Legislature(2001 - 2002)

02/25/2002 01:10 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HB 405 - CRIMES COMMITTED ON STATE WATERCRAFT                                                                                 
                                                                                                                                
Number 0131                                                                                                                     
                                                                                                                                
VICE CHAIR OGAN announced that  the first order of business would                                                               
be HOUSE  BILL NO. 405,  "An Act  relating to the  prosecution of                                                               
criminal  offenses  committed on  or  against  ferries and  other                                                               
watercraft owned or  operated by the state; and  providing for an                                                               
effective date."                                                                                                                
                                                                                                                                
Number 0161                                                                                                                     
                                                                                                                                
REPRESENTATIVE MEYER, speaking  as the sponsor, said  that HB 405                                                               
would give  the state  jurisdiction over  state-owned watercraft,                                                               
even when that  watercraft is outside state waters.   He informed                                                               
the committee of the following:                                                                                                 
                                                                                                                                
     Recently   a   superior   court   judge   dismissed   a                                                                    
     prosecution for  a sexual assault  that occurred  on an                                                                    
     Alaskan  ferry while  in Canadian  waters.   The  court                                                                    
     found  that there  was no  statutory authority  for the                                                                    
     State of Alaska to prosecute  the crime even though the                                                                    
     defendant  and the  victim were  both Alaskans.   Under                                                                    
     the federal maritime law,  the United States government                                                                    
     has  jurisdiction  over   crimes  committed  on  United                                                                    
     States vessels in Canadian waters.                                                                                         
                                                                                                                                
REPRESENTATIVE  MEYER  said  that  the court's  dismissal  is  of                                                               
concern because  neither the federal government  nor the Canadian                                                               
government  is likely  to prosecute  the crime.   Generally,  the                                                               
federal  government doesn't  prosecute  offenses  such as  sexual                                                               
assault.    Furthermore,  the   Canadian  government  has  little                                                               
interest  in  pursuing  charges   involving  Alaskan  victims  on                                                               
Alaskan  state-owned ferries.    Therefore, Representative  Meyer                                                               
said he  felt it prudent  to pass  a state law  that specifically                                                               
provides the  state the  power to prosecute  cases such  as this,                                                               
and  to protect  and  defend passengers  on state-owned  vessels.                                                               
"House Bill  405 will  eliminate the  loophole that  prevents the                                                               
state from prosecuting such crimes in the future," he said.                                                                     
                                                                                                                                
REPRESENTATIVE MEYER noted that this  loophole was brought to his                                                               
attention by the Department of  Law.  This legislation would have                                                               
helped with  a recent situation  in which a 16-year-old  girl was                                                               
sexually  assaulted  on a  state-owned  ferry  while in  Canadian                                                               
waters  en route  from Seattle  to  Ketchikan.   The young  woman                                                               
reported the crime  to the police authorities in  Ketchikan.  The                                                               
Ketchikan district attorney presented the  case to the grand jury                                                               
in  Ketchikan, which  returned  an indictment  for  one count  of                                                               
sexual assault in  the first degree, one count  of sexual assault                                                               
in the  second degree,  and four  counts of  misdemeanor assault.                                                               
However,  the [Alaska]  Superior Court  dismissed the  indictment                                                               
due to  Alaska's lack of a  statute that authorized the  state to                                                               
prosecute under these circumstances.                                                                                            
                                                                                                                                
Number 0310                                                                                                                     
                                                                                                                                
REPRESENTATIVE MEYER  recalled Representative  Kookesh's comments                                                               
in the House Transportation Standing  Committee hearing, which he                                                               
paraphrased as follows:  "If  the Canadians won't take action and                                                               
the feds don't want to take  action, then we should at least have                                                               
the right to take action to  protect Alaskans and others from any                                                               
criminal activity that occurs on our state-owned vessels."                                                                      
                                                                                                                                
