition is properly filed, the
lieutenant governor shall appoint a ballot proposition
committee to prepare, with the assistance of the
attorney general, a ballot title and proposition [THE
LIEUTENANT GOVERNOR, WITH THE ASSISTANCE OF THE
ATTORNEY GENERAL, SHALL PREPARE A BALLOT TITLE AND
PROPOSITION UPON DETERMINING THAT THE PETITION IS
PROPERLY FILED]"
Page 2, lines 5 - 7:
Delete all material and insert:
"* Sec. 4. AS 15.45.410 is amended by adding new
subsections to read:
(c) The lieutenant governor shall appoint five
individuals to the ballot proposition committee,
including
(1) two proponents of the referendum, at
least one of whom must be a member of the referendum
committee;
(2) two opponents of the referendum; and
(3) one individual from a list of three
submitted by the chief justice of the Alaska Supreme
Court.
(d) The committee shall submit the ballot title
and proposition to the lieutenant governor not later
than 55 days after the date the petition is filed.
(e) The lieutenant governor shall review the
ballot title and proposition prepared under (a) of
this section and make any changes necessary to make
the proposition true and impartial. Not later than
five days after receiving the ballot title and
proposition from the committee, the lieutenant
governor shall complete the review and provide the
ballot title and proposition to the director. If the
lieutenant governor makes any changes to the ballot
title or proposition prepared under (a) of this
section, the lieutenant governor shall also provide
the director with a written explanation of those
changes."
REPRESENTATIVE GARA said the original concept was proposed by
Senator Elton's office. The amendment addresses times when the
lieutenant governor is hostile to a petition, and to prevent a
lieutenant governor from confusing voters it requires a
committee to draft the language. The committee will consist of
two members who support the initiative and two who oppose it and
one member appointed by the court, he explained. He said it
will hopefully lead to a more objective summary, especially
since the legislation before the committee will lead to more
mischief by the lieutenant governor's office. The summary will
then be reviewed by the lieutenant governor, he said.
REPRESENTATIVE WILSON said she doesn't think the amendment will
do anything because the individuals will be appointed by the
lieutenant governor.
REPRESENTATIVE GARA said the lieutenant governor would be
limited in those four appointments, and the court would appoint
the fifth person.
CHAIR MCGUIRE remarked that the amendment is interesting but it
is almost a completely new bill, and she will oppose it because
she has not had time to speak with the bill's sponsor.
2:21:48 PM
A roll call vote was taken. Representative Gara and Gruenberg
voted in favor of Conceptual Amendment 5. Representatives
McGuire, Coghill, Wilson, Kott and Anderson voted against it.
Therefore, Conceptual Amendment 5 failed by a vote of 2-5.
2:22:59 PM
REPRESENTATIVE ANDERSON moved to report the proposed House
committee substitute (HCS) for SB 172, version 24-LS0859\P,
Kurtz, 2/03/03, out of committee with individual recommendations
and the accompanying fiscal notes. Hearing no objections, HCS
SB 172(JUD) was reported out of the House Judiciary Standing
Committee.
MR. BALASH announced that the fiscal note would be forthcoming.
SB 132 - HUMAN RIGHTS COMMISSION
2:23:44 PM
CHAIR MCGUIRE announced that the next order of business would be
SENATE BILL NO. 132, "An Act relating to complaints filed with,
investigations, hearings, and orders of, and the interest rate
on awards of the State Commission for Human Rights; making
conforming amendments; and providing for an effective date."
2:24:28 PM
RANDY RUARO, Legislative Liaison, Department of Law, suggested
that the committee deal with a pending amendment offered by
Representative Gara.
REPRESENTATIVE GARA said he will not offer Amendment 5.
The committee took an at-ease from 2:26 p.m. to 2:29 p.m.
