04/19/2006 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HCR4 | |
| HB502 | |
| SB20 | |
| SB261 | |
| HB240 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | HCR 4 | TELECONFERENCED | |
| + | SB 273 | TELECONFERENCED | |
| *+ | HB 502 | TELECONFERENCED | |
| + | HB 240 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | SB 20 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
April 19, 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
HOUSE CONCURRENT RESOLUTION NO. 4
Encouraging the establishment of a methamphetamine watch
program.
- MOVED CSHCR 4(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 502
"An Act amending the Alaska Stranded Gas Development Act to
eliminate the opportunity for judicial review of the findings
and determination of the commissioner of revenue on which are
based legislative review for a proposed contract for payments in
lieu of taxes and for the other purposes described in that Act;
and providing for an effective date."
- HEARD AND HELD
CS FOR SENATE BILL NO. 20(JUD)
"An Act relating to offenses against unborn children."
- MOVED HCS CSSB 20(JUD) OUT OF COMMITTEE
CS FOR SENATE BILL NO. 261(FIN)
"An Act relating to the designation of traffic safety corridors;
relating to the bail or fine for an offense committed in a
traffic safety corridor and to separately accounting for such
fines; and providing for an effective date."
- HEARD BUT NOT SCHEDULED
HOUSE BILL NO. 240
"An Act relating to brewery and brew pub licensing."
- MOVED CSHB 240(JUD) OUT OF COMMITTEE
SENATE BILL NO. 273
"An Act relating to a motor vehicle dealer's selling or offering
to sell motor vehicles as new or current models or as new or
current model motor vehicles having manufacturer's warranties."
- BILL HEARING POSTPONED TO 4/21/06
PREVIOUS COMMITTEE ACTION
BILL: HCR 4
SHORT TITLE: METH WATCH PROGRAM
SPONSOR(S): REPRESENTATIVE(S) RAMRAS
03/04/05 (H) READ THE FIRST TIME - REFERRALS
03/04/05 (H) STA, JUD
03/15/05 (H) STA AT 8:00 AM CAPITOL 106
03/15/05 (H) Moved Out of Committee
03/15/05 (H) MINUTE(STA)
03/16/05 (H) STA RPT 7DP
03/16/05 (H) DP: GARDNER, LYNN, GATTO, GRUENBERG,
RAMRAS, ELKINS, SEATON
04/19/06 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 502
SHORT TITLE: COURT REVIEW OF STRANDED GAS DECISION
SPONSOR(S): JUDICIARY
04/18/06 (H) READ THE FIRST TIME - REFERRALS
04/18/06 (H) JUD
04/19/06 (H) JUD AT 1:00 PM CAPITOL 120
BILL: SB 20
SHORT TITLE: OFFENSES AGAINST UNBORN CHILDREN
SPONSOR(S): SENATOR(S) DYSON
01/11/05 (S) PREFILE RELEASED 12/30/04
01/11/05 (S) READ THE FIRST TIME - REFERRALS
01/11/05 (S) STA, JUD
03/01/05 (S) STA AT 3:30 PM BELTZ 211
03/01/05 (S) Heard & Held
03/01/05 (S) MINUTE(STA)
03/15/05 (S) STA AT 3:30 PM BELTZ 211
03/15/05 (S) Moved CSSB 20(STA) Out of Committee
03/15/05 (S) MINUTE(STA)
03/16/05 (S) STA RPT CS 4AM 1NR SAME TITLE
03/16/05 (S) AM: THERRIAULT, ELTON, WAGONER, HUGGINS
03/16/05 (S) NR: DAVIS
03/16/05 (S) FIN REFERRAL ADDED AFTER JUD
03/31/05 (S) JUD AT 8:30 AM BUTROVICH 205
03/31/05 (S) Scheduled But Not Heard
04/04/05 (S) JUD AT 8:30 AM BUTROVICH 205
04/04/05 (S) Heard & Held
04/04/05 (S) MINUTE(JUD)
04/12/05 (H) JUD AT 8:00 AM CAPITOL 120
04/12/05 (S) Heard & Held
04/12/05 (S) MINUTE(JUD)
04/19/05 (S) JUD AT 8:30 AM BUTROVICH 205
04/19/05 (S) Moved CSSB 20(JUD) Out of Committee
04/19/05 (S) MINUTE(JUD)
04/19/05 (S) JUD RPT CS FORTHCOMING 3DP 1NR
04/19/05 (S) DP: SEEKINS, THERRIAULT, HUGGINS
04/19/05 (S) NR: GUESS
04/20/05 (S) RETURNED TO JUD COMMITTEE
04/21/05 (S) JUD CS RECEIVED SAME TITLE
04/26/05 (S) JUD AT 8:30 AM BUTROVICH 205
04/26/05 (S) Moved CSSB 20(2nd JUD) Out of Committee
04/26/05 (S) MINUTE(JUD)
04/27/05 (S) JUD RPT CS(2D JUD) 3DP 2AM SAME TITLE
04/27/05 (S) DP: SEEKINS, THERRIAULT, HUGGINS
04/27/05 (S) AM: FRENCH, GUESS
04/27/05 (S) FIN REFERRAL ADDED AFTER JUD
04/28/05 (S) FIN AT 9:00 AM SENATE FINANCE 532
04/28/05 (S) Moved CSSB 20(JUD) Out of Committee
04/28/05 (S) MINUTE(FIN)
04/29/05 (S) FIN RPT CS(JUD) 2DP 3NR
04/29/05 (S) DP: GREEN, DYSON
04/29/05 (S) NR: WILKEN, HOFFMAN, OLSON
05/01/05 (S) JUD CS ADOPTED Y11 N5 E3 A1
05/03/05 (S) TRANSMITTED TO (H)
05/03/05 (S) VERSION: CSSB 20(JUD)
05/04/05 (H) READ THE FIRST TIME - REFERRALS
05/04/05 (H) JUD, FIN
05/05/05 (H) JUD AT 1:00 PM CAPITOL 120
05/05/05 (H) Scheduled But Not Heard
05/07/05 (H) JUD AT 3:30 PM CAPITOL 120
05/07/05 (H) Meeting Postponed to 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>
02/15/06 (H) JUD AT 1:00 PM CAPITOL 120
02/15/06 (H) Heard & Held
02/15/06 (H) MINUTE(JUD)
02/22/06 (H) JUD AT 2:30 PM CAPITOL 120
02/22/06 (H) <Bill Hearing Postponed to 2/23/06>
02/23/06 (H) JUD AT 10:00 AM CAPITOL 120
02/23/06 (H) Scheduled But Not Heard
03/15/06 (H) JUD AT 1:00 PM CAPITOL 120
03/15/06 (H) -- Meeting Canceled --
03/20/06 (H) JUD AT 1:00 PM CAPITOL 120
03/20/06 (H) -- Meeting Canceled --
03/22/06 (H) JUD AT 1:00 PM CAPITOL 120
03/22/06 (H) Heard & Held
03/22/06 (H) MINUTE(JUD)
03/24/06 (H) JUD AT 1:00 PM CAPITOL 120
03/24/06 (H) Tabled
03/24/06 (H) MINUTE(JUD)
04/19/06 (H) JUD AT 1:00 PM CAPITOL 120
BILL: SB 261
SHORT TITLE: REGULATION OF HWYS; TRAFFIC OFFENSES
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
02/01/06 (S) READ THE FIRST TIME - REFERRALS
02/01/06 (S) TRA, FIN
02/09/06 (S) TRA AT 1:30 PM BUTROVICH 205
02/09/06 (S) Heard & Held
02/09/06 (S) MINUTE(TRA)
03/09/06 (S) TRA AT 1:30 PM BUTROVICH 205
03/09/06 (S) Moved CSSB 261(TRA) Out of Committee
03/09/06 (S) MINUTE(TRA)
03/15/06 (S) TRA RPT CS 3DP SAME TITLE
03/15/06 (S) DP: HUGGINS, FRENCH, KOOKESH
03/21/06 (S) FIN AT 9:00 AM SENATE FINANCE 532
03/21/06 (S) Moved CSSB 261(FIN) Out of Committee
03/21/06 (S) MINUTE(FIN)
03/22/06 (S) FIN RPT CS 5DP 1NR SAME TITLE
03/22/06 (S) DP: WILKEN, GREEN, BUNDE, DYSON,
STEDMAN
03/22/06 (S) NR: OLSON
04/05/06 (S) TRANSMITTED TO (H)
04/05/06 (S) VERSION: CSSB 261(FIN)
04/06/06 (H) READ THE FIRST TIME - REFERRALS
04/06/06 (H) JUD, FIN
04/12/06 (H) JUD AT 1:00 PM CAPITOL 120
04/12/06 (H) Moved HCS CSSB 261(JUD) Out of
Committee
04/12/06 (H) MINUTE(JUD)
04/18/06 (H) JUD RPT HCS(JUD) NT 5DP 2NR
04/18/06 (H) DP: ANDERSON, WILSON, KOTT, GRUENBERG,
MCGUIRE;
04/18/06 (H) NR: GARA, COGHILL
BILL: HB 240
SHORT TITLE: BREWERY & BREWPUB LICENSES
SPONSOR(S): JUDICIARY
03/30/05 (H) READ THE FIRST TIME - REFERRALS
03/30/05 (H) L&C, JUD
04/06/05 (H) L&C AT 3:15 PM CAPITOL 17
04/06/05 (H) <Bill Hearing Postponed>
03/22/06 (H) L&C AT 3:15 PM CAPITOL 17
03/22/06 (H) <Bill Hearing Postponed>
03/29/06 (H) L&C AT 3:15 PM CAPITOL 17
03/29/06 (H) Heard & Held
03/29/06 (H) MINUTE(L&C)
04/12/06 (H) L&C AT 3:15 PM CAPITOL 17
04/12/06 (H) Moved CSHB 240(L&C) Out of Committee
04/12/06 (H) MINUTE(L&C)
04/18/06 (H) L&C RPT CS(L&C) 5DP 1AM
04/18/06 (H) DP: CRAWFORD, LYNN, KOTT, GUTTENBERG,
ANDERSON;
04/18/06 (H) AM: LEDOUX
04/19/06 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
REPRESENTATIVE JAY RAMRAS
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of HCR 4.