Number 0348                                                                                                                     
                                                                                                                                
REPRESENTATIVE   BERKOWITZ  remarked   that  [HB   405  is   well                                                               
intentioned].   However,  he predicted  that there  will be  many                                                               
questions  regarding the  state's ability  to assert  [statutory]                                                               
jurisdiction  in   conflict  with  either  federal   statutes  or                                                               
international treaties.   Representative Berkowitz  expressed his                                                               
desire  to ensure  that whatever  [the  legislature does]  works.                                                               
Representative Berkowitz  expressed concern with the  tendency to                                                               
jump before  the supreme court  has the  final word.   That seems                                                               
problematic in regard to separation of powers.                                                                                  
                                                                                                                                
VICE CHAIR OGAN noted that he  shared those concerns as well.  He                                                               
also noted that  HB 405 was passed from  the House Transportation                                                               
Standing  Committee  with  the   hopes  that  the  jurisdictional                                                               
concerns would be addressed in this committee.                                                                                  
                                                                                                                                
REPRESENTATIVE  MEYER  acknowledged  that  he  knew  that  was  a                                                               
concern for Vice Chair Ogan.                                                                                                    
                                                                                                                                
VICE CHAIR  OGAN said he  applauded what Representative  Meyer is                                                               
trying to do  [with HB 405].  He informed  the committee that his                                                               
staff had discussed this with  Tamara Cook, Legislative Legal and                                                               
Research Services, Legislative Affairs  Agency, who believes this                                                               
will  require  some  serious  legal research.    He  related  his                                                               
understanding that  [HB 405] is  saying that [the ferries]  are a                                                               
sovereign  piece  of  Alaska  that  moves  through  international                                                               
waters and  waters of  other states and  thus there  are probably                                                               
federal laws and maritime laws that might play into this.                                                                       
                                                                                                                                
Number 0532                                                                                                                     
                                                                                                                                
REPRESENTATIVE  KOOKESH   remarked  that  although  there   is  a                                                               
question of  jurisdiction, the  thrust of [HB  405] is  to [allow                                                               
Alaska]  that option  of doing  something  if no  one else  does.                                                               
Otherwise, a  crime would  go unpunished  and [the  victim] would                                                               
have no recourse.                                                                                                               
                                                                                                                                
REPRESENTATIVE JAMES related  her thought that if  [HB 405] isn't                                                               
passed, then the minute one is  outside of Alaska waters all hope                                                               
is gone.                                                                                                                        
                                                                                                                                
VICE CHAIR OGAN clarified that he  wanted something to be done in                                                               
these  situations.   However, he  said he  didn't want  to merely                                                               
pass a bill that doesn't  work; thus the jurisdictional questions                                                               
need to be resolved.                                                                                                            
                                                                                                                                
REPRESENTATIVE  KOOKESH reiterated  that it's  not a  question of                                                               
jurisdiction  but rather  of  moving  through the  jurisdictional                                                               
search  and  discovering  that  no  one  wants  to  do  anything.                                                               
Therefore, the  State of  Alaska needs  to be  there when  no one                                                               
else [does anything].                                                                                                           
                                                                                                                                
REPRESENTATIVE MEYER agreed with Representative Kookesh.                                                                        
                                                                                                                                
VICE CHAIR  OGAN inquired as  to whether this crime  was reported                                                               
to the Canadian government while the ferry was in Canada.                                                                       
                                                                                                                                
Number 0824                                                                                                                     
                                                                                                                                
ANNE  CARPENETI,  Assistant   Attorney  General,  Legal  Services                                                               
Section-Juneau,  Criminal  Division,  Department  of  Law  (DOL),                                                               
informed the committee  that AS 12.20.010 prohibits  the State of                                                               
Alaska from prosecuting  any case where another  case has already                                                               
been prosecuted,  regardless of  whether the  case resulted  in a                                                               
conviction or an acquittal.   Furthermore, Ms. Carpeneti recalled                                                               
that  the  state has  prosecuted  cases  on ferries  before  [the                                                               
recent case]  arose.   She knew that  [the state]  has prosecuted                                                               
cases  outside  the jurisdictional  limit  before  and the  issue                                                               
hasn't been raised.  She  noted that the state's jurisdiction has                                                               
been  upheld in  instances pertaining  to private  trawling boats                                                               
far outside  the state's  waters; therefore,  the concept  of the                                                               
state  exercising jurisdiction  under  these circumstances  isn't                                                               
unusual.                                                                                                                        
                                                                                                                                