2:29:36 PM
REPRESENTATIVE GARA moved Amendment 6, labeled 24-GS1110\G.1,
Kane, 1/18/06, as follows [original punctuation provided]:
Page 1, line 2:
Delete "and"
Insert "providing for attorney fees and costs in
cases involving human rights violations;"
Page 1, line 3, following "amendments":
Insert "; and amending Rule 82, Alaska Rules of
Civil Procedure"
Page 6, following line 15:
Insert a new bill section to read:
"* Sec. 11. AS 18.80 is amended by adding a new
section to article 2 to read:
Sec. 18.80.147. Attorney fees and costs. (a) In
an action brought by a person under AS 22.10.020(i), a
prevailing plaintiff shall be awarded costs as
provided by court rule and full reasonable attorney
fees at the prevailing reasonable rate.
(b) Unless the action is found to be frivolous,
in an action brought by a person under
AS 22.10.020(i), a prevailing defendant shall be
awarded attorney fees and costs as provided by court
rule. If the action is found to be frivolous, the
attorney fees to be awarded to the defendant shall be
full reasonable attorney fees at the prevailing
reasonable rate.
(c) In this section, "frivolous" means
(1) not reasonably based on evidence or on
existing law or a reasonable extension, modification,
or reversal of existing law; or
(2) brought to harass the defendant or to
cause unnecessary delay or needless expense."
Renumber the following bill sections accordingly.
Page 7, following line 3:
Insert a new bill section to read:
"* Sec. 15. The uncodified law of the State of
Alaska is amended by adding a new section to read:
INDIRECT COURT RULE AMENDMENT. The provisions of
sec. 11 of this Act have the effect of changing Rule
82, Alaska Rules of Civil Procedure, by requiring the
award of full reasonable attorney fees in certain
cases."
Renumber the following bill sections accordingly.
Page 7, line 7:
Delete "secs. 1 - 13"
Insert "secs. 1 - 14"
REPRESENTATIVE COGHILL objected.
REPRESENTATIVE GARA explained that the Human Rights Commission
(HRC) is short-staff, which causes statute of limitations
problems. He said the HRC cuts off claims earlier and
represents fewer people. He noted that the mission of the HRC
is to help people obtain justice if they were a victim of
discrimination, "and so the whole idea that we should solve a
problem by saying, OK, here's an easier way for you to represent
fewer people, doesn't really go to the mission of the HCR."
Amendment 6 adds language used in a number of other areas of the
law, including consumer protection and landlord/tenant statutes,
he said. He explained that if an individual prevails on a valid
claim, that person will be entitled to compensation for attorney
fees and costs. Currently, victims have difficulty getting an
attorney for small cases, he stated.
REPRESENTATIVE GARA told the committee that there is a concept
in the law called "privatizing the attorney general" that allows
a person to get a private attorney and get compensated for
attorney fees if he or she prevails. He said it will save the
state money, and it finds a remedy for true victims of
discrimination. If a case is frivolous, the individual will
have to pay for the defendant's costs, he said, creating a
disincentive for people to sue with marginal claims. It
protects people who are truly victims of discrimination,
recognizes that the HRC is short-staffed and protects people
against frivolous claims, he concluded.
2:34:32 PM
REPRESENTATIVE GRUENBERG discussed the need for a two-thirds
majority to change procedural rules and whether or not this
amendment actually does that. He said he always thought Rule
82, Alaska Rules of Civil Procedure, was an interpretive rule
and not a procedural rule, and thus the legislature would only
need a majority to adopt this change.
REPRESENTATIVE GARA said that the legislative legal staff put
the requirement of a court rule change in the amendment as a
note of caution.
REPRESENTATIVE GRUENBERG asked if an attorney for the plaintiff
would get a contingency fee based on the contingent fee or the
Rule 82 fee.
REPRESENTATIVE GARA offered his understanding that it is what
the court determines is reasonable.
REPRESENTATIVE GRUENBERG said that normally these cases are
taken on a contingent fee from a plaintiff, and a prevailing
reasonable rate indicates an hourly rate.
REPRESENTATIVE GARA concurred.
CHAIR MCGUIRE asked if the language is identical to the language
in consumer protection laws.
REPRESENTATIVE GARA said he has a cover letter from the Division
of Legal and Research Services saying the language was taken
directly from the Unfair Trade Practices Act provisions for
attorney fees.
