Legislature(2015 - 2016)BELTZ 105 (TSBldg)
02/18/2015 01:30 PM Senate JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| SB30 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| *+ | SB 51 | TELECONFERENCED | |
| += | SB 30 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 30-MARIJUANA REG;CONT. SUBST;CRIMES;DEFENSES
1:36:06 PM
CHAIR MCGUIRE announced the consideration of SB 30. She reviewed
the progress on the bill. The substantive change thus far has
been to remove marijuana from the controlled substance statutes.
Should the bill pass, marijuana will be treated as a regulated
substance, much like alcohol. She clarified that the bill is not
a wholesale change to allow marijuana use any time any place.
She outlined the areas of discussion for this hearing. The first
issue is over the use of the phrase "notwithstanding any other
provision of the law." The second issue relates to delinquent
minors and whether certain conduct should be a violation that
appears on CourtView or a misdemeanor that does not appear on
CourtView. She noted that Senator Coghill has an amendment for
the committee to consider. The third matter is a discussion from
Department of Health and Social Services (DHSS) about the fiscal
impacts of the bill. The fourth topic relates to the definition
of "public." She noted that Senator Coghill has an amendment for
the committee to consider on this matter. Time permitting the
final discussion points will be about concentrates and one
ounce, otherwise these matters will be taken up on Friday.
1:44:15 PM
SENATOR WIELECHOWSKI joined the committee.
CHAIR MCGUIRE asked Senator Costello to discuss the matter she
suggested incorporating in the committee substitute (CS). [The
discussion and testimony during this meeting related to version
S CS for SB 30 although it was neither mentioned nor adopted.]
SENATOR COSTELLO said she requested the legislation include an
education component telling what the law actually does.
1:45:21 PM
JEFF PICKETT, Contract Attorney, provided an overview of the
phrase "notwithstanding any other provision of law" paraphrasing
the testimony he submitted February 18, 2015:
• How it's used/interpreted
o It is used 7 times in the Initiative; the current
version of SB 30 has removed the phrase. Whether
to include it has become an issue.
o Courts refer to the phrase as a "term of art"
designed to implicitly repeal or amend existing,
conflicting laws
o Important to note: the phrase cannot bind a
future legislature from repealing the phrase
o Drafters strongly disfavor it-possibility for
unintended consequences; not as elegant; although
it still is used, especially in certain contexts
like trade law.
o Courts acknowledge the breadth of the literal
meaning, but at the same time, in most of the
cases I've reviewed they look at the intent of
the legislature and will often restrict the
phrase.
ƒDid the legislature intend a literal
meaning? Did it intend a more
circumscribed application of the phrase?
ƒCourts will attempt to harmonize,
whenever possible, other statutory
language that might seem to conflict
with the "notwithstanding" provision.
ƒThe Alaska Supreme Court has construed
the phrase according to its "plain
meaning" and found conflicting law to
be barred by the phrase.
ƒOn the other hand, the Alaska Supreme
Court has also ruled that meaning of
the phrase can be limited by context,
common sense, and legislative history.
ƒAt the end of the day, the phrase will
be construed according to the
principles of statutory construction
set forth by the Alaska Supreme Court.
1:51:07 PM
• Pros
o Reflects language voters voted in favor of-
acknowledges their intent.
o Trumps all laws in conflict: civil, regulatory,
local. Concern is that without the phrase,
conflicting laws might inadvertently not be
amended in the current process and render parts
of the Initiative ineffective.
o Example: AS 10.20.360 - liquidation of a
corporation's assets if actions of directors or
officers are illegal.
o Belt and suspenders-marijuana illegal for more
than half a century in our statutes and permeates
them. Might miss something in this go-around.
o Time crunch of getting this bill out makes it
more likely something might be missed and harder
to specify all laws which SB 30 preempts.
o Phrase used elsewhere in Alaska statutes.
o Phrase used in Colorado's marijuana law, so there
is precedent for it.