MS.  CARPENETI  turned  to  the  recent  case  and  informed  the                                                               
committee that the defense attorney's  brief cited [AS 12.20.010]                                                               
and the  other statutory  basis for  jurisdiction.   Although the                                                               
state  statute   authorizes  jurisdiction  to   prosecute  crimes                                                               
committed outside Alaska's territory  when the harm occurs within                                                               
Alaska's territory, the  statute didn't seem to  be broad enough.                                                               
The  Superior Court  judge agreed.    Furthermore, she  suggested                                                               
that  the   Superior  Court  judge   felt  that   since  Alaska's                                                               
jurisdictional  law is  so tied  to  the statute,  a statute  was                                                               
necessary; thus the case was dismissed.                                                                                         
                                                                                                                                
MS.  CARPENETI  agreed that  other  jurisdictions  would have  an                                                               
interest in  a crime  committed on an  Alaskan ferry  in Canadian                                                               
waters.  One  such jurisdiction is the  federal government, which                                                               
hasn't  stepped  forward to  prosecute.    She assumed  that  the                                                               
Canadian  law  would  allow  Canada   to  prosecute  this  recent                                                               
offense,  but  they  haven't  done  so  either.    Ms.  Carpeneti                                                               
informed  the  committee that  in  this  recent case,  the  ferry                                                               
didn't stop  and return to a  Canadian port.  Instead,  the ferry                                                               
continued to  its next port,  which is the procedure  the ferries                                                               
follow.  Ms. Carpeneti noted that  there are no legal barriers to                                                               
[continue to the next port] as  long as there is a statute giving                                                               
the state  authority to take  jurisdiction.  Furthermore,  of the                                                               
three jurisdictions, Alaska probably  has the most connection and                                                               
interest in protecting this victim and others.                                                                                  
                                                                                                                                
Number 1107                                                                                                                     
                                                                                                                                
MS.  CARPENETI remarked,  "Now that  the issue  has been  raised,                                                               
it's  not  going to  go  away."    For  example, in  December  an                                                               
intoxicated woman  was hitting  one of  the crewmembers  over the                                                               
head  with a  Vodka  bottle.   The crewmembers  have  a right  to                                                               
protect themselves, as  do the ferries themselves,  and Alaska is                                                               
probably  the most  interested in  protecting its  ferries.   Ms.                                                               
Carpeneti noted  that as far as  she and her [staff]  knew, there                                                               
are  no  international treaties  that  would  forbid the  state's                                                               
exercise  of  this  jurisdiction.   She  said  that  "the  Geneva                                                               
Convention Treaty  on the  Flagship from 1954,"  18 USC  7, gives                                                               
the  United States  authority over  U.S.-flagged  vessels.   "The                                                               
United States  has never  preempted this  field ...  and excluded                                                               
... concurrent  state jurisdiction," she pointed  out.  Moreover,                                                               
concurrent  state   jurisdiction  has   been  allowed   far  into                                                               
international waters.   Therefore, she didn't  believe that there                                                               
is  a concern  that  the  proposed statute  is  going to  violate                                                               
international treaties.   Ms.  Carpeneti said  that she  and [her                                                               
staff]  have concluded  that as  long as  the connections  to the                                                               
state are  close enough  to satisfy due  process, then  the state                                                               
can do so [with] a statute.                                                                                                     
                                                                                                                                
Number 1235                                                                                                                     
                                                                                                                                
REPRESENTATIVE BERKOWITZ  related his understanding  that ferries                                                               
[sail]  four  waters:   state  waters,  federal  waters,  foreign                                                               
waters,  and  high  seas.   There  are  different  jurisdictional                                                               
issues attached to each type  of water.  Representative Berkowitz                                                               
said that if  a crime occurred on a ferry  within Alaskan waters,                                                               
there is  no question  [of jurisdiction].   If  there is  a crime                                                               
that occurs on  a cruise ship within Alaskan  waters, where would                                                               
the jurisdiction lay, he inquired.                                                                                              
                                                                                                                                
MS. CARPENETI answered  that she believes Alaska  or the flagship                                                               
could take jurisdiction.                                                                                                        
                                                                                                                                