2:38:38 PM
REPRESENTATIVE COGHILL asked if "frivolous" has the same meaning
in the amendment as in the Unfair Trade Practices Act.
REPRESENTATIVE GARA said, "Yes, it would be a claim filed with
no good faith basis in factor law."
REPRESENTATIVE COGHILL said his concern is that there would be
"differing bars" in human rights issues as opposed to labor
practices. He added, "I'm just concerned that in human rights,
frivolous might have two problems. One is the chilling effect
of having a bar that might be higher-I don't know. The other
one is that in court, how you would have a subjective case
appear under the fair labor standards. So I'm just nervous; I
just don't know. And, are we importing a standard that actually
applies in the situation that we're trying to apply it?"
CHAIR MCGUIRE noted that Rule 11, Federal Rules of Civil
Procedures, says that there must be a good faith basis for
presenting a case. She said there is already a frivolity
element that must be factored in. She added that this is just
extending it out, and it is not a new concept. In giving the
opportunity to recover reasonable attorney fees, Representative
Gara wants to make it clear that that shouldn't be an incentive
for people to get counsel. She offered an example wherein
someone files a false claim against someone and is simply
abusing the system.
REPRESENTATIVE COGHILL said labor practice issues are more
easily provable because there will be employment and pay
records, whereas in human rights, frivolity could be harder to
prove.
REPRESENTATIVE GARA noted that it really doesn't matter what
area of law, frivolous means there were no true facts to support
a claim.
REPRESENTATIVE COGHILL noted that the bill has timelines and
rules for complaining, and now "you get down to my word against
your word in these particular cases."
REPRESENTATIVE GRUENBERG said there is also Rule 95, Alaska
Rules of Civil Procedure, and federal Rule 11 allows sanctions
if an attorney signs something that is frivolous. He added that
Alaska has gotten a bit away from that because Rule 95 was
adopted, which says an attorney can be fined up to $50,000 for
filing a frivolous lawsuit.
2:45:18 PM
MR. RUARO said there were four reasons to oppose Amendment 6.
He said the language doesn't fit the title. The second reason
is because Superior Court Judge Collins said the legislature is
restricted on enacting attorney fee rules by statute, he stated.
REPRESENTATIVE GRUENBERG interjected to say, "I think she said
that we didn't do it by a two-thirds vote and have it comply
with the rule, but this would cure that problem."
MR. RUARO said the other point is he doesn't know that there has
been a showing that current Rule 82 fees haven't been adequate
in these cases. "I don't know that there is a need for it."
REPRESENTATIVE COGHILL asked then why have a Human Rights
Commission. "Is it a safety valve or a whole new avenue?" he
queried. He said he is not sure if that is what the committee
is going to do. He said, "Certainly, I'm not one that thinks
that if you're going to have a system of appeal based on your
human rights that you wouldn't want to bar a way to go to court.
But it seems to me that we've designed a way to go through the
Human Rights Commission. So now, if we start another avenue,
I'm not too sure that that's the right policy call." He said
maybe it is worthwhile to have a recourse for an individual who
gets a wrong decision from the HRC. "If they refuse to make a
decision, I guess then the question would be what is the
recourse to an individual, because I think that's the intention
of the amendment," he said.
CHAIR MCGUIRE noted that the first approach was to give an
individual a year to bring a case. But the HRC repeatedly said
there are some legitimate cases that will be "cut off" because
the budget isn't enough to support the committee's language that
gives an individual a year to file. She said this [amendment]
may not be the preferred route but there are human rights
violations occurring and the state does not want to make it a
priority by committing to it in the budget beyond 180 days. She
said the first question to ask is if committee members want to
commit to supporting plaintiffs beyond the 180-day limit, and if
not, members ought to vote against the amendment and vote to
rescind the [provision] that increases the time period to 365
days. She said if members believe in making that time
extension, there are only a couple of avenues to solve it. One
is to keep it there and provide adequate funding and the second
is to do something akin to Amendment 6. She agreed that it is a
policy shift, but the same thing is done for consumer
protection, for example.