• Cons
o Not considered effective drafting by authors of
style manuals
o May be overbroad-the Alaska Supreme Court has
ruled that the phrase can abrogate conflicting
common law. Would a civil claim for nuisance
withstand the phrase?
o May cause court to interpret SB 30 as trumping
laws Legislature did not intend to trump
o The phrase is arguably superfluous, to the extent
that the courts are empowered to review
legislative history and employ other issues of
statutory construction to determine whether the
Legislature intended SB 30 to trump a conflicting
law.
o The personal use protections are also
constitutionally protected, so the
"notwithstanding" language is arguably
superfluous with respect to personal use and
possession.
1:54:31 PM
SENATOR COSTELLO asked if any cases have been brought in
Colorado that center on the use of the notwithstanding phrase.
MR. PICKETT replied he hasn't found one, but he would do
additional research.
SENATOR COGHILL said it would be interesting to know if this
issue was addressed when Colorado amended its constitution.
MR. PICKETT agreed to send a follow up memo on the question.
1:56:03 PM
TIM HINTERBERGER, Ph.D., Spokesman, Campaign to Regulate
Marijuana like Alcohol (CRMA), expressed appreciation for Chair
McGuire's earlier comment drawing a parallel between this effort
and the repeal of alcohol prohibition. He expressed further
appreciation for respecting the will of the people and being
responsive to suggestions. He cited in particular restoring Sec.
17.38.020, extending to employees the same protections given to
registered marijuana establishments, and amending the definition
of marijuana concentrates. He stated that CRMA can support the
latest draft [version S] although a few concerns remain.
Rachelle Yeung would detail those concerns.
1:58:13 PM
RACHELLE YEUNG, Legislative Analyst, Marijuana Policy Project,
said that in the interest of time she would focus on the
"notwithstanding" issue. She read from the following letter:
At issue is the phrase "notwithstanding any other
provision of law," which appears in AS 17.38.020,
17.38.060, 17.38.070(a), 17.38.070(b), 17.38.070(c),
17.38.070(d), and 17.38.070(e).
The "notwithstanding" language is at the very heart of
the initiative, which was enacted by 53% of Alaska
voters three months ago. Measure 2 was enacted to
ensure that adults and those working at licensed
marijuana businesses are not penalized for certain
marijuana-related activities, and that their conduct
is lawful under state law and immune from seizure and
asset forfeiture. Removing this voter-enacted phrase
would violate voters' intent.
This crucial phrase ensures that the initiative's
voter-enacted legal protections trump each and every
other state statute and local ordinance that may be
contrary to them. This includes not only the state's
criminal laws related to marijuana (which the
legislature is wisely looking at amending), but also
state civil laws and local ordinances. Neither the
Campaign to Regulate Marijuana Like Alcohol nor the
Legislature and its staff can be absolutely certain
that each and every law that could be interpreted in a
way that is contrary to Measure 2 is being amended.
Indeed, early drafts of SB 30 removed or severely
limited legal protections for behavior that was
legalized under Measure 2 - such as striking legal
protections and replacing them with a mere defense;
prohibiting the mere display of permissible amounts of
marijuana in public; prohibiting the use of
permissible amounts of marijuana in public view; and
reducing the amount of marijuana that adults could
possess on the premises where their personal plants
were grown. The campaign understands that some of
these concerns are being addressed in new drafts of
the bill. However, this illustrates the realistic odds
that not all statutes inconsistent with Measure 2 will
be immediately identified and amended to be consistent
with the initiative.
Furthermore, even laws that do not explicitly refer to
"marijuana" may put an adult or business engaging in
lawful marijuana-related behavior at legal risk.
Absent the "notwithstanding" clause, laws that refer
to "illegal" activity may be interpreted by courts as
applying to activities that were made lawful by Alaska
voters under Measure 2, but that remain illegal under
federal law. For example, under Measure 2, lawfully
registered corporations may engage in the possession,
cultivation, processing, repackaging, storage,
transportation, display, transfer, and delivery of
marijuana. Such actions are to be considered
legitimate business interests. Nevertheless, in an
action by a member of the corporation, AS 10.20.360
allows for the liquidation of the assets and business
of the corporation if "the acts of the directors or
those in control of the corporation are illegal."