JANE PIERSON, Staff
to Representative Jay Ramras
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HCR 4 on behalf of the sponsor,
Representative Ramras.
STEVEN B. PORTER, Deputy Commissioner
Office of the Commissioner
Department of Revenue (DOR)
Juneau, Alaska
POSITION STATEMENT: Relayed that the administration supports
HB 502, and responded to questions.
LARRY OSTROVSKY, Chief Assistant Attorney General - Statewide
Section Supervisor
Oil, Gas & Mining Section
Civil Division (Anchorage)
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: Presented HB 502 on behalf of the sponsor,
the House Judiciary Standing Committee, and responded to
questions.
JIM SYKES
(Address not provided)
POSITION STATEMENT: Testified in opposition to HB 502.
MARK MYERS
(Address not provided)
POSITION STATEMENT: Provided comments and responded to
questions.
CRAIG JOHNSON, Staff
to Representative Lesil McGuire
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 240 on behalf of the sponsor,
the House Judiciary Standing Committee.
CHUCK EDWARDS, Chair
Government Affairs
Anchorage Cabaret, Hotel, Restaurant, & Retailers Association
(CHARR)
Anchorage, Alaska
POSITION STATEMENT: During the hearing on HB 240, answered
questions.
ACTION NARRATIVE
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 1:12:58 PM. Representatives
McGuire, Anderson, Wilson, Coghill, Gruenberg, and Gara were
present at the call to order. Representative Kott arrived as
the meeting was in progress.
HCR 4 - METH WATCH PROGRAM
1:13:04 PM
CHAIR McGUIRE announced that the first order of business would
be HOUSE CONCURRENT RESOLUTION NO. 4, Encouraging the
establishment of a methamphetamine watch program. [In committee
packets was a proposed committee substitute (CS) for HCR 4,
Version 24-LS0693\G, Kurtz/Luckhaupt, 4/13/06.]
1:13:13 PM
REPRESENTATIVE JAY RAMRAS, Alaska State Legislature, sponsor,
opined that a methamphetamine watch program, which is encouraged
by HCR 4, is an excellent step because preventative maintenance
is better than criminal proceedings.
1:13:55 PM
JANE PIERSON, Staff to Representative Jay Ramras, Alaska State
Legislature, sponsor, on behalf of Representative Ramras,
paraphrased from the following written sponsor statement
[original punctuation provided]:
Throughout the past decade there have been a number of
public awareness programs, which have educated
communities about the dangers of alcohol and drugs.
Meth Watch is a voluntary program started in Kansas as
a public/private partnership in 2001. Meth Watch
educates communities about the perils of
methamphetamine. Today, twelve states have
implemented a Meth Watch program. Although a
relatively new campaign, since its implementation,
states have reported reductions in the number of
methamphetamine laboratories, and have seen a
unification of grant programs that fund the education
of communities; particularly parents, teachers, and
others that work with youth.
The Meth Watch program engages retailers, law
enforcement officials, schools, state and local
agencies, and other key partners in reducing the
diversion of precursor products for the manufacturing
of methamphetamine, and increasing awareness about
methamphetamine's dangers. The program is also
instrumental in educating students and teachers in our
schools and communities.
House Concurrent Resolution No. 4 urges that the Meth
Watch program be implemented in the State of Alaska,
by applying for available grants, and encouraging and
assisting communities to apply for funding from both
government and private sources.
MS. PIERSON characterized the "meth watch" program as a win-win
program. She noted that although there has been across-the-
state interest in implementing the program, someone must still
be willing to champion it. Originally, the Department of Health
and Social Services was asked to be the point person, but it
seems that it would be best to have a private organization take
the lead.
1:15:49 PM
REPRESENTATIVE GRUENBERG moved to adopt the proposed committee
substitute (CS) for HCR 4, Version 24-LS0693\G, Kurtz/Luckhaupt,
4/13/06, as the work draft. There being no objection, Version G
was before the committee.
CHAIR McGUIRE, upon determining that no one else wished to
testify, closed public testimony on HCR 4.
1:16:06 PM
REPRESENTATIVE GRUENBERG moved to report the proposed CS for
HCR 4, Version 24-LS0693\G, Kurtz/Luckhaupt, 4/13/06, out of
committee with individual recommendations and the accompanying
fiscal notes. There being no objection, CSHCR 4(JUD) was
reported from the House Judiciary Standing Committee.
The committee took an at-ease from 1:16 p.m. to 1:17 p.m.
HB 502 - COURT REVIEW OF STRANDED GAS DECISION
1:17:12 PM
CHAIR McGUIRE announced that the next order of business would be
HOUSE BILL NO. 502, "An Act amending the Alaska Stranded Gas
Development Act to eliminate the opportunity for judicial review
of the findings and determination of the commissioner of revenue
on which are based legislative review for a proposed contract
for payments in lieu of taxes and for the other purposes
described in that Act; and providing for an effective date."
1:17:56 PM
STEVEN B. PORTER, Deputy Commissioner, Office of the
Commissioner, Department of Revenue (DOR), relayed that the
administration supports HB 502, and that the DOR has submitted a
zero fiscal note because it feels that the bill simply provides
clarification regarding the DOR's responsibilities as they
relate to the Alaska Stranded Gas Development Act.
1:18:36 PM
LARRY OSTROVSKY, Chief Assistant Attorney General - Statewide
Section Supervisor, Oil, Gas & Mining Section, Civil Division
(Anchorage), Department of Law (DOL), indicated that he would be
presenting the bill on behalf of the sponsor, the House
Judiciary Standing Committee.
REPRESENTATIVE GARA opined that the fiscal note should at best
be indeterminate because, by losing the right to appeal, the
public may lose the right to find that a part of the contract is
costing the state billions of dollars [in revenue]. To call it
a zero fiscal note is quite inaccurate, he added, because
[adoption of HB 502] might end up costing the state a lot.
MR. OSTROVSKY offered his understanding that during the
legislative process in 1998, the legislation that became the
Alaska Stranded Gas Development Act - House Bill 393 - was
amended such that the legislature was provided with the final
authority to determine whether a contract can be executed.
Originally House Bill 393 provided the commissioner of the
Department of Revenue with the authority to execute a contract
if he/she determined that it was in the "long term fiscal
interests of the state," and that that decision would be a final
agency decision, which are normally subject to administrative
appeal. Amended versions of House Bill 393 provided the
legislature with more authority regarding a contract; that
language says:
The governor may transmit a contract developed under
this chapter to the legislature together with a
request for authorization to execute the contract. A
contract developed under this chapter is not binding
upon or enforceable against the state or other parties
to the contract unless the governor is authorized to
execute the contract by law. The state and the other
parties to the contract may execute the contract
within 60 days after the effective date of the law
authorizing the contract.
MR. OSTROVSKY said that in the administration's view, this
language allows a premature challenge because the contract
cannot be executed until the legislature authorizes it. He
characterized this language as unusual because by and large in
all other statutes, once certain findings have been made,
commissioners are granted the authority to take an action.
MR. OSTROVSKY ventured that everyone would agree that it's
appropriate that there be judicial review if there is a finding
that allows a commissioner to take an action. In the original
version of House Bill 393, it made sense that the commissioner's
decision would give rise to the right to appeal, because there'd
be no step in between the commissioner's decision and the
execution of a contract. But in the amended version of House
Bill 393, and under current law, the fiscal interest finding
itself doesn't enable either the commissioner or the governor to
take an action on the contract; instead, the legislature has to
authorize the contract, and therefore people have recourse via
the legislature if they feel that the contract isn't any good,
or that there isn't sufficient factual basis, or that the
commissioner's analysis is faulty.
MR. OSTROVSKY said that although [the language of current law]
does remove an intermediate judicial review, it replaces it with
an intermediate legislative review.
1:24:13 PM
REPRESENTATIVE GARA pointed out, though, that although the
phrase, "intermediate judicial review" implies that there is
judicial review later on, HB 502 [appears] to get rid of all
judicial review.
MR. OSTROVSKY offered his belief that "there is judicial review
under the [Alaska Stranded Gas Development Act]; within 120 days
of the contract, one can challenge its constitutionality.
Furthermore one can always challenge the constitutionality of a
statute.
REPRESENTATIVE GARA offered his understanding, however, that
currently, judicial review is available to determine whether the
contract is in the state's best interest [and whether or not we
gave away the farm," and yet that provision will be removed and
there will be no other judicial review if HB 502 passes.
MR. OSTROVSKY posited that there will be a different kind of
judicial review. [Under HB 502], when the legislature goes
through its authorization process, there will be additional
facts developed, and so the court won't necessarily look at only
the commissioner's recommendations in isolation but may instead
also look at the entire record, depending on the nature of the
challenge.
1:27:01 PM
REPRESENTATIVE GARA asked whether under the bill, on the
question of whether a contract is in the state's best interest
and gets "us" the best deal possible, someone will still be able
to go to court and challenge the best interest finding.
MR. OSTROVSKY said, "I believe not." He added:
I think the purpose of the [bill] ..., and [under] the
language of the [bill], it will be very difficult for
somebody to come in, after a commissioner's
determination, and challenge that determination [by
saying], "Well, they didn't have a reasonable basis
for it; you can't advance it to the legislature,"
because this [bill] says that decision is not subject
to review, stay, or injunction by the court.
REPRESENTATIVE GRUENBERG, after reading portions of existing
AS 43.82.430, offered his understanding that the language
currently in AS 43.82.430(b) won't be affected by the language
in proposed AS 43.82.430(c) of HB 502. Furthermore, he noted,
existing AS 43.82.440 states:
Sec. 43.82.440. Judicial review. A person may not
bring an action challenging the constitutionality of a
law authorizing a contract enacted under AS 43.82.435
or the enforceability of a contract executed under a
law authorizing a contract enacted under AS 43.82.435
unless the action is commenced within 120 days after
the date that the contract was executed by the state
and the other parties to the contract.
REPRESENTATIVE GRUENBERG pointed out that that statute of
limitation and ability to seek judicial review of the contract
itself - after ratification by the legislature - won't be
affected by HB 502 either.
MR. OSTROVSKY acknowledged that perhaps [AS 43.82.430] could be
interpreted to mean that the commissioner's determination of the
long-term fiscal interests of the state is not subject to
judicial review but the final finding and determination that the
contract is consistent with the statute is.