REPRESENTATIVE GARA noted that the language is a way to expand
access to justice without spending state money. The only other
alternative, he stated, was to tell the governor to put more
money into the HRC. The governor has decided not to do that.
He said people will have the option of going to the HRC or to
court. [Those options] are not changing, he said, but an
individual will be able to go to court "more feasibly."
2:51:11 PM
REPRESENTATIVE GRUENBERG said Mr. Ruaro raised two issues that
the committee has not discussed, including the title, which can
be solved with a concurrent resolution. With regard to the
difficulty in getting counsel, he suggested that Representative
Gara speak to that since he has practiced in that area. He
noted that he had an equal-pay case and the only reason the case
could be carried through was because the standard was full
attorney fees on an hourly basis. "So it is very important that
we do this," he opined. He spoke to Representative Coghill's
question of why have a HCR if Amendment 6 passes. He said the
HCR has the authority not to take any case, just like any
prosecutor, he said, and that [decision] is non-reviewable.
MR. RUARO said Representatives Gruenberg and Gara are speaking
from the position of being solo practitioners, and he said he
once was an associate in a [law] firm and was a fixed cost to
that firm. He said there are firms that will not be burdened
with an associate taking on a case. He also opined that
employment discrimination is an area with a lot of confusion; it
is often a he-said-she-said situation. The HCR dismisses about
65 percent of its cases because there is no substantial evidence
of discrimination. He said if the amendment is adopted, then
"everyone of those employers who was found not to have done
anything wrong, basically, would be subject to a demand letter
that says, 'you need to pay now or you're going to be subject to
full attorney's fees later.'" It ratchets up the leverage for a
settlement, so a lot of employers who did nothing wrong will get
one of those letters, he warned. He said Rule 82 provides
sufficient recovery for fees currently.
2:55:34 PM
REPRESENTATIVE ANDERSON surmised then, that two-thirds of the
time there is no merit, but [employers] will get a threatening
letter saying they will pay attorney fees and costs. He said he
has been in the opposite case in defending the employer.
MR. RUARO concurred.
CHAIR MCGUIRE asked if the amendment fails, will Mr. Ruaro still
push his position of withdrawal of Amendment 3.
MR. RUARO explained that he has worked with Representative
Anderson on a replacement to Amendment 3, which would take out
any reference to a statute of limitations as a set period of
time and leave it at the discretion of the HRC as it is now.
Since the statute is a function of policy and available
resources, it would be best for the HRC to continue to control
it. He said the HRC has done it that way for quite a few years.
CHAIR MCGUIRE said that really means that you would go back to
180 days.
MR. RUARO concurred, but the HRC could review it.
The committee took an at-ease from 2:57 p.m. to 2:58 p.m.
2:57:57 PM
REPRESENTATIVE GARA remarked that Mr. Ruaro shouldn't have
spoken about Representative Gara's law practice. He said he
doesn't understand Mr. Ruaro's comment about working for large
firms. The reason people can't get representation in employment
cases is that Rule 82 says that attorneys get only 20 percent of
their fees and costs when they win their case, he noted. A
person with a small case won't get paid representation, and that
is the whole point of the Consumer Protection Act and labor laws
and of this amendment, he stated. "If you have a good case we
want you to be able to get your recovery of your attorney's fees
so that you can say to an attorney from the outset, 'Look, I
don't have a very big case, but if we win you'll get
compensated.'"
REPRESENTATIVE ANDERSON said Representative Gara does not have
statistics to show that people not going to attorneys for such
cases.
REPRESENTATIVE GARA said that the committee is spending too much
time talking about the subject, but he had "a lot of people come
to the law firm...with employment cases." He said damages in
employment cases tend to be very low.
3:00:56 PM
A roll call vote was taken. Representative Gara, Gruenberg,
Kott and McGuire voted in favor of Amendment 6. Representatives
Coghill, Wilson and Anderson voted against it. Therefore,
Amendment 6 carried by a vote of 4-3.