The "notwithstanding" language of Measure 2 would make
clear that AS 10.20.360 does not apply as it relates
to persons or corporations engaging in lawful
marijuana-related activities. Absent that language, a
judge could rule that the marijuana business'
activities violated AS 10.20.360 because marijuana
remains an illegal, controlled substance under federal
law. Please note that this was simply the first
statute that the campaign identified as potentially
contradictory. We are certain that there are many more
such examples throughout the Alaska statutes.
In addition to concerns about existing laws that may
be counter to 17.38.020 and 17.38.070, laws that may
be drafted in the future may also unintentionally
contradict the legal protections of Measure 2.
Preserving the "notwithstanding" language would ensure
that such laws, future or present, do not penalize
acts by adults that voters intended to be lawful. We
recognize that the legislature will have the legal
authority in two years to make any revisions it wishes
to Measure 2. However, we hope that it will continue
to be guided by the will of voters. The
"notwithstanding" phrase will prevent inadvertent
revisions and ensure that Measure 2 and voters' intent
is readily apparent when the legislature considers
future marijuana-related legislation.
While we understand the language is disfavored by
drafting, it is used many times in Alaska statutes
already. Surely, Alaska's statutes can tolerate a few
more uses of the phrase to ensure that the will of the
people is carried out. An identical phrase is used in
Colorado's constitution under the voter-enacted
Amendment 64, which legalized, regulated and taxed the
adult use of marijuana.
2:04:16 PM
BRUCE SCHULTE, Coalition for Responsible Cannabis Legislation,
stated support for the comments from the Marijuana Policy
Project and appreciation for the evolution of the bill. It is
now legislation that CRCL can support. He acknowledged in
particular the refinement of the definition of public
consumption to allow an opportunity for a licensed event to have
limited consumption on the premises.
He stated that while CRCL supports the effort to discourage the
use of butane in Sec. 17.38.200, the current language makes it a
first degree offense for both an individual and a registered
business to use a volatile gas. He suggested eliminating Sec.
17.38.200(a)(1)(B)(v), because a registered marijuana
establishment is where such activity should take place.
2:06:58 PM
SENATOR COGHILL said he has trouble with the definition of
marijuana as it relates to concentrates and that makes the
notwithstanding language particularly worrisome.
MR. SCHULTE said he's given it considerable thought and because
of the definition in the initiative he's inclined to treat
flowers and concentrates without distinction. He suggested it
may be appropriate to address limits at the retail level.
SENATOR COGHILL opined that two-thirds of an ounce of hash oil
is very different than a half ounce of marijuana. He said he
struggles with how to keep people accountable and his view is
that inserting the notwithstanding language opens a huge
problem.
MR. SCHULTE said he understands the concern but he doesn't
believe he could offer a suggestion to solve the problem.
SENATOR COGHILL asked him to continue to give it thought.
MR. SCHULTE clarified that CRCL is committed to public safety
and welfare. He agreed to continue to give it more thought.
SENATOR COGHILL commented that he has an amendment to the
definition that he believes describes a fair value.
2:13:05 PM
SENATOR WIELECHOWSKI said it's fair for the committee to discuss
how to define an ounce. He questioned at what point the plant
material becomes an ounce and not part of the plant.
MR. SCHULTE said it's easier to define in a retail environment.
He noted that the flower weighs more than the leaves because of
moisture content and most plants yield 2-6 ounces of flower and
leaf.
SENATOR WIELECHOWSKI said he'd like a record of the intent of
the initiative because he can guarantee that in the next year or
so there will be a situation where the police go into a person's
house and see the legal number of plants but also plant material
that's fallen to the ground.
MR. SCHULTE said his understanding of the text of the initiative
is that an individual can have up to six plants, three of which
are mature and the product produced from them. He acknowledged
that the product could span a range in weight.
2:16:19 PM
CHAIR MCGUIRE asked for help defining the amount of marijuana
that would be equivalent to walking around with a case or two of
alcohol. The intent is to protect public safety. "If one ounce
in the liquid form really is not the same at all as one ounce in
a dried form, let's be reasonable," she said.