REPRESENTATIVE  BERKOWITZ  posed a  situation  in  which a  crime                                                               
occurred  on a  ferry  in international  waters.   Representative                                                               
Berkowitz expressed  the need to  distinguish between  high seas,                                                               
foreign seas, and Canadian seas.   If something occurs on a ferry                                                               
in the high seas, who has jurisdiction, he asked.                                                                               
                                                                                                                                
MS. CARPENETI  answered that  if it were  an Alaskan  ferry, then                                                               
she thought  that Alaska could  take jurisdiction.  The  court of                                                               
appeals  has approved  Alaska's prosecution  pertaining to  theft                                                               
crab pots from a privately owned vessel on the high seas.                                                                       
                                                                                                                                
REPRESENTATIVE  BERKOWITZ related  his understanding,  then, that                                                               
this comes  down to  the site  of the  crime, which  was Canadian                                                               
waters in this case.                                                                                                            
                                                                                                                                
MS. CARPENETI remarked  that she believes that, in  any event, it                                                               
would be  best to have  a statute  such as proposed  here because                                                               
this issue will be litigated on fishing boats.                                                                                  
                                                                                                                                
REPRESENTATIVE  BERKOWITZ asked  if the  state would  be able  to                                                               
assert jurisdiction for a crime  against an Alaskan that occurred                                                               
while the Alaskan was standing on Canadian soil.                                                                                
                                                                                                                                
MS. CARPENETI answered  that she didn't believe  so, although she                                                               
wasn't sure.   "We're  not worried  about those  situations," she                                                               
said.                                                                                                                           
                                                                                                                                
REPRESENTATIVE BERKOWITZ posed  a situation in which  a crime had                                                               
occurred aboard  an [Alaskan]  ferry that was  tied up  at Prince                                                               
Rupert, Canada.                                                                                                                 
                                                                                                                                
MS.  CARPENETI   replied,  "I  think   there  would   [be]  three                                                               
jurisdictions, as there are now,  that could have an interest and                                                               
would have due  process rights ... and that would  be Canada, ...                                                               
the United States ..., and if this statute passed, Alaska."                                                                     
                                                                                                                                
Number 1399                                                                                                                     
                                                                                                                                
REPRESENTATIVE  BERKOWITZ related  his understanding,  then, that                                                               
HB 405 would create a sort of cascading jurisdiction.                                                                           
                                                                                                                                
MS. CARPENETI  said that  she considered  the jurisdiction  to be                                                               
concurrent.   However, she acknowledged that  if Canada exercised                                                               
jurisdiction  first, [then  Alaska would  be barred].   She  also                                                               
acknowledged that  the federal government doesn't  have a statute                                                               
similar to  AS 12.20.020;  however, she  didn't imagine  that the                                                               
federal  government would  [exercise its  jurisdiction if,  under                                                               
Alaska statutes, Alaska exercises jurisdiction first].                                                                          
                                                                                                                                
REPRESENTATIVE  BERKOWITZ asked  if  Alaska would  have to  allow                                                               
Canada the first chance at prosecution in a [similar] case.                                                                     
                                                                                                                                
MS. CARPENETI answered  that she didn't believe so.   She pointed                                                               
out that Canada hasn't exercised  any jurisdiction at all [in the                                                               
aforementioned case].   She continued, "And when  you think about                                                               
it, why  should they; it's an  Alaska boat, an Alaska  victim, an                                                               
Alaska problem."                                                                                                                
                                                                                                                                
REPRESENTATIVE BERKOWITZ  remarked that  if he were  Canadian, he                                                               
would  charge that  the  crime occurred  on  Canadian waters  and                                                               
Canada  has  the  responsibility  of  ensuring  safe  passage  of                                                               
travelers on  their waters.   He inquired  as to who  would [have                                                               
jurisdiction] if  there was  an assault  aboard a  fishing vessel                                                               
[crossing] Canadian waters.                                                                                                     
                                                                                                                                
MS.   CARPENETI  responded   that  it   would  depend   upon  the                                                               
circumstances.                                                                                                                  
                                                                                                                                