REPRESENTATIVE GRUENBERG predicted that such language will
engender litigation. He suggested that they should make sure
that the language is written correctly as a whole; in other
words, they should draft the language so that there is no
question of the intent - once that intent is decided upon.
1:33:50 PM
MR. OSTROVSKY suggested changing proposed AS 43.82.430(c) such
that it applies to both (a) and (b) of AS 43.82.430.
REPRESENTATIVE GRUENBERG suggested adding to AS 43.82.430(c) a
reference to AS 43.82.440 as well; "it seems to me that you
might want to put everything involving judicial review in one
statute, and make sure that there is no way they can't be read
congruently."
MR. OSTROVSKY said that as a general rule, courts prefer to take
up final decisions. Otherwise, for example, in a situation
involving the Alaska Stranded Gas Development Act, if someone
challenges the fiscal interest finding, it might not yet be
known how the legislature will ultimately deal with the
contract; conversely, if the legislature authorizes a contract,
it will be after considerable testimony and deliberation, and
thus the facts and circumstances surrounding a contract will be
more developed than before the commissioner makes his/her
decision.
MR. OSTROVSKY suggested that if someone were to challenge a
commissioner's decision on the basis that the economic analysis
that formed the commissioner's decision was faulty, it could
well be that ultimately the legislature would come to that same
conclusion. Under the change proposed by HB 502, the court, in
such a situation, will look at the whole record; whereas if the
court were to look only at the commissioner's determination, it
would not have the benefit of being able to look at any
additional work that the legislature could chose to undertake.
House Bill 502 merely takes away the step that allows for
judicial review in the middle of the process, he remarked, and
puts in a step, that is not normally there, allowing for
legislative review. The [administration] would prefer that any
judicial review take place after the process is completed rather
than in the middle of it.
REPRESENTATIVE GARA offered his understanding that under HB 502,
no one will be able challenge the best interest finding.
MR. OSTROVSKY concurred. Without the adoption of HB 502, the
court could find itself inserted into the relationship between
the executive branch and the legislature, whereas normally one
can't challenge either the administration or the legislature for
proposing something. Under current law, when the legislature
reserved the power to authorize a contract under the Alaska
Stranded Gas Development Act, this normal relationship was
changed; essentially, the administration is simply submitting a
recommendation to the legislature not much different than
submitting proposed legislation, and so without the adoption of
HB 502, a person would be allowed to come in and stop the
process.
CHAIR McGUIRE said she believes that it is in the best interest
of the people of Alaska to have the issue before [the
legislature] to decide. In the end, the legislature may not
approve a particular contract; it may decide, for various
reasons, that it wants to challenge different parts [of a
contract]. But if the process includes the possibility that an
injunction can be filed, then it can become difficult for the
legislature to decide when and how to deal with the contract.
She opined that there is role for the judicial branch, but that
it should be at a different point in time - at the end.
Furthermore, the legislative should also play a role, she
remarked, surmising that the legislature, back in 1998, felt the
same way and so interjected itself into the process via the
changes it made to House Bill 393. She offered her hope that
legislators will listen to the electorate and then take actions
that reflect its wishes.
1:42:10 PM
REPRESENTATIVE GRUENBERG mentioned that perhaps Section 1 of the
bill is unnecessary. With regard to Section 2 of HB 502, he
suggested that perhaps they could change it such that it simply
says that except for a constitutional challenge, "this" process
isn't ripe for review "until it's over." In response to
comments and a question, he remarked on the concept of judicial
economy; because things can change, courts don't normally get
involved until the process is complete - this is a very well
established legal principle as well as sound public policy. If
faced with a challenge before the process is complete, one ought
to be able to ask the court for a stay on the basis that the
situation is not ripe for review.
MR. OSTROVSKY concurred.
CHAIR McGUIRE pointed out, though, that in including itself as a
real player in the process, the legislature neglected to state
how it felt about judicial review of a final finding. She
posited that changing the current language as HB 502 proposes to
do is a way for the legislature to say, "These are
recommendations; these are not a final finding; and we want the
legislative process to take its normal course, to not have the
court intervene."
1:46:21 PM
REPRESENTATIVE GRUENBERG suggested simply changing the bill to
say that "the process" should not be considered a final decision
and ripe for review until after the legislature has approved it.
MR. OSTROVSKY said that captures the intention and is
consistent.
CHAIR McGUIRE relayed that they would hold the bill over so as
to provide members with more time to consider some of the issues
raised.
REPRESENTATIVE GRUENBERG suggested that interested parties meet
with him before the bill is heard next for the purpose of
developing alternative language.
AN UNIDENTIFIED SPEAKER indicated that the administration's
representatives would make themselves available.
REPRESENTATIVE GARA said his question is whether, under the
bill, one would be able to challenge whether a contract is in
best interests of the state even at the end of the process.
Having judicial review at the end of the process would be fine,
he remarked, but he wants to ensure that people aren't precluded
altogether from challenges regarding the best interest findings.
REPRESENTATIVE COGHILL questioned whether they really want a
challenge regarding the best interest findings to occur after
both the administration and the legislature have acted - perhaps
such a challenge should be precluded altogether.
MR. OSTROVSKY, in response to a question, said:
The legislature has powers to determine what's in the
best interest of the state, [though] it can't perform
unconstitutional acts. And a commissioner is
sometimes empowered by [the] legislature ... to make a
best interest finding, and a court will review it
under [the] standards of review that it's articulated.
It's different, however, [if] ... the legislature
determines something's in the best interest of the
state before it takes an action. ... In a sense, it's
really implicit in all legislative actions -
everything the legislature does is because, as a
collective body, it believes it's in the best interest
of the state. And that's normally not a basis for
challenge of legislative action.
So I think Representative Gara is correct that if the
commissioner makes a determination [and] then the
legislature looks at [it] ... - and does whatever it's
going to do with the contract ... - and makes a
determination to pass that contract, that there's
probably not a viable claim that it's not in the best
interest of the state, because the legislature is the
ultimate determiner of what's in the best interests of
the state. However, somebody might claim, for
example, that notwithstanding that legislature, you
can't have a tax contract or the contract violates
another constitutional provision.
So, in my opinion, there wouldn't be a basis for a
challenge [of] either the commissioner's finding or
... the best interest [finding] because that's what
the legislature will determine, and the court would
look at the whole record. And the courts generally
... won't second-guess that because that is the
essential legislative function. ...
CHAIR McGUIRE suggested that in addition to a "process problem,"
there is also the fundamental policy question of what the
appropriate role of the legislature is and what did it intend
when it amended the Alaska Stranded Gas Development Act to
include legislative authorization. She offered her belief that
the legislature intended to insert itself in the process so as
to be in the position of making the best interest finding,
because, as representatives of the people of the state,
legislators were better suited than the courts for that task.
She characterized HB 502 as providing clean up language in the
sense that no one understood at the time that the judicial
branch was being left in along side of the legislature -
seemingly to duplicate the process that the legislature [and
administration were] supposed to be doing; HB 502 is merely
further effectuating the legislature's intent in included the
provision regarding legislative authorization. She stated that
she would not support a proposal that authorizes the court to
duplicate all the work done by the legislature, or one that
would allow a person to challenge the legislature's decision-
making; such a proposal would raise constitutional separation of
powers issues for her.
1:56:26 PM
REPRESENTATIVE GARA opined that the real issue pertains to the
legislature and public's access to information. Currently, if
someone challenges the best interest findings, he/she would be
entitled to all the documents relevant to whether a contract is
in the best interest of the state. He offered an example of
documentation that might prove that the state didn't need to
offer a particular concession to the oil companies. If the
legislature gets rid of the right to challenge the contract on
the basis of best interest, then what right will anyone - public
member or legislator - have to the necessary documentation? He
noted that some limitations regarding access to documentation
already exist under AS 43.82.310(e), and indicated that these
limitations illustrate the legislature's importance in its
current roll under the Alaska Stranded Gas Development Act.
Currently under HB 502, he opined, the public will lose the
right to access important documents, documents that will prove
whether a contract is fair. He said that he wants this issue
addressed such that a person will have the right to look at
documents regardless of whether the administration approves such
disclosure.
MR. PORTER said, "It is our intent to provide a full and
complete record to assist both the legislature and the public to
do the same evaluation that we did." In response to a question,
he offered his belief that HB 502 already stipulates this.
REPRESENTATIVE GARA, in response to comments, offered his
understanding that what Mr. Porter said was that the
administration is going to provide documents that it believes
are relevant. Representative Gara indicated that his concern
pertains to what happens if a person disagrees with the
administration with regard to what documents really are
relevant. He again offered his understanding that AS
43.82.310(e) says that it is the administration that gets to
determine what documentation is relevant.
REPRESENTATIVE COGHILL expressed disagreement with that
interpretation.
REPRESENTATIVE GARA argued that it is not correct to think that
AS 43.82.310(e) would allow a legislator to get information
directly. He mentioned that he would support a change that
would allow a legislator to request information from the
administration.
REPRESENTATIVE COGHILL asked for clarification regarding who is
considered to be the applicant under AS 43.82.310.
MR. OSTROVSKY offered his belief that the first sentence of AS
43.82.310(e) ought to contain a comma between the words, "by"
and "request" so that it is clear that a legislator may request
information directly. Without that comma, the language does
suggest that a legislator would need to go through the
administration in order to request information.
2:06:17 PM
REPRESENTATIVE GRUENBERG concurred, but remarked that if that
comma were to be inserted it would constitute a very substantive
amendment.
REPRESENTATIVE GARA expressed concern that even if that problem
is fixed and it is clear that a legislator can request
documents, they must be provided in a timely fashion - as in,
"immediately" - and even then it will be hard to know exactly
which documents to request.
CHAIR McGUIRE surmised that a legislator could craft a request
that would be similar to a discovery order wherein it would
apply to all documentation related to a particular subject, and
then, if those documents aren't forthcoming, that in and of
itself will create serious questions about the contract. She
reiterated that HB 502 would be set aside in order to address
members' concerns, and, in response to a comment, indicated that
she would not be assigning the bill to a formal subcommittee.