MR. SCHULTE said he's heard people talk about having a couple of
six packs of beer, a bottle or two of hard alcohol and several
bottles of wine in their home at any one time and he's heard
people characterize their consumption of marijuana in largely
the same way. They might have a quarter ounce of flower, a
couple of grams of hash, and a gram or two of hash oil. He
agreed that concentrates are, by definition, more concentrated
than a flower, but the difference is in consumption. A person
might consume an eighth ounce of flower in an evening, but not
that same quantity of hash or hash oil. He said he understands
the concern, but he doesn't believe that the potential negative
health consequences are the same for over consumption of
marijuana as opposed to drinking a liter and a half of liquor.
He reiterated his belief that the public would be better served
by addressing this at the retail level.
SENATOR COGHILL opined that three quarters of an ounce of hash
oil could be similar to a liter of 100 proof alcohol, whereas
three quarters of an ounce of leafy material likely is not.
SENATOR WIELECHOWSKI read the definition of "usable marijuana"
in Oregon's medical marijuana law and suggested that it may
provide guidance.
CHAIR MCGUIRE asked Mr. Schulte if he had anything more to add.
MR. SCHULTE offered his personal experience and opined that
consumption of marijuana has evolved over the last several
decades from leaves and flowers to concentrates. He agreed that
by definition concentrates are more concentrated, but disagreed
that they are out of hand hazardous.
2:27:16 PM
HILARY MARTIN, Drafting Attorney, Legislative Legal and
Research, Legislative Affairs Agency, informed the committee
that legislative drafters try to avoid use of the phrase
"notwithstanding any other provision of law" because it
introduces uncertainty in the legislation and potentially leaves
the interpretation to the court. She suggested that if the
legislature wants to specifically cancel something out, it's
better to say that.
SENATOR COGHILL offered his perspective that the notwithstanding
language seems reasonable if it only addresses the narrow
category in the initiative, but it becomes confusing and less
valuable when it applies to all the alcohol statutes.
MS. MARTIN reiterated that from a drafting standpoint the phrase
introduces uncertainty.
SENATOR COSTELLO reviewed Mr. Pickett's memo on the
notwithstanding phrase and suggested that the committee may be
trying to micro-manage the court. She asked if someone could
talk about whether the court has some flexibility that the
committee doesn't recognize in applying that language.
CHAIR MCGUIRE cautioned that would be difficult because it would
be on a case-by-case basis.
2:32:21 PM
DOUG WOOLIVER, Deputy Administrative Director, Administrative
Staff, Alaska Court System, said he agrees with Mr. Pickett when
he points out that a general rule for any court is to try and
reconcile statutes rather than reading them in a way that
creates a conflict. That's how Alaska courts interpret statutes,
he said.
2:33:26 PM
CHAIR MCGUIRE turned to Amendment 1, [presumably 29-LS0231\S.5]
relating to delinquent minors appearing on CourtView.
SENATOR COGHILL explained that the amendment says a violation by
a delinquent minor should be treated like a hunting, fishing, or
alcohol citation for a minor. He reasoned that it's a matter of
accountability and equal justice.
MR. WOOLIVER advised that this is a decision for the legislature
and the court can work with it either way. He confirmed that
violations, even for minors, appear on CourtView until they rise
to the level of a crime. [Version S] makes the matter
confidential even though it isn't handled by the Division of
Juvenile Justice (DJJ). CourtView would recognize the date of
birth and the name wouldn't appear; if the minor were to contest
the violation, it would be in a closed hearing.
CHAIR MCGUIRE asked Tracey Wollenberg to provide the Public
Defender perspective.
2:36:20 PM
TRACEY WOLLENBERG, Deputy Public Defender, Appellate Division,
Alaska Public Defender Agency, reminded the committee that she
testified to this at the last hearing. She recapped that the key
point is to keep the records confidential. If the minor's name
appears on CourtView, it could create a barrier that is beyond
what is commensurate with the conduct that's being punished.
SENATOR COGHILL asked if she's seen those detrimental effects
for minor consuming alcohol.