REPRESENTATIVE ANDERSON moved to offer Amendment 7 as follows
[original punctuation provided]:
Page 2, line 3:
Delete "new subsections"
Insert "a new subsection"
Page 2, lines 7-9:
Delete all material.
REPRESENTATIVE GRUENBERG objected.
REPRESENTATIVE ANDERSON explained that Amendment 7 provides a
deletion on page 2 "so there is not plural of reference to
subsections for lines 4 through 6, related and attached to the
meat of the amendment, which is deleting lines 7 through 9 on
page 2, which states that a complaint can be filed not later
than 180 days. And what that means is that we're taking out a
reference in the bill setting a statute of limitations to file a
charge through the commission. And it would revert back to what
the current regulations state. And my opinion, and the
Department of Law's opinion, was that the statute that we have
here is really a function of policy and it's better to leave it
to the regulations to interpret how many days you have to grieve
or to make a complaint. And that that will be evolving and will
change relative to the commission and regulatory oversight. And
it shouldn't be indelible in statute." He questioned the
effects of the last amendment and if Amendment 7 is still
necessary.
MR. RUARO suggested that Amendment 7 is still necessary.
3:03:29 PM
CHAIR MCGUIRE relayed that she supports either concept, and that
human rights are very important. She added that she is
sympathetic to testimony from the department and the HRC that
there aren't enough resources "and there needs to be a reduction
in time from what this committee decided, then I am supportive
of Representative Gara's policy of allowing some of the folks in
the private sector to have an incentive to pick up the work that
needs to be done to ensure that we have a good basis of human
rights in this state." When people are "sexually discriminated
against" or discriminated against based on their gender or skin
color, it is sensitive and the tendency, especially for women,
is to put it aside and try to work through the issues and put on
a brave face, she said. A complaint filed after 180 days does
not negate its reality, she added. "It may be that that person
tries to work it out, and within a year they realize they
can't," she stated. She said her instinct is that "the minute
that this committee...adjourns, ...you guys are going to come up
with an action plan for how to withdraw the substantive policy
of Representative Gara's amendment. And so that when this bill
appears on the floor, it's going to not only have that provision
out, but it's going to have a reversal of the days, which is
unacceptable to me."
MR. RUARO noted that with regard to the statute of limitations,
he said that one would still have the Equal Employment
Opportunity Commission (EEOC) available with a 300-day limit.
He said he found out that the two-year statute of limitations
for the court system provides access to Rule 100, Alaska Rules
of Civil Procedure, which says that a party can ask for
mediation and arbitration. He said he thinks there are a lot of
different avenues.
3:07:20 PM
CHAIR MCGUIRE asked what the basis is for filing a Rule 100
claim.
MR. RUARO explained that "basically the party has to desire to
have mediation or arbitration occur. I haven't seen a court
deny a motion yet. I filed several of them in private practice;
they were never denied."
CHAIR MCGUIRE said she is not that compelled by the EEOC because
she doesn't support making a policy stating that human rights
are a federal issue, and the state doesn't need to worry about
them. She said she is willing to explore Rule 100.
3:08:14 PM
REPRESENTATIVE GRUENBERG said he is not aware of anywhere else
in the law where the legislative authority is delegated on a
statute of limitations, which is traditionally statutory, to an
executive agency. He surmised that that is an unconstitutional
delegation of authority.
MR. RUARO said he doesn't have a case, but he thinks it has been
that way for over 10 years.
REPRESENTATIVE GRUENBERG said that would have some weight, but
not a lot if it has never been challenged. He is concerned
about going on record delegating to the agency. With respect to
Rule 100, it is a general mediation, so "why have a human rights
commission if you're going to turn these cases all over to
general arbitration or mediation?" He said he doesn't know that
there's any authority under this to order arbitration without
stipulation of the parties. Mediation is nonbinding, he pointed
out.
REPRESENTATIVE GARA remarked that Mr. Ruaro's reference to Rule
100 bolsters the case for [Amendment 6]. He said a person
cannot get mediation unless there is a lawsuit, and that person
will not be able to find an attorney to file a lawsuit without
the amendment.