REPRESENTATIVE GRUENBERG offered his understanding that a letter
written by Jim Clark addresses AS 43.82.310(f), and that
Representative Gara is suggesting that a lawsuit might be filed
as a means of discovery to get documents. Representative
Gruenberg then made remarks regarding the issue of privilege -
specifically, executive privilege and deliberative privilege.
CHAIR McGUIRE mentioned that she would be keeping public
testimony open on HB 502.
REPRESENTATIVE GARA said that at some point he would like the
administration to describe what documents are available and how
they can be obtained under current law as well as under the
bill.
MR. PORTER agreed to provide that information.
2:13:29 PM
JIM SYKES said he opposes HB 502. He elaborated:
There is a process that is established - I've been
through it a number of times - where, if you don't
like a decision [the Department of Natural Resources
(DNR) comes out with, you can ask for reconsideration,
you can appeal it, and you can appeal it to court. I
think where you're going with this, in terms of trying
to write the legislature [in] as the authority on this
because you've had all these deliberations, I don't
think that's likely to stand up under a separation of
powers test. I don't know how many laws, but there
have been perhaps hundreds of laws passed by the
legislature that have been successfully challenged in
the court system, and [just] because you have
deliberated doesn't necessarily mean that you found
all the wisdom that was there to be found before the
law was passed and signed into law. And so I think
it's very important to recognize the role of the
judiciary, and it probably invites a separation of
powers kind of test, then, in itself. So you may wish
to consider that.
In terms of the rest of the bill, even if a court were
to consider what the legislature has done, the
legislature has already been provided evidence, by
it's own contractors, that plainly states that the
[Alaska Stranded Gas Development Act] probably doesn't
apply. And so you've already got [that] legal
question preceding all of what is taking place up
until now. And so that's certainly a fair question
for any court to consider as part of the record. ...
As has been expressed in the past, I don't think that
there [are] a lot of people out there just intending
to scuttle the contract - I think the public gives the
legislature a great deal of deference if they've done
something, and gives them the benefit of the doubt.
And so if you come up with something that's a decent
contract, if you've thoroughly investigated the
options and the alternatives and shown the public that
you've really prepared what's available and made of
that deal, I don't think there's going to be problem
with it.
But this has the appearance to me of, is the
legislature trying to create a greater role for itself
in government than it deserves, and I don't think
that's going to help the process of getting a gas
contract. And so - as everybody knows, you have to
choose your battles - I'd let this one go. ... I'll be
happy to answer any questions if there are any.
2:16:17 PM
MARK MYERS said he would like to second some of Representative
Gara's concerns regarding the ability of the legislature to get
information. A third dynamic to also consider is ensuring that
the public gets the information. Part of the finding process
that has been so critical, particularly with regard to royalty
oil sales, is that the public comments are meaningfully taken
and received, and that the finding adequately addresses public
concerns. Therefore, if the public doesn't have access to the
data or if the public's concerns are not addressed in the
finding and there is no legal recourse available to the public,
it will have its ability to influence the process greatly
diminished.
MR. MYERS said he understands the legislature's desire to be the
final authority on the finding, but when one considers the
magnitude of the finding and the issues, the legislature simply
doesn't have the expertise, necessarily, to look at the finding
in the time allotted. That's why public input becomes
critically important, as does the administration's
responsibility to answer questions in an unbiased manner and
prove that the finding is in the state's interest. He mentioned
that a couple of key issues and concerns pertain to whether it
can be demonstrated that the gas is actually stranded. If the
administration, in its finding, chooses not to go into a
quantitative or reasonable analysis of that issue, and the
legislature doesn't [indisc] it, the public will never know
whether that standard was met.
MR. MYERS pointed out that another major issue revolves around
the question of whether the contract was legally negotiated,
legally in the sense of occurring within the constraints placed
on the administration by the Alaska Stranded Gas Development Act
at that particular point in time. Again, this is information
that the [public] needs to have and needs to be able to comment
on, and those comments need to be meaningfully addressed.
Furthermore, historically, if the state has made procedural
errors in its process, the public "has a bite of that apple."
And yet that [right] will be taken away via the adoption of HB
502.
MR. MYERS acknowledged that the legislature could make a de
facto finding that every contract it approves is in fact in the
state's interest, but in such instances, "the whole question of
having a finding comes into question." He added:
Our findings, historically, have been the public's
vehicle, to comment on our major policy decisions;
unless [there is] some sort of ability for the public,
if they're unsatisfied, to get some review beyond the
constitutional issues, I think we undermine a fair
amount of public trust - we also don't place the
administration in the position of having to write the
very best finding.
MR. MYERS opined that some of the issues that should be
thoroughly addressed and reviewed in the finding are things like
whether the gas is in fact stranded; whether, compared to other
available alternatives, [the contract] is in the interest of the
state; and whether there is a quantitative comparison of
alternatives. If those issues are not addressed in the finding,
what is the public's recourse to obtain that information? Or
should the public rely totally on the legislature's belief that
those areas of concern have been satisfied?
2:20:15 PM
CHAIR McGUIRE asked Mr. Myers to comment on how he envisions the
situation playing out if HB 502 is not adopted.
MR. MYERS said that one must first consider what the purpose of
the finding is. He offered his belief that if the purpose of
the finding is to provide a vehicle and justification for the
contract, and the public has a role in that, then there simply
must be a way for the public to challenge the decision-making
process regarding major issues: major factual issues, omissions
and errors, major procedural issues, and constitutional issues.
If there is no way for the public to do that, the public will
never have any faith or trust in the process. Should such
challenges occur later in the process? Possibly. Public review
during the best interest finding process has not only improved
the administration's findings but has always been a critical
element of public acceptance. If issues raised by the public
during the process are not addressed by the administration, then
the courts play a role.
MR. MYERS said that if the legislature chooses to step in and
play the role [currently handled by the courts], then the
legislature will have to really micromanage the finding and
research whether the issues raised by the public really have
been adequately addressed by the administration. [Under HB 502]
the judicial system can't be used to ensure that the public's
best interest is served. Somewhere in the process there has to
be the ability to challenge the contract - on judicial issues,
on procedural issues, and on constitutional issues - in order to
build public confidence. Again, he remarked, the ability to
challenge could occur later in the process and perhaps that
makes more sense, but it should occur somewhere or else the
public trust won't be gained.
MR. MYERS said:
And I'll give you an example. [In] the shallow gas
leasing program, we removed the finding process
altogether, [and] the legislature made a determination
that the shallow gas leases were in fact [in] the best
interest of the state. That whole program blew up on
us, and we ended up having to spend all that time with
the legislature but also with [the Department of
Natural Resources' (DNR's)] public process. The
fundamental reason it blew up: there was no public
input into a best interest finding process. So that
to me was a living example, where fixing it after the
fact took years and we still, probably, haven't
totally regained public trust.
2:23:37 PM
CHAIR McGUIRE asked Mr. Myers to suggest a way to change the
bill so that it provides the public with the assurance that the
best interest finding was really made.
MR. MYERS suggested preserving the traditional checks and
balances and allow the public - at that latter date - to address
not only constitutional issues but also substantive issues and
procedural errors. In other words, provide a demonstration that
the statutory requirements have in fact been met. The
legislature sets a policy by the way it writes a law and by the
way it might amend the law before the process is done.
Therefore, the legislature must make sure that the contract
complies with the law, and the finding is the vehicle that
pertains to substantive issues such as whether the gas is
actually stranded. Though if that is not the goal, then the law
should be dramatically changed such that it doesn't require a
demonstration that the gas is stranded. Also, all other
reasonable alternatives should be looked at, and a balancing
test performed on them. He predicted that during any court
review, the court will give the legislature a lot of discretion
with regard to its determination.
MR. MYERS, in conclusion, said that the ability of the public to
challenge the administration forces the administration to ensure
that the finding is very, very good.
REPRESENTATIVE GARA asked how long the public has to look at a
draft contract after it is released by the administration.
MR. OSTROVSKY and MR. PORTER said a minimum of 30 days.
REPRESENTATIVE GARA asked how they could ensure that the public
gets access to the documentation it needs before running out of
time to comment.
MR. MYERS offered that the logical time for the data to be
released is at the same time that the preliminary best interest
finding comes out. Usually the public comment period is long
enough to sufficiently absorb the data and provide meaningful
input; this should also gives the administration adequate time
to adjust the final contract appropriate to the comments.
REPRESENTATIVE GARA asked how much time should be allowed in
this case once the documents are made public.
MR. MYERS suggested a 90-day period at a minimum.
REPRESENTATIVE GARA asked Mr. Myers whether he would be amenable
to a change that would provide for a 90-day public comment.
MR. MYERS acknowledged that delaying the legislative process
could be problematic if the contract engenders early spurious
lawsuits. He reiterated the need for the finding and its
supporting documentation to be made available to the public at
the same time.
2:31:02 PM
MR. MYERS, in response to a question, stressed the importance of
building the public trust via allowing public input and of the
administration's responsibility in addressing the public's
comments. In the case of the proposed gas contract, however, it
is going to be very difficult for the public to provide input
without first seeing the economic and other analyses that the
administration and its consultants have performed. Public
confidence is built in a robust finding process where the
public's input has to be considered and, if it's failed to be
considered, then there is redress via the courts. He mentioned
that the aforementioned failed shallow gas leasing program had
to be repealed and replaced with a program that had a meaningful
finding process.
REPRESENTATIVE GRUENBERG characterized that as an important
point, offered his recollection of what occurred when the Trans-
Alaska Pipeline legislation was passed in Congress, and
suggested that perhaps taking a similar approach might prove a
viable alternative.
REPRESENTATIVE WILSON questioned whether the legislature is
really going to get enough information in to order make a
decision.
MR. MYERS remarked on the Legislative Budget and Audit
Committee's arranging for its members to be able to see the
confidential contract if they signed a confidentiality
agreement. He acknowledged that absorbing the information is a
daunting and challenging task, and pointed out that currently
the public has almost no information. So what is needed is
either some mechanism in place to release that information or
some way that the public can engage in a discovery process of
some sort. He acknowledged that releasing the data is also a
difficult process for the administration to undertake, but in
order for a member of the public to truly understand the
underlying analyses, he/she must be provided with some
information from all categories. Under current law, a lot of
that type of information wouldn't have to be released if the
administration chose not to release it; therefore, some form of
discovery process might have to occur in order for members of
the public or legislature to be satisfied that they have enough
data.