MS. WOLLENBERG highlighted that the minor consuming alcohol
statutes were amended several years ago because the probation
time was impacting eligibility for the military. She opined that
the consequences of having the records accessible can't be fully
anticipated any more than they were when the probation statute
initially was passed.
SENATOR COGHILL asked if she feels that traffic violations
should be confidential.
MS. WOLLENBERG replied the stigma is different for the two types
of violation because marijuana use is still criminal conduct
under federal law and in many states.
SENATOR COGHILL said he contests that to some degree, but he'll
have the conversation later.
CHAIR MCGUIRE asked if a parent or guardian is notified of a
violation.
MS. WOLLENBERG explained that there is a requirement in juvenile
court to encourage parental involvement. She thought there was a
similar requirement in adult court but she'd have to do some
research.
CHAIR MCGUIRE asked her to check on that before Friday and also
to be prepared to offer a suggestion for both marijuana and
alcohol that looks at diversion and encourages treatment.
SENATOR COGHILL asked to hear from both Matt Davidson and Kaci
Schroeder regarding the proposed amendment.
2:45:36 PM
KACI SCHROEDER, Assistant Attorney General, Criminal Division,
Department of Law, advised that regardless of what happens with
the amendment, the language starting on page 1, line 9, is
needed as long as there are provisions in the bill regarding
juveniles charged with violations.
CHAIR MCGUIRE restated that Department of Law's testimony is
that the second part of the amendment is needed to say that if
the conduct is changed to a violation, DJJ will no longer have
jurisdiction.
MS. SCHROEDER agreed.
2:47:00 PM
MATT DAVIDSON, Social Services Program Officer, Division of
Juvenile Justice, Department of Health and Social Services,
offered to answer questions.
CHAIR MCGUIRE asked if parents would be notified if their minor
child receives a violation for marijuana.
MR. DAVIDSON replied that would be up to the district court, but
his assumption is that the juvenile could pay the ticket without
parental notification.
SENATOR COGHILL asked how it works for minors consuming alcohol.
MR. DAVIDSON replied that, too, is outside the jurisdiction of
the Division of Juvenile Justice. It's a district court offense.
Under the bill MIM 1 and MIM 2 would remain with DJJ and
parental involvement is a large part of that process. Speaking
to the diversion portion, he explained that not every child who
is referred for a criminal offense sees a judge. Rather, they
meet with a probation officer who assesses their needs and risk
of reoffending. If they've been referred to DJJ a number of
times, they're more likely to see a judge and get adjudicated
for the offenses.
SENATOR COGHILL asked how it affects a juvenile's record if the
offense rises to a misdemeanor.
MR. DAVIDSON clarified that he wasn't advocating that change and
it would be problematic for DJJ because it would create a new
class of status offenses. However, if the legislature made that
decision, DJJ would handle the cases the same way it does now.
2:51:05 PM
SENATOR COGHILL said he agrees there is a stigma associated with
marijuana because it's a controlled substance under federal law.
The dilemma is how to hold juveniles accountable without
creating an insurmountable barrier that will keep them from
qualifying for something like military service.
MR. DAVIDSON suggested the members look at the draft rewrite of
Title 4 to see if the confidentiality provisions might be
applicable to marijuana.
SENATOR COGHILL recalled that Nancy Meade testified about
potentially keeping the minor's name on CourtView while the case
is active and then it would be removed once the case is closed.
MR. DAVIDSON noted that DHSS maintains a list of barrier crimes
for specific positions and opined that a marijuana ticket
probably wouldn't be a barrier to most of the jobs on that list.
SENATOR COSTELLO advocated looking at the recommendations in the
Title 4 rewrite regarding minors involving alcohol before moving
forward.
CHAIR MCGUIRE asked if Ms. Meade had that information.
SENATOR COGHILL clarified that Senator Micciche was working with
the Department of Law and the ABC Board was an advisor as they
looked at minor in possession and consuming alcohol. His
understanding is that they were leaning toward it being a
violation so the question is whether or not the names should
appear on CourtView. He stated support for early accountability
and added that it was probably the reason for a diversionary
program.