Number 1470                                                                                                                     
REPRESENTATIVE  BERKOWITZ commented,  "So, what  we're trying  to                                                               
do, then,  is extend the reach  of our jurisdiction as  far as we                                                               
can to protect Alaskan citizens."                                                                                               
                                                                                                                                
MS.   CARPENETI   clarified,   "We're  trying   to   extend   the                                                               
jurisdiction as far as it's fair to do so."                                                                                     
                                                                                                                                
REPRESENTATIVE  BERKOWITZ  inquired  as  to  why  this  is  being                                                               
restricted  to  Title  12  when   Title  22  discusses  extensive                                                               
jurisdiction  and  says  "that civil  jurisdiction  and  criminal                                                               
jurisdiction of the district court  of the State of Alaska extend                                                               
over the entire state."                                                                                                         
                                                                                                                                
MS. CARPENETI said that the intent  was to be precise in order to                                                               
avoid concerns of overreaching.                                                                                                 
                                                                                                                                
REPRESENTATIVE BERKOWITZ  mentioned that  there is  much criminal                                                               
activity that  occurs when people  are in the air;  therefore, he                                                               
pondered whether that activity could be reached.                                                                                
                                                                                                                                
MS. CARPENETI  related her  belief that  [the state]  can [reach]                                                               
such activity.   She highlighted the fact that  the last sentence                                                               
in  the proposed  statute was  added at  the insistence  of Jerry                                                               
Luckhaupt,  Attorney, Legislative  Legal  and Research  Services,                                                               
Legislative  Affairs  Agency,  in  order  to  clarify  that  this                                                               
proposed  statute wouldn't  limit [the  state's] jurisdiction  in                                                               
any  other way.    Ms. Carpeneti  noted that  the  intent was  to                                                               
ensure safe ferries for tourists, trade, and Alaska's citizens.                                                                 
                                                                                                                                
REPRESENTATIVE  BERKOWITZ  posed a  situation  in  which a  crime                                                               
occurs on  a flight between Anchorage  and Juneau.  He  asked who                                                               
would have jurisdiction.                                                                                                        
                                                                                                                                
MS. CARPENETI  answered, "I  think Alaska  does because  it would                                                               
happen in Alaska territory."   She noted that perhaps the federal                                                               
government  would have  jurisdiction because  the carrier  was an                                                               
interstate carrier.                                                                                                             
                                                                                                                                
Number 1565                                                                                                                     
                                                                                                                                
REPRESENTATIVE  BERKOWITZ asked,  "Aren't  the state's  interests                                                               
served  if we  can  make  sure that  our  citizens are  protected                                                               
whether they're  aboard state-owned ferries, or  private vessels,                                                               
or  aircraft,  whether  state  or privately  owned."    He  asked                                                               
whether  any future  problems could  be  preempted by  broadening                                                               
[the language].                                                                                                                 
                                                                                                                                
MS.  CARPENETI  said  that broadening  [the  language]  could  be                                                               
considered.   She emphasized  that the  purpose of  HB 405  is to                                                               
address a specific  problem although it could also  be applied to                                                               
other means of transportation if the committee chose.                                                                           
                                                                                                                                
REPRESENTATIVE  BERKOWITZ  commented,   "Generally  speaking,  we                                                               
encounter problems with the law when  we try and craft law ... to                                                               
respond  to  an  anecdotal  situation,  as  opposed  to  applying                                                               
general principles  across the board."   He pointed out  that [HB
405]  provides  an opportunity  to  apply  principles that  would                                                               
protect  Alaskans in  the air  and  on the  water, regardless  of                                                               
whether they were on state or  private vessels.  He expressed the                                                               
need to take advantage of such an opportunity.                                                                                  
                                                                                                                                
MS.   CARPENETI   said   that   she   understood   Representative                                                               
Berkowitz's point.                                                                                                              
                                                                                                                                