CHAIR McGUIRE, in response to a question, expressed a preference
for addressing this bill separately from any others that might
be somewhat related.
[HB 502 was set aside.]
SB 20 - OFFENSES AGAINST UNBORN CHILDREN
2:37:53 PM
CHAIR McGUIRE announced that the next order of business would be
CS FOR SENATE BILL NO. 20(JUD), "An Act relating to offenses
against unborn children."
REPRESENTATIVE COGHILL made a motion to take from the table the
proposed House committee substitute (HCS) for SB 20, Version 24-
LS0197\B, Mischel, 3/24/06, which was tabled at the 3/24/06
hearing.
REPRESENTATIVE GARA objected.
2:38:45 PM
A roll call vote was taken. Representatives McGuire, Coghill,
Wilson, Kott, and Anderson voted in favor of taking from the
table the proposed HCS for SB 20, Version 24-LS0197\B, Mischel,
3/24/06. Representatives Gruenberg and Gara voted against it.
Therefore, Version B was before the committee by a vote of 5-2.
The committee took an at-ease from 2:39 p.m. to 2:56 p.m.
REPRESENTATIVE GARA made a motion to adopt Conceptual Amendment
1, labeled 24-LS0197\U.9, Mischel/Luckhaupt, 3/24/06. [The text
of Conceptual Amendment 1 can be found at the end of the minutes
on SB 20.]
REPRESENTATIVE COGHILL objected.
The committee took a brief at-ease.
2:59:44 PM
CHAIR McGUIRE clarified that Amendment 1, which was drafted for
Version U, had been offered as conceptual in order that the
drafters can conform it to Version B. She explained that the
basic tenet of Version B is that it doesn't include any
reference to the pregnant female being charged with murder. She
noted that Representative Gara had provided committee members
with a document entitled, "Excerpts from the Supreme Court's
Decision in Roe v. Wade".
REPRESENTATIVE ANDERSON relayed that research has indicated that
several states have codified what Senator Dyson wants to do via
SB 20, and that several states have codified what Representative
Gara is proposing via Conceptual Amendment 1, which is to
provide, without reference to "an unborn child", enhanced
penalties for those who hurt a pregnant woman. Representative
Anderson indicated concern with regard to a situation in which
someone harmed or killed a pregnant woman, who was then found to
be only 10 weeks pregnant.
REPRESENTATIVE ANDERSON surmised that under Version B, the
person could be charged with two separate crimes; however, under
Conceptual Amendment 1, the person would only be charged with
one crime, though one that had a stiffer penalty. He said he
wants to provide for enhanced penalties, but is unclear whether
[this legislation] is deciding when human life begins and thus
perhaps overriding Roe V. Wade. He said he didn't like that
this legislation provides for charging an individual for the
harm or death of a pregnant woman and her unborn child from the
time the sperm meets the egg.
REPRESENTATIVE GARA said he struggles with the same issue.
However, there is no clean way in statute to specify the impact
of these situations on an individual's life. Normally,
sentences deter an action; therefore, the punishment is
important rather than the mere statutory language. Conceptual
Amendment 1 will impose at least the same minimum sentence as if
there were two crimes for all of the major crimes in SB 20. For
example, Version B refers to the crime of first degree murder of
an unborn child that assigns a minimum of 20 years for the act
against the woman and a minimum of 20 years for the act against
the unborn child, whereas Conceptual Amendment 1 would provide
for a minimum sentence of 40 years for that same behavior.
REPRESENTATIVE GARA pointed out that one of the flaws of Version
B is that it refers to murder of the baby for incidents that
happen [beginning] from one day after the pregnancy begins.
Therefore, one may say it's necessary to make it murder once the
baby is viable. However, that requires some sort of medical
evidence that the baby is viable, which is the route that
Indiana took. The problem with the aforementioned is that the
child that would've been present after nine months is taken
away, and thus to recognize the incident differently depending
upon when in the pregnancy the incident occurred disregards the
fact that the woman and the father lost the child regardless of
its viability. Conceptual Amendment 1, in comparison,
recognizes a sentence that reflects the seriousness of the
crime.
REPRESENTATIVE COGHILL interjected to note that Section 5
defines an unborn child as, "a member of the species Homo
sapiens, at any state of development, who is carried in the
womb."
REPRESENTATIVE GARA interpreted that language to mean that it is
a baby at day one and so from that point on [killing the baby]
would be considered murder.
REPRESENTATIVE COGHILL offered his understanding that the term
"unborn child" refers to a fetus at any stage of development.
REPRESENTATIVE GARA acknowledged that point and characterized
that as a problem. He opined that he didn't believe the
committee should determine when viability occurs and then make
the crime different than if it had occurred the day before,
because that's an artificial delineation.
3:10:35 PM
REPRESENTATIVE ANDERSON mentioned that he is in favor of
rejecting Conceptual Amendment 1. He opined that if one harms a
woman, he/she risks harming or killing an unborn child if the
woman is pregnant, and thus he/she ought to be doubly punished
because of the harm or death of the woman and potentially to the
unborn child.
REPRESENTATIVE COGHILL surmised that the concept being set forth
in Conceptual Amendment 1 is that the crime is against one
individual. However, Version B stipulates that the crime is
against two individuals. He announced that he would oppose
Conceptual Amendment 1 because an individual who attacks a
pregnant woman and injures and/or kills her unborn child has
harmed two victims.
REPRESENTATIVE GARA recalled that Representative Anderson wanted
to provide for additional punishment even if the perpetrator
didn't know that the woman was pregnant. The aforementioned is
accomplished via Conceptual Amendment 1 because even if the
perpetrator didn't know the woman was pregnant, her pregnancy
would be considered an aggravating factor.
REPRESENTATIVE GARA offered his belief that Roe v. Wade is
partly predicated on language that says society hasn't yet
recognized that the fetus is a person from day one of the
pregnancy. However, if states pass laws such that the pregnancy
shall be treated as involving a second person, then the Roe v.
Wade ruling could be in jeopardy because there are law scholars
who predict that legislation such as SB 20 will be utilized to
undermine the rights in Roe v. Wade.
REPRESENTATIVE GARA offered further examples of the lengths of
sentences that are being proposed via Conceptual Amendment 1,
and surmised that one of the questions being raised revolves
around the issue of defining when life begins, and another is
whether to impose a harsh penalty in recognition of the
seriousness of the crime. He then referred to the current law
regarding actions that cause a miscarriage.
REPRESENTATIVE COGHILL suggested that they proceed to vote on
Conceptual Amendment 1.
REPRESENTATIVE ANDERSON reiterated his argument against
Conceptual Amendment 1.
3:19:10 PM
REPRESENTATIVE GARA surmised that without the adoption of
Conceptual Amendment 1, someone who causes a miscarriage three
days after conception could be charged with the crime of murder.
CHAIR McGUIRE pointed out that a woman can't determine she is
pregnant within three days of conception, and that the norm for
determining pregnancy is five weeks.
REPRESENTATIVE GARA opined that it's a stretch to call a
miscarriage caused negligently or recklessly at the earliest
stage of development of a pregnancy a homicide, which is what SB
20 does, and therefore the crime should be recognized in terms
of the sentence. He reminded the committee that in any murder,
no matter how many victims are left, it's not referred to as
murder that has resulted in the damage of two children or three
children or four children, it's referred to as murder and there
is simply recognition that damage has been done to the rest of
the family. Every single victim doesn't have to be named as a
victim of a separate crime in order to protect society or honor
the victims, because that's accomplished through the sentence,
he opined.
3:21:59 PM
A roll call vote was taken. Representatives Gara and Gruenberg
voted in favor of Conceptual Amendment 1. Representatives
Anderson, Coghill, Kott, McGuire, and Wilson voted against it.
Therefore, Conceptual Amendment 1 failed by a vote of 2-5.
3:22:22 PM
REPRESENTATIVE GARA made a motion to adopt Conceptual
Amendment 2, labeled 24-LS0197\U.10, Mischel, 4/10/06, and 24-
LS0197\U.11, Mischel, 4/10/06, [text provided at the end of the
minutes on SB 20.]
REPRESENTATIVE COGHILL objected.
REPRESENTATIVE GARA explained that Conceptual Amendment 2
utilizes the approach used in Indiana such that an unborn child
is defined as a child at the point of viability. However, at
the cellular level prior to viability, it's not an unborn child
but rather a pregnancy albeit just as valuable as an unborn
child. Conceptual Amendment 2 specifies that if a crime is
committed against [a fetus] that is at the point of viability or
afterwards, the [punishment] path laid out by the sponsor would
be followed. If the crime is committed prior to viability, the
penalties are enhanced substantially in terms of an aggravator.
The aforementioned proposal recognizes the value of human life
and pregnancy while avoiding the debate regarding viability, he
opined.
REPRESENTATIVE COGHILL remarked that there is a legal and
national debate occurring regarding when an [unborn] child is
viable. If the [unborn] child is wanted and being nurtured by
the mother, he considered it to be viable whether it could fit
the description specified [in Conceptual Amendment 2] or not.
He indicated he opposed moving down a path that would lead to
trying to develop a definition of viability.
REPRESENTATIVE GARA clarified that he never said that a
pregnancy is worth less at a certain stage.
3:27:28 PM
REPRESENTATIVE ANDERSON remarked on the difficulty of
establishing a demarcation [with regard to when an unborn child
is viable].
REPRESENTATIVE WILSON announced that she is speaking in
opposition to Conceptual Amendment 2. Drawing on her experience
as a nurse who worked in surgery for many years, she offered
examples wherein expectant parents were devastated by
miscarriages regardless of the stage of the pregnancy.
REPRESENTATIVE GARA stated that Conceptual Amendment 2
recognizes the sanctity of a pregnancy and the family that
someone prevents from developing due to a crime [against the
pregnant woman and unborn child] via its sentencing provisions.
He specified that he wanted to remove the language that people
could use to fight Roe v. Wade. Conceptual Amendment 2 allows
the use of the language of murder when it involves a child after
viability, and provides an enhanced sentence via an aggravator
for terminating the pregnancy prior to viability. "In terms of
the penalty and society's condemnation of your conduct, it's the
same; it's just whether or not we're going to pick this fight
over Roe v. Wade, which I don't think we need to do," he opined.