CHAIR MCGUIRE mentioned the potential compromise to keep the
names on CourtView until the case was closed.
SENATOR WIELECHOWSKI said it's important to hold kids
accountable when they make mistakes, but it's a bad policy call
to keep their names on CourtView for the rest of their lives.
CHAIR MCGUIRE indicated the committee would review the
compromise language looking for some middle ground.
She asked to hear from DHSS about the fiscal impacts.
2:57:21 PM
JAY BUTLER, Chief Medical Officer, Department of Health and
Social Services (DHSS), offered to answer any remaining medical
questions related to marijuana.
SENATOR COGHILL asked for help defining an ounce of marijuana
that recognizes the range in value from a concentrate to leaf
material.
DR. BUTTLER said he'd be happy to have further discussions.
2:59:57 PM
DIANE CASTO, Project Manager, Division of Behavioral Health,
Department of Health and Social Services, and Chair, Title 4
rewrite Underage Drinking Subcommittee, discussed the report
from the ABC Board that outlines all the recommended changes to
the minor consuming alcohol statutes. The subcommittee struggled
with the same questions for alcohol as this committee is for
marijuana. They didn't want to limit the future of a minor who
had made a mistake but recognized that there are opportune times
for making an impression on youth and getting their attention
for the behavior they've engaged in. She cited national
statistics to clarify the importance of keeping both alcohol and
marijuana out of the hands of young people and having early
intervention procedures if they do start. Research shows that
youths that begin using marijuana before age 25 have a
significantly increased probability of dependence and 97 percent
of new users are age 24 or younger.
MS. CASTO explained that the subcommittee worked to strike a
balance and make minor consuming alcohol a true violation - (not
a violation stepped up to a misdemeanor due to requirements as
in current statute) - that provided swift action, appropriate
consequences, and consistent follow through. A youth picked up
for underage drinking would get a $500 ticket and a required
court appearance accompanied by a parent. The idea was to
educate both the parent and child and get help for the youth if
needed. The carrot to encourage participation was the
opportunity to reduce the $500 fine to $50 by undergoing
screening through an ASAP program or going to an alcohol/drug
information school or treatment if needed.
MS. CASTO said the CourtView issue was the one sticking point.
Discussions are ongoing about having the case temporarily on
CourtView and then disappear once it's closed, but her
understanding is that there has been no final decision.
CHAIR MCGUIRE asked for clarification on the compromise for
CourtView.
MS. CASTO offered her understanding that when a ticket is
written, the name would automatically go on CourtView and stay
there until the minor either pays the full fine or meets the
requirements for a reduced fine. After that the name would be
removed. Once there is a good compromise on the issue, she said
the best way forward is to have consistency between the minor
consuming laws for marijuana and alcohol.
CHAIR MCGUIRE asked for the draft language.
MS. CASTO agreed to provide it.
SENATOR COSTELLO asked for a list of the people who sat on the
committee.
MS. CASTO agreed to provide it.
She told the committee that the Division of Behavioral Health
has been debating the matter of a fiscal note because there
really isn't a fiscal impact in the bill itself. For DBH the
fiscal note will be based on consumption patterns and
consequences related to public safety and public health issues.
They're already looking at ways to do a better job of primary
prevention to give everyone better information. Those things
will have some cost, but they're not directly tied to the bill.
There will also be treatment issues. Current data shows there
are about 590 people in treatment in Alaska for marijuana as
their primary drug. The numbers are much higher for those who
have marijuana as just one of their issues. Other data shows
that about 9,000 Alaskans meet the criteria for marijuana
dependency and addiction. The current effort is to compile the
available data in a usable format in order to make an analysis
and look at trends. Clearly there will be increased costs.
CHAIR MCGUIRE encouraged Ms. Casto to have a conversation with
the Finance Committee about the potential for additional costs.
| Document Name | Date/Time | Subjects |
|---|---|---|
| CS SB 30 Version S.pdf |
SJUD 2/18/2015 1:30:00 PM |
SB 30 |