MR. RUARO disagreed that there is an inability to find attorneys
for such cases. He said small cases provide some of the best
returns in dollars per hours, based on his own experience.
3:12:22 PM
REPRESENTATIVE GARA asked if those were human rights cases.
MR. RUARO said no.
REPRESENTATIVE GARA contended that human rights cases are very
different.
3:12:48 PM
A roll call vote was taken. Representative Anderson voted in
favor of Amendment 7. Representatives McGuire, Coghill, Wilson,
Kott, Gara and Gruenberg voted against it. Therefore,
Amendment 7 failed by a vote of 1-6.
3:13:29 PM
REPRESENTATIVE GRUENBERG moved to report HCS SB 132(STA), as
amended, out of committee with individual recommendations and
the accompanying fiscal notes.
The committee took an at-ease from 3:14 p.m. to 3:14 p.m.
CHAIR MCGUIRE, after determining that there were no objections,
announced HCS SB 132(JUD) was reported from the House Judiciary
Standing Committee.
REPRESENTATIVE GRUENBERG moved that the committee introduce a
concurrent resolution approving a title change to reflect the
amendments. Hearing no objections, it was so ordered.
REPRESENTATIVE GRUENBERG moved to waive the referral of the
concurrent resolution to the House Judiciary Standing Committee,
"so it can go directly to the floor with the bill."
REPRESENTATIVE COGHILL said he thinks it would be referred to
the next committee of referral.
REPRESENTATIVE GRUENBERG said okay.
REPRESENTATIVE ANDERSON noted that if the bill changes, then the
House Concurrent Resolution will be meaningless.
[HCS SB 132(JUD) was reported from committee.]
HB 379 - CONTROLLED SUBSTANCES, INCL. ANALOGS
3:15:32 PM
CHAIR MCGUIRE announced that the final order of business would
be HOUSE BILL NO. 379, "An Act relating to controlled
substances." She noted that the committee was still on
Version G, and that she had amendments that she agreed to offer
on behalf of the sponsor.
MICHAEL PAWLOWSKI, staff to Representative Kevin Meyer, sponsor
of HB 379, relayed that, according to the chemists at the
[Alaska's Scientific Crime Detection Laboratory], there are
legitimate industrial uses for the analogues to Gamma Hydroxy
Butyrate (GHB). Thus, Amendment 1 seeks to protect those
limited uses. Amendment 1, labeled 24-LS1396\G.1, Luckhaupt,
2/6/06, reads as follows [original punctuation provided]:
Page 1, lines 13-14:
Delete all material and insert:
"(2) when intended or used for human consumption:
(A) gamma butyrolactone(GBL);
(B) 1,4 butanediol(BD);
(C) gamma hydroxyvalerate(GHV);
(D) gamma-valerolactone 4-pentanolide(GVL)."
MR. PAWLOWSKI said Amendment 1 adds GHV and GVL to the bill,
which are federally recognized analogs to GHB that the [United
States] Drug Enforcement Agency has identified. It is in
conjunction with Amendment 2, he added.
3:17:31 PM
CHRIS BEHEIM, Supervisor, Scientific Crime Detection Laboratory,
Anchorage, said he agrees that GHV and GVL are listed as
analogs, and there are legitimate uses for the 1,4 butanediol
and GBL as solvents, but he can't say that they are used in
Alaska for any purpose. They are used for the manufacture of
plastics and certain fibers, he said, but it makes sense to have
them controlled for illicit uses.
3:18:12 PM
CHAIR MCGUIRE moved to adopt Amendment 1. Hearing no
objections, Amendment 1 was adopted.
CHAIR MCGUIRE moved to adopt Amendment 2 as follows [original
punctuation provided]:
Page 1, line 15, through page 2, line 23:
Delete all material.
Renumber the following bill section accordingly.
MR. PAWLOWSKI said Section 2 of the bill was broad and over
reaching-regulating "chemicals that we didn't want to touch."
Hearing no objections, Amendment 2 was adopted.