Number 1635                                                                                                                     
                                                                                                                                
REPRESENTATIVE  KOOKESH highlighted  the fact  that the  State of                                                               
Alaska doesn't  own an airline.   He  related his belief  that if                                                               
there is  a problem in the  air, the federal government  would be                                                               
there immediately, wanting  jurisdiction.  Representative Kookesh                                                               
said he also felt that there is  a large void, and if not filled,                                                               
Alaskans  won't have  any access  to a  court.   He noted  he had                                                               
difficulty  seeing  [Representative  Berkowitz']  rationale,  and                                                               
suggested  that   perhaps  any   specific  language   or  statute                                                               
recommendations pertaining to  aircraft could be looked  at via a                                                               
different  [bill].    He  remarked  that  there  is  currently  a                                                               
specific void  that HB  405 is  addressing.   After acknowledging                                                               
that  [HB 405]  isn't  going  to help  the  young  woman who  was                                                               
assaulted  on the  ferry, Representative  Kookesh  said it  could                                                               
help someone in a similar situation in the future.                                                                              
                                                                                                                                
Number 1710                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT inquired as to  whether there is a "criminal                                                               
long-arm  statute"  in  which [the  state]  asserts  jurisdiction                                                               
generally.                                                                                                                      
                                                                                                                                
MS.  CARPENETI  said that  AS  12.05.010  is considered  Alaska's                                                               
criminal long-arm  statute when acts committed  outside the state                                                               
have a harmful effect inside the  state.  That [statute] has been                                                               
interpreted to apply [in child custody cases].                                                                                  
                                                                                                                                
REPRESENTATIVE CROFT  remarked, "That doesn't begin  to cover the                                                               
sort of variety of situations."   He pointed out that there is no                                                               
statement, such as  in civil law, regarding  [usurpation] of [the                                                               
state's] jurisdiction to the maximum extent of due process.                                                                     
                                                                                                                                
MS. CARPENETI agreed, but pointed out  that there is a statute in                                                               
Title 44  that discusses jurisdiction,  adding that  [that title]                                                               
has been  argued in  similar cases.   She  also pointed  out that                                                               
jurisdiction has  been upheld for  private vessels.  There  is no                                                               
[statute] that  speaks to exercising  jurisdiction as far  as due                                                               
process or fairness.                                                                                                            
                                                                                                                                
REPRESENTATIVE CROFT  asked whether  that is  unusual.   Do other                                                               
states have criminal long-arm statutes, he asked.                                                                               
                                                                                                                                
MS. CARPENETI  answered that some  states do have  criminal long-                                                               
arm statutes.   Generally, state  [statutes] discuss harm  in the                                                               
state.   She  recalled a  case  in New  York in  which the  court                                                               
upheld jurisdiction  in Queens, New  York, for an  airplane crime                                                               
that was  committed over the Atlantic  Ocean.  In that  case, the                                                               
court  found, under  a statute  similar  but a  bit broader  than                                                               
Alaska's, that it was fair  for New York to exercise jurisdiction                                                               
because if people felt unsafe landing  in New York, then it would                                                               
impact the state economically.                                                                                                  
                                                                                                                                
Number 1872                                                                                                                     
                                                                                                                                
VICE CHAIR OGAN echoed an  earlier question regarding whether the                                                               
Canadian  authorities  were notified  of  this  crime, which  was                                                               
committed in their waters.                                                                                                      
                                                                                                                                
MS. CARPENETI replied that she  wasn't sure but would investigate                                                               
that  matter.    She  mentioned  that  Captain  Capacci,  General                                                               
Manager, Marine  Highway System,  Department of  Transportation &                                                               
Public Facilities (DOT&PF) may be  able to address this question.                                                               
She said  that as  far as  she knew, the  crime occurred  and the                                                               
vessel  proceeded to  Ketchikan.   In  further  response to  Vice                                                               
Chair  Ogan, Ms.  Carpeneti noted  that  the federal  authorities                                                               
were  notified  [of  the  crime].     And  although  the  federal                                                               
government acknowledged  jurisdiction, nothing  has been  done to                                                               
pursue that jurisdiction.  Ms.  Carpeneti said she didn't believe                                                               
the  witnesses  and  victims were  ever  interviewed  by  federal                                                               
authorities.   "The case was  investigated by the  state troopers                                                               
in Ketchikan," she stated.                                                                                                      
                                                                                                                                