REPRESENTATIVE GARA, during a roll call vote, withdrew
Conceptual Amendment 2.
[An amendment labeled Amendment 3 was also withdrawn because its
language had already been incorporated into Version B.]
The committee took an at-ease from 3:33 p.m. to 3:34 p.m.
3:34:31 PM
REPRESENTATIVE GRUENBERG made a motion to adopt Conceptual
Amendment 4, labeled 24-LS0197\U.3, Mischel, 2/22/06, which
read:
Page 1, following line 2:
Insert a new bill section to read:
"* Section 1. The uncodified law of the State of
Alaska is amended by adding a new section to read:
LEGISLATIVE INTENT. It is the intent of the
legislature that nothing in this Act is intended to
limit or alter a woman's right to choose the outcome
of her pregnancy, as guaranteed by the Constitution of
the United States and the Constitution of the State of
Alaska."
Renumber the following bill sections accordingly.
REPRESENTATIVE GRUENBERG offered his belief that Conceptual
Amendment 4 is in accord with Senator Dyson's intent.
REPRESENTATIVE COGHILL objected.
CHAIR McGUIRE offered her understanding that from the beginning
the sponsor has stated that SB 20 wouldn't be used to enter into
a Roe v. Wade battle. The choice, she opined, is really about
protecting pregnant women and their unborn children in the State
of Alaska. Chair McGuire questioned how binding the intent
language proposed in Conceptual Amendment 4 is.
REPRESENTATIVE GRUENBERG stated that the intent language is
there and can be used by the court if and when it wishes.
REPRESENTATIVE COGHILL recalled that the sponsor had stated his
intention to recognize that there are two victims when there has
been a crime against a pregnant woman, and surmised, therefore,
that the sponsor wouldn't have a problem with Conceptual
Amendment 4.
REPRESENTATIVE COGHILL then withdrew his objection.
REPRESENTATIVE GARA objected and moved that the committee adopt
an amendment to Conceptual Amendment 4 such that the intent
language would be placed in statute.
REPRESENTATIVE GRUENBERG opined that doing so would be very
unusual, and that he would rather address the proposed intent
language as it's presented.
REPRESENTATIVE GARA opined that if everyone is representing that
no one is trying to overrule Roe v. Wade, then [the intent
language] should be included in statute.
REPRESENTATIVE GRUENBERG mentioned that [the intent language]
will be referred to in the notes [of the statute].
3:38:40 PM
A roll call vote was taken. Representatives Kott and Gara voted
in favor of the amendment to Conceptual Amendment 4.
Representatives Coghill, Gruenberg, Wilson, Anderson, and
McGuire voted against it. Therefore, the amendment to
Conceptual Amendment 4 failed to be adopted by a vote of 2-5.
CHAIR McGUIRE, upon determining that there were no further
objections, announced that Conceptual Amendment 4 was adopted.
3:39:18 PM
REPRESENTATIVE GRUENBERG, upon determining that an amendment
labeled 24-LS0197\U.4, Mischel, 2/22/06, would stray from the
purpose of having two victims, announced that he would not be
offering that amendment.
REPRESENTATIVE GARA made a motion to adopt Amendment 6, which
read [original punctuation provided]:
Page 2, lines 21-24
Delete all material.
REPRESENTATIVE ANDERSON objected.
REPRESENTATIVE GARA pointed out that language on page 2, lines
21-24, creates a new crime called criminally negligent homicide
of an unborn child if, with criminal negligence, the person
causes a miscarriage. Doing the aforementioned for intentional
and reckless crimes is one thing, but he said he didn't want to
also include it for car accidents.
REPRESENTATIVE ANDERSON removed his objection.
REPRESENTATIVE COGHILL objected and pointed out that whether the
child is in the womb or in the seat next to the woman and dies
because of negligence, the responsibility and pain remain.
Representative Coghill said he was speaking in opposition to
Amendment 6.
REPRESENTATIVE GARA opined that if Amendment 6 passes, there
should be an aggravator for those situations in which a
miscarriage is caused. He reiterated that he is respectful of
the value of a pregnancy regardless of its stage. He questioned
whether the desire is to charge someone who was driving 10 miles
per hour over the speed limit but gets in an accident with a
homicide and subject him/her to a lengthy jail sentence. Again,
he expressed a preference for punishing such behavior with an
aggravator.
REPRESENTATIVE GRUENBERG disagreed, and referred to a law
wherein if a person strikes someone in the head and he/she has a
really thin skull and is therefore killed by the blow, the
assailant is responsible for the result even if excessive force
wasn't used. Another example would be if a person is
negligently driving and hits a truck which happens to have a
drunken individual sleeping in the back and he/she dies, the
negligent driver remains responsible. The situation to which
Representative Gara referred is very similar, Representative
Gruenberg suggested.
REPRESENTATIVE GARA clarified that that law pertains to
situations in which a person causes an injury to someone who is
very vulnerable, and even though the [assailant] doesn't know
that the victim is vulnerable, [the assailant] is still liable
for damages. However, in such a situation, he surmised, the
[assailant] wouldn't be called a murderer; rather, the "eggshell
theory" has to do with civil liability for damages.
REPRESENTATIVE GRUENBERG asked whether it also deals with
criminal law.
3:45:25 PM
CHAIR McGUIRE offered her understanding that the eggshell theory
is a civil theory, but the premise behind it is similar. She
reminded the committee that AS 04.21.080(a)(1) says:
a person acts with "criminal negligence" with respect
to a result or a circumstance described by a provision
of law defining an offense when the person fails to
perceive a substantial and unjustifiable risk that the
result will occur or that the circumstance exists.
The risk must be of such a nature and degree that the
failure to perceive it constitutes a gross deviation
from the standard of care that a reasonable person
would observe in the situation;
REPRESENTATIVE GRUENBERG suggested that two slightly different
things are being discussed. One matter is the mental state with
which the act was done, while the other is the responsibility
for a second individual in the automobile that [the assailant]
didn't know was present.
REPRESENTATIVE GARA argued that the only question is whether it
should be called homicide in the aforementioned case of a car
accident.
3:47:16 PM
A roll call vote was taken. Representatives Gara and Kott voted
in favor of Amendment 6. Representatives Gruenberg, Wilson,
McGuire, Anderson, and Coghill voted against it. Therefore,
Amendment 6 failed to be adopted by a vote of 2-5.
3:47:38 PM
REPRESENTATIVE GARA made a motion to adopt Amendment 7, which
read [original punctuation provided]:
Page 2, line 7 following "life":
Insert:
"; for purposes of this paragraph, a
pregnant woman's decision to remain in a relationship
in which domestic violence as defined in AS 18.66.990
has occurred does not constitute conduct manifesting
an extreme indifference to the value of human life."
Page 3, line 12 following "life":
Insert:
"; for purposes of this paragraph, a
pregnant woman's decision to remain in a relationship
in which domestic violence as defined in AS 18.66.990
has occurred does not constitute conduct manifesting
an extreme indifference to the value of human life."
CHAIR McGUIRE objected for discussion purposes.
REPRESENTATIVE GARA reminded the committee that an earlier
version of SB 20 stipulated that a pregnant woman's decision to
remain in a relationship that involved domestic violence wasn't
something that the woman could be charged for if it resulted in
a miscarriage caused by the abuser.
CHAIR McGUIRE withdrew her objection, and asked whether there
were any further objections to Amendment 7. There being none,
Amendment 7 was adopted.
3:48:33 PM
REPRESENTATIVE COGHILL moved to report the proposed HCS for SB
20, Version 24-LS0197\B, Mischel, 3/24/06, as amended, out of
committee with individual recommendations and the accompanying
fiscal notes.
REPRESENTATIVE GRUENBERG objected.
A roll call vote was taken. Representatives McGuire, Wilson,
Anderson, Coghill, and Kott voted in favor of reporting the
proposed HCS for SB 20, Version 24-LS0197\B, Mischel, 3/24/06,
as amended, out of committee. Representatives Gruenberg and
Gara voted against it. Therefore, HCS CSSB 20(JUD) was reported
from the House Judiciary Standing Committee by a vote of 5-2.
Conceptual Amendment 1 [24-LS0197\U.9, Mischel/Luckhaupt,
3/24/06] (failed to be adopted):
Page 1, line 1:
Delete all material and insert:
"An Act relating to sentencing factors and
penalties for crimes against pregnant women."
Page 1, line 3, through page 7, line 18:
Delete all material and insert:
"* Section 1. AS 11 is amended by adding a new
chapter to read:
Chapter 32. Enhanced Penalties.
Sec. 11.32.100. Penalties for crimes committed
against pregnant women. (a) Notwithstanding another
provision of this title or AS 12, if a person commits
a crime defined in this title against a pregnant woman
who the person knew or should have known to be
pregnant that results in a miscarriage or stillbirth,
the crime shall be punished in the following manner:
(1) a crime defined as murder in the first
degree under AS 11.41.100 shall be punished by a
sentence of 40 - 99 years;
(2) a crime defined as murder in the second
degree under AS 11.41.110 shall be punished by a
sentence of 30 - 99 years;
(3) a crime defined in this title as a
class A felony shall be punished as an unclassified
felony in the manner provided for unclassified
felonies in AS 12.55.125;
(4) a crime defined in this title as a
class B felony shall be punished as a class A felony
in the manner provided for class A felonies in
AS 12.55.125;
(5) a crime defined in this title as a
class C felony shall be punished as a class B felony
in the manner provided for class B felonies in
AS 12.55.125;
(6) a crime defined in this title as a
class A misdemeanor shall be punished as a class C
felony in the manner provided for class C felonies in
AS 12.55.125;
(7) a crime defined in this title as a
class B misdemeanor shall be punished as a class A
misdemeanor in the manner provided for class A
misdemeanors in AS 12.55.135.
(b) The penalties in (a) of this section do not
apply to acts committed
(1) during a legal abortion to which the
pregnant woman, or a person authorized by law to act
on the pregnant woman's behalf, consented or for which
the consent is implied by law;
(2) during any medical treatment of the
pregnant woman or the fetus; or
(3) by a pregnant woman against herself.