REPRESENTATIVE GARA said he wants to make sure that the
legislation only outlines substances that are being used in the
"date rape" drug and nothing beyond that. He said that on page
1, line 6, it says "any of these materials...or which contain
any of its salts or isomers." He asked if subsets of these
chemicals are made illegal by the legislation and if there are
legitimate uses for them.
MR. BEHEIM noted that there are legitimate uses for GHB,
including a prescription drug that is categorized as schedule
III federally; however, the GHB that is most encountered would
be in the illicit form. He said the GHB comes in different
forms: an acid or a salt of an acid.
REPRESENTATIVE GARA asked if the bill should be more detailed to
protect legal uses.
MR. BEHEIM said that in the federal schedule, GHB is in both
schedule I--which has no legitimate use-and in schedule III. He
said if it is abused, the schedule III substance becomes a
schedule I substance.
3:21:16 PM
MR. PAWLOWSKI relayed that salts or isomers are standard
descriptions, and making a salt is something that he is vague
about. He said with the language of "when intended or used for
human consumption," he believes that the bill is "getting away
from legitimate uses." He added, "As to the medical side of it,
I'm honestly not sure, but I thought that was exempted under
Controlled Substances Act because of the way you get into the
violation in the first place."
MR. BEHEIM gave an example with regard to salts. He said
cocaine is encountered in two forms, one as the hydrochloride
salt and the other is as the base, which is crack cocaine. Many
drugs come in many forms, he added, and there are also different
isomers.
REPRESENTATIVE GARA said he just wants to make sure that
substances with legitimate uses are not being made illegal under
this legislation. He noted that Mr. Beheim said there was a
prescription form of GHB.
MR. BEHEIM pointed out that GHB is the "same, exact chemical" in
a prescription form, which is a sodium salt, but when there is a
legitimate prescription it is a federal schedule III substance.
He said the same chemical in the same form can be illicitly
abused, so both forms are controlled but they are in different
schedules.
MR. PAWLOWSKI noted that oxycodone is covered as a schedule I,
but somehow the legitimate use is protected. "This would put
GHB in the same schedule," he said.
3:24:27 PM
REPRESENTATIVE GARA pondered whether there is a need to add
language that says "except for that form of GHB that is
permitted by prescription use."
CHAIR MCGUIRE said she does not know how that is handled,
because there are things in the schedule where there is no
evidence "that prosecutors are out there running rampant
prosecuting people for these legitimate uses."
REPRESENTATIVE GRUENBERG posited that adding something to
schedule I A allows it to be prescribed.
REPRESENTATIVE COGHILL suggested doing research on that point.
CHAIR MCGUIRE expressed that the bill will go to the House
Finance Committee, and she said it is likely not the sponsor's
intent to criminalize uses of reasonable substances. She added
that she is comfortable passing the bill out with the assurance
from Mr. Pawlowski that he will send the committee a memo about
how legitimate uses are protected.
3:27:03 PM
MR. PAWLOWSKI agreed to do so.
REPRESENTATIVE GRUENBERG moved Conceptual Amendment 3 in order
to narrow the title as tightly as possible because he does not
want to see a marijuana bill coming back in disguise.
MR. PAWLOWSKI suggested a title that says, "including GHB and
its federally recognized analogs."
REPRESENTATIVE GRUENBERG asked who the drafter is.
MR. PAWLOWSKI said Jerry Luckhaupt.
REPRESENTATIVE GRUENBERG requested a final version of the bill
in the aforementioned memo to the committee from the sponsor.
3:28:38 PM
CHAIR McGUIRE, after determining that there were no objections,
announced that Conceptual Amendment 3 was adopted.
REPRESENTATIVE WILSON moved to report HB 379, as amended, out of
committee with individual recommendations and the accompanying
fiscal notes.
CHAIR MCGUIRE said the fiscal note is pending.
CHAIR McGUIRE, after determining that there were no objections,
announced that CSHB 379(JUD) was reported out of the House
Judiciary Standing Committee.
ADJOURNMENT
3:29:04 PM
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:29 p.m.
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