VICE CHAIR  OGAN inquired as  to what  would happen if  a serious                                                               
crime  was committed  on  a Canadian  fishing  vessel in  Alaskan                                                               
waters.                                                                                                                         
                                                                                                                                
MS. CARPENETI  answered that  she believes  that it  would depend                                                               
upon the  circumstances.   In the  case of  a Canadian  victim in                                                               
which the Canadians exercised jurisdiction,  Alaska state law [AS                                                               
12.20.010]   prohibits   having   a  second   investigation   and                                                               
prosecution.  However, that doesn't  mean that the state couldn't                                                               
[exercise jurisdiction]  because if [the crime  was committed] in                                                               
Alaskan waters, the state could prosecute.                                                                                      
                                                                                                                                
Number 1963                                                                                                                     
                                                                                                                                
REPRESENTATIVE  COGHILL  inquired as  to  whether  the fact  that                                                               
there are only U.S. and Alaskan  ports of call would shore up the                                                               
case on the international waters issue.                                                                                         
                                                                                                                                
MS. CARPENETI  recalled that  the ferry  stops at  Prince Rupert,                                                               
Canada, in one direction.                                                                                                       
                                                                                                                                
CAPTAIN GEORGE  CAPACCI, General  Manager, Alaska  Marine Highway                                                               
System (AMHS), Department of  Transportation & Public Facilities,                                                               
answered  that last  year [the  ferry stopped  at Prince  Rupert,                                                               
Canada]; however, that won't be scheduled for this year.                                                                        
                                                                                                                                
REPRESENTATIVE COGHILL commented that  the Washington State [and]                                                               
Canadian ferry  systems probably  have similar issues,  and asked                                                               
whether [Washington State] has faced similar statutory problems.                                                                
                                                                                                                                
MS. CARPENETI answered  that she wasn't sure, but  noted that the                                                               
federal law  applies to Washington  State, as it does  to Alaska;                                                               
thus  the [federal  government] can  exercise jurisdiction  on an                                                               
American flagship  vessel, regardless of  what state it  is from.                                                               
She  said  she  assumes  that  Washington  State  has  concurrent                                                               
jurisdiction, as  other states  would, if the  vessel was  in its                                                               
waters.   Ms. Carpeneti  relayed, "I would  imagine ...  that the                                                               
federal government  is not necessarily that  much more interested                                                               
in prosecuting  sexual assaults on  Washington ferries  than they                                                               
are on Alaska State ferries."                                                                                                   
                                                                                                                                
REPRESENTATIVE  COGHILL remarked  that he  found some  comfort in                                                               
that.   He expressed interest  in information [on  the Washington                                                               
State  ferries] and  whether there  has  been case  law that  has                                                               
proceeded to the higher courts.                                                                                                 
                                                                                                                                
MS. CARPENETI offered to look into that.                                                                                        
                                                                                                                                
VICE CHAIR OGAN  remarked that this can't be the  first time that                                                               
this  has happened.    There  must be  other  cases  that can  be                                                               
reviewed.                                                                                                                       
                                                                                                                                
MS. CARPENETI  agreed that there  are other cases.   For example,                                                               
in  People v.  Corsino,  the  New York  court  upheld New  York's                                                             
exercise of  jurisdiction regarding an incident  that occurred on                                                               
an  airplane while  it was  flying  over the  Atlantic Ocean  and                                                               
subsequently landed  in Queens, New  York, due to  the connection                                                               
to  state interests.   Furthermore,  in an  incident involving  a                                                               
fishing vessel outside  territorial waters, Alaska's jurisdiction                                                               
regarding  prosecution under  Alaska's  theft  statutes has  been                                                               
upheld.                                                                                                                         
                                                                                                                                
VICE  CHAIR OGAN  posed  a hypothetical  situation  in which  Ms.                                                               
Carpeneti was  an attorney representing the  defendant, and asked                                                               
if she would make jurisdictional arguments.                                                                                     
                                                                                                                                
MS.  CARPENETI replied,  "No,  not  if we  had  a  statute."   In                                                               
further response  to Vice Chair  Ogan, Ms. Carpeneti  related her                                                               
belief that  if Alaska