(c) In this section,
(1) "miscarriage" means the interruption of
the normal development of the fetus, other than by a
live birth or by an induced abortion, resulting in the
complete expulsion or extraction of the fetus from a
pregnant woman;
(2) "stillbirth" means the death of a fetus
before the complete expulsion or extraction from a
woman, other than by an induced abortion, irrespective
of the duration of the pregnancy.
* Sec. 2. AS 12.55.125(a) is amended to read:
(a) A defendant convicted of murder in the first
degree shall be sentenced to a definite term of
imprisonment of at least 20 years but not more than 99
years. A defendant convicted of murder in the first
degree enhanced under AS 11.32.100(a)(1) shall be
sentenced to a definite term of imprisonment of at
least 40 years but not more than 99 years. A
defendant convicted of murder in the first degree
shall be sentenced to a mandatory term of imprisonment
of 99 years when
(1) the defendant is convicted of the
murder of a uniformed or otherwise clearly identified
peace officer, fire fighter, or correctional employee
who was engaged in the performance of official duties
at the time of the murder;
(2) the defendant has been previously
convicted of
(A) murder in the first degree under
AS 11.41.100 or former AS 11.15.010 or 11.15.020;
(B) murder in the second degree under
AS 11.41.110 or former AS 11.15.030; or
(C) homicide under the laws of another
jurisdiction when the offense of which the defendant
was convicted contains elements similar to first
degree murder under AS 11.41.100 or second degree
murder under AS 11.41.110;
(3) the court finds by clear and convincing
evidence that the defendant subjected the murder
victim to substantial physical torture; or
(4) the defendant is convicted of the
murder of and personally caused the death of a person,
other than a participant, during a robbery.
* Sec. 3. AS 12.55.125(b) is amended to read:
(b) A defendant convicted of attempted murder in
the first degree, solicitation to commit murder in the
first degree, conspiracy to commit murder in the first
degree, kidnapping, or misconduct involving a
controlled substance in the first degree shall be
sentenced to a definite term of imprisonment of at
least five years but not more than 99 years. A
defendant convicted of murder in the second degree or
a class A felony enhanced under AS 11.32.100(a)(3)
shall be sentenced to a definite term of imprisonment
of at least 10 years but not more than 99 years. A
defendant convicted of murder in the second degree
shall be sentenced to a definite term of imprisonment
of at least 20 years but not more than 99 years when
the sentence is enhanced under AS 11.32.100(a)(2) or
when the defendant is convicted of the murder of a
child under 16 years of age and the court finds by
clear and convincing evidence that the defendant (1)
was a natural parent, a stepparent, an adopted parent,
a legal guardian, or a person occupying a position of
authority in relation to the child; or (2) caused the
death of the child by committing a crime against a
person under AS 11.41.200 - 11.41.530. In this
subsection, "legal guardian" and "position of
authority" have the meanings given in AS 11.41.470.
* Sec. 4. AS 12.55.155(c) is amended to read:
(c) The following factors shall be considered by
the sentencing court if proven in accordance with this
section, and may allow imposition of a sentence above
the presumptive range set out in AS 12.55.125:
(1) a person, other than an accomplice,
sustained physical injury as a direct result of the
defendant's conduct;
(2) the defendant's conduct during the
commission of the offense manifested deliberate
cruelty to another person;
(3) the defendant was the leader of a group
of three or more persons who participated in the
offense;
(4) the defendant employed a dangerous
instrument in furtherance of the offense;
(5) the defendant knew or reasonably should
have known that the victim of the offense was
particularly vulnerable or incapable of resistance due
to advanced age, disability, ill health, or extreme
youth or was for any other reason substantially
incapable of exercising normal physical or mental
powers of resistance;
(6) the defendant's conduct created a risk
of imminent physical injury to three or more persons,
other than accomplices;
(7) a prior felony conviction considered
for the purpose of invoking a presumptive range under
this chapter was of a more serious class of offense
than the present offense;
(8) the defendant's prior criminal history
includes conduct involving aggravated or repeated
instances of assault behavior;
(9) the defendant knew that the offense
involved more than one victim;
(10) the conduct constituting the offense
was among the most serious conduct included in the
definition of the offense;
(11) the defendant committed the offense
under an agreement that the defendant either pay or be
paid for the commission of the offense, and the
pecuniary incentive was beyond that inherent in the
offense itself;
(12) the defendant was on release under
AS 12.30.020 or 12.30.040 for another felony charge or
conviction or for a misdemeanor charge or conviction
having assault as a necessary element;
(13) the defendant knowingly directed the
conduct constituting the offense at an active officer
of the court or at an active or former judicial
officer, prosecuting attorney, law enforcement
officer, correctional employee, fire fighter,
emergency medical technician, paramedic, ambulance
attendant, or other emergency responder during or
because of the exercise of official duties;
(14) the defendant was a member of an
organized group of five or more persons, and the
offense was committed to further the criminal
objectives of the group;
(15) the defendant has three or more prior
felony convictions;
(16) the defendant's criminal conduct was
designed to obtain substantial pecuniary gain and the
risk of prosecution and punishment for the conduct is
slight;
(17) the offense was one of a continuing
series of criminal offenses committed in furtherance
of illegal business activities from which the
defendant derives a major portion of the defendant's
income;
(18) the offense was a felony
(A) specified in AS 11.41 and was committed
against a spouse, a former spouse, or a member of the
social unit made up of those living together in the
same dwelling as the defendant;
(B) specified in AS 11.41.410 - 11.41.458
and the defendant has engaged in the same or other
conduct prohibited by a provision of AS 11.41.410 -
11.41.460 involving the same or another victim; or
(C) specified in AS 11.41 that is a crime
involving domestic violence and was committed in the
physical presence or hearing of a child under 16 years
of age who was, at the time of the offense, living
within the residence of the victim, the residence of
the perpetrator, or the residence where the crime
involving domestic violence occurred;
(19) the defendant's prior criminal history
includes an adjudication as a delinquent for conduct
that would have been a felony if committed by an
adult;
(20) the defendant was on furlough under
AS 33.30 or on parole or probation for another felony
charge or conviction that would be considered a prior
felony conviction under AS 12.55.145(a)(1)(B);
(21) the defendant has a criminal history
of repeated instances of conduct violative of criminal
laws, whether punishable as felonies or misdemeanors,
similar in nature to the offense for which the
defendant is being sentenced under this section;
(22) the defendant knowingly directed the
conduct constituting the offense at a victim because
of that person's race, sex, color, creed, physical or
mental disability, ancestry, or national origin;
(23) the defendant is convicted of an
offense specified in AS 11.71 and
(A) the offense involved the delivery of a
controlled substance under circumstances manifesting
an intent to distribute the substance as part of a
commercial enterprise; or
(B) at the time of the conduct resulting in
the conviction, the defendant was caring for or
assisting in the care of a child under 10 years of
age;
(24) the defendant is convicted of an
offense specified in AS 11.71 and the offense involved
the transportation of controlled substances into the
state;
(25) the defendant is convicted of an
offense specified in AS 11.71 and the offense involved
large quantities of a controlled substance;
(26) the defendant is convicted of an
offense specified in AS 11.71 and the offense involved
the distribution of a controlled substance that had
been adulterated with a toxic substance;
(27) the defendant, being 18 years of age
or older,
(A) is legally accountable under
AS 11.16.110(2) for the conduct of a person who, at
the time the offense was committed, was under 18 years
of age and at least three years younger than the
defendant; or
(B) is aided or abetted in planning or
committing the offense by a person who, at the time
the offense was committed, was under 18 years of age
and at least three years younger than the defendant;
(28) the victim of the offense is a person
who provided testimony or evidence related to a prior
offense committed by the defendant;
(29) the defendant committed the offense
for the benefit of, at the direction of, or in
association with a criminal street gang;
(30) the defendant is convicted of an
offense specified in AS 11.41.410 - 11.41.455, and the
defendant knowingly supplied alcohol or a controlled
substance to the victim in furtherance of the offense
with the intent to make the victim incapacitated; in
this paragraph, "incapacitated" has the meaning given
in AS 11.41.470;
(31) the defendant's prior criminal history
includes convictions for five or more crimes in this
or another jurisdiction that are class A misdemeanors
under the law of this state, or having elements
similar to a class A misdemeanor; two or more
convictions arising out of a single continuous episode
are considered a single conviction; however, an
offense is not a part of a continuous episode if
committed while attempting to escape or resist arrest
or if it is an assault upon a uniformed or otherwise
clearly identified peace officer; notice and denial of
convictions are governed by AS 12.55.145(b), (c), and
(d);
(32) the offense is a violation of AS 11.41
or AS 11.46.400 and the offense occurred on school
grounds, on a school bus, at a school-sponsored event,
or in the administrative offices of a school district
if students are educated at that office; in this
paragraph,
(A) "school bus" has the meaning given in
AS 11.71.900;
(B) "school district" has the meaning given
in AS 47.07.063;
(C) "school grounds" has the meaning given
in AS 11.71.900;
(33) the defendant is convicted of an
offense specified in AS 11.41 and the offense involved
physical injury to a pregnant woman.
* Sec. 5. The uncodified law of the State of
Alaska is amended by adding a new section to read:
APPLICABILITY. AS 11.32.100, enacted by sec. 1
of this Act, and AS 12.55.125(a) - (c), as amended by
secs. 2 - 4 of this Act, apply to crimes committed on
or after the effective date of this Act."
Conceptual Amendment 2 [labeled 24-LS0197\U.10, Mischel,
4/10/06, and 24-LS0197\U.11, Mischel, 4/10/06] (withdrawn)
Page 5, lines 27 - 28:
Delete all material and insert:
"(64) "unborn child" means a fetus that has
attained viability; in this paragraph, "viability"
means the ability to live outside of the mother's
womb."
Page 1, line 1, following "children":
Insert "; and adding aggravating factors in
sentencing"
Page 7, following line 18:
Insert new bill sections to read:
"* Sec. 9. AS 12.55.155(c) is amended to read:
(c) The following factors shall be considered by
the sentencing court if proven in accordance with this
section, and may allow imposition of a sentence above
the presumptive range set out in AS 12.55.125:
(1) a person, other than an accomplice,
sustained physical injury as a direct result of the
defendant's conduct;
(2) the defendant's conduct during the
commission of the offense manifested deliberate
cruelty to another person;
(3) the defendant was the leader of a group
of three or more persons who participated in the
offense;
(4) the defendant employed a dangerous
instrument in furtherance of the offense;
(5) the defendant knew or reasonably should
have known that the victim of the offense was
particularly vulnerable or incapable of resistance due
to advanced age, disability, ill health, or extreme
youth or was for any other reason substantially
incapable of exercising normal physical or mental
powers of resistance;
(6) the defendant's conduct created a risk
of imminent physical injury to three or more persons,
other than accomplices;
(7) a prior felony conviction considered
for the purpose of invoking a presumptive range under
this chapter was of a more serious class of offense
than the present offense;
(8) the defendant's prior criminal history
includes conduct involving aggravated or repeated
instances of assaultive behavior;
(9) the defendant knew that the offense
involved more than one victim;
(10) the conduct constituting the offense
was among the most serious conduct included in the
definition of the offense;
(11) the defendant committed the offense
under an agreement that the defendant either pay or be
paid for the commission of the offense, and the
pecuniary incentive was beyond that inherent in the
offense itself;
(12) the defendant was on release under
AS 12.30.020 or 12.30.040 for another felony charge or
conviction or for a misdemeanor charge or conviction
having assault as a necessary element;
(13) the defendant knowingly directed the
conduct constituting the offense at an active officer
of the court or at an active or former judicial
officer, prosecuting attorney, law enforcement
officer, correctional employee, fire fighter,
emergency medical technician, paramedic, ambulance
attendant, or other emergency responder during or
because of the exercise of official duties;
(14) the defendant was a member of an
organized group of five or more persons, and the
offense was committed to further the criminal
objectives of the group;
(15) the defendant has three or more prior
felony convictions;
(16) the defendant's criminal conduct was
designed to obtain substantial pecuniary gain and the
risk of prosecution and punishment for the conduct is
slight;
(17) the offense was one of a continuing
series of criminal offenses committed in furtherance
of illegal business activities from which the
defendant derives a major portion of the defendant's
income;
(18) the offense was a felony
(A) specified in AS 11.41 and was committed
against a spouse, a former spouse, or a member of the
social unit made up of those living together in the
same dwelling as the defendant;
(B) specified in AS 11.41.410 - 11.41.458
and the defendant has engaged in the same or other
conduct prohibited by a provision of AS 11.41.410 -
11.41.460 involving the same or another victim; or
(C) specified in AS 11.41 that is a crime
involving domestic violence and was committed in the
physical presence or hearing of a child under 16 years
of age who was, at the time of the offense, living
within the residence of the victim, the residence of
the perpetrator, or the residence where the crime
involving domestic violence occurred;
(19) the defendant's prior criminal history
includes an adjudication as a delinquent for conduct
that would have been a felony if committed by an
adult;
(20) the defendant was on furlough under
AS 33.30 or on parole or probation for another felony
charge or conviction that would be considered a prior
felony conviction under AS 12.55.145(a)(1)(B);
(21) the defendant has a criminal history
of repeated instances of conduct violative of criminal
laws, whether punishable as felonies or misdemeanors,
similar in nature to the offense for which the
defendant is being sentenced under this section;
(22) the defendant knowingly directed the
conduct constituting the offense at a victim because
of that person's race, sex, color, creed, physical or
mental disability, ancestry, or national origin;
(23) the defendant is convicted of an
offense specified in AS 11.71 and
(A) the offense involved the delivery of a
controlled substance under circumstances manifesting
an intent to distribute the substance as part of a
commercial enterprise; or
(B) at the time of the conduct resulting in
the conviction, the defendant was caring for or
assisting in the care of a child under 10 years of
age;
(24) the defendant is convicted of an
offense specified in AS 11.71 and the offense involved
the transportation of controlled substances into the
state;
(25) the defendant is convicted of an
offense specified in AS 11.71 and the offense involved
large quantities of a controlled substance;
(26) the defendant is convicted of an
offense specified in AS 11.71 and the offense involved
the distribution of a controlled substance that had
been adulterated with a toxic substance;
(27) the defendant, being 18 years of age
or older,
(A) is legally accountable under
AS 11.16.110(2) for the conduct of a person who, at
the time the offense was committed, was under 18 years
of age and at least three years younger than the
defendant; or
(B) is aided or abetted in planning or
committing the offense by a person who, at the time
the offense was committed, was under 18 years of age
and at least three years younger than the defendant;
(28) the victim of the offense is a person
who provided testimony or evidence related to a prior
offense committed by the defendant;
(29) the defendant committed the offense
for the benefit of, at the direction of, or in
association with a criminal street gang;
(30) the defendant is convicted of an
offense specified in AS 11.41.410 - 11.41.455, and the
defendant knowingly supplied alcohol or a controlled
substance to the victim in furtherance of the offense
with the intent to make the victim incapacitated; in
this paragraph, "incapacitated" has the meaning given
in AS 11.41.470;
(31) the defendant's prior criminal history
includes convictions for five or more crimes in this
or another jurisdiction that are class A misdemeanors
under the law of this state, or having elements
similar to a class A misdemeanor; two or more
convictions arising out of a single continuous episode
are considered a single conviction; however, an
offense is not a part of a continuous episode if
committed while attempting to escape or resist arrest
or if it is an assault upon a uniformed or otherwise
clearly identified peace officer; notice and denial of
convictions are governed by AS 12.55.145(b), (c), and
(d);
(32) the offense is a violation of AS 11.41
or AS 11.46.400 and the offense occurred on school
grounds, on a school bus, at a school-sponsored event,
or in the administrative offices of a school district
if students are educated at that office; in this
paragraph,
(A) "school bus" has the meaning given in
AS 11.71.900;
(B) "school district" has the meaning given
in AS 47.07.063;
(C) "school grounds" has the meaning given
in AS 11.71.900;
(33) the defendant recklessly, knowingly,
or intentionally caused serious physical injury to a
pregnant woman, whether or not the defendant knew of
the pregnancy;
(34) the defendant caused physical injury
to a woman the defendant knew to be pregnant.
* Sec. 10. The uncodified law of the State of
Alaska is amended by adding a new section to read:
APPLICABILITY. AS 12.55.155(c), as amended by
sec. 9 of this Act, applies to offenses committed on
or after the effective date of this Act."
[HCS CSSB 20(JUD) was reported from the House Judiciary Standing
Committee.]
SB 261 - REGULATION OF HWYS; TRAFFIC OFFENSES
3:49:37 PM
CHAIR McGUIRE announced that the next order of business would be
CS FOR SENATE BILL NO. 261(FIN), "An Act relating to the
designation of traffic safety corridors; relating to the bail or
fine for an offense committed in a traffic safety corridor and
to separately accounting for such fines; and providing for an
effective date."
REPRESENTATIVE GRUENBERG moved that the committee adopt the
letter of intent for HCS CSSB 261(JUD), which had been reported
from the House Judiciary Standing Committee on 4/12/06. He
explained that the letter of intent simply requests that the
signs be placed every three miles rather than every 5 miles in
order to alert drivers.
CHAIR McGUIRE, upon determining that there were no objections,
announced that the letter of intent would accompany HCS CSSB
261(JUD).
HB 240 - BREWERY & BREWPUB LICENSES
3:50:40 PM
CHAIR McGUIRE announced that the final order of business would
be HOUSE BILL NO. 240, "An Act relating to brewery and brew pub
licensing." [Before the committee was CSHB 240(L&C).]
3:50:48 PM
CRAIG JOHNSON, Staff to Representative Lesil McGuire, Alaska
State Legislature, presented HB 240 on behalf of the sponsor,
the House Judiciary Standing Committee. He informed the
committee that the Brewers Guild of Alaska represents six
breweries and five brewpubs that operate within the state. The
brewery owners and the brewpub owners have united and developed
a compromise via CSHB 240(L&C) regarding the number of barrels
and gallons that a brewpub can produce and the number of free
samples that a brewery can produce. This legislation primarily
impacts Anchorage and Fairbanks. Basically, HB 240 levels the
playing field between breweries and brewpubs and with those
breweries and brewpubs outside of the state.
CHAIR McGUIRE informed the committee that she has gotten
involved with this issue because she believes it's an emerging
area of Alaska's economy.
REPRESENTATIVE KOTT noted that he is in receipt of a letter from
the Anchorage Cabaret, Hotel, Restaurant, & Retailers
Association (CHARR) recommending a change to HB 240 such that
all of those with beverage dispensary licenses would be allowed
to provide small samples of beer and wine for promotional
purposes. He asked if the aforementioned has been agreed upon.
3:55:59 PM
CHUCK EDWARDS, Chair, Government Affairs, Anchorage Cabaret,
Hotel, Restaurant, & Retailers Association (CHARR), relayed that
he spoke with the brewers and the distributors who would like
the opportunity to provide samples and maintain a level playing
field. Mr. Edwards commented, "Some of this stuff kind of makes
me feel like we're getting into the tavern business here."
CHAIR McGUIRE, upon determining no one else wished to testify,
closed public testimony on HB 240.
3:57:09 PM
REPRESENTATIVE KOTT made a motion to adopt Amendment 1, which
would insert the following language [original punctuation
provided]:
Notwithstanding (a) and (b) of this section, a
beverage dispensary licenses or licensee's agent or
employee, or a holder of a general wholesale,
wholesale malt beverage and wine licenses by non-
resident brewer or the agent or employees of these
licenses may provide, without charge, any customer a
small sample of beer or wine for promotional purposes.
REPRESENTATIVE GRUENBERG made a motion that Amendment 1 be
amended such that the first reference to "licenses" be changed
to "licensee". There being no objection, Amendment 1 was
amended.
CHAIR McGUIRE asked whether there were any objections to
Amendment 1, as amended. There being none, Amendment 1, as
amended, was adopted.
3:58:46 PM
REPRESENTATIVE KOTT moved to report CSHB 240(L&C), as amended,
out of committee with individual recommendations and the
accompanying fiscal notes. There being no objection, CSHB
240(JUD) was reported from the House Judiciary Standing
Committee.
ADJOURNMENT
The House Judiciary Standing Committee was recessed at 3:59 p.m.
to a call of the chair. [The meeting was reconvened on April
20, 2006.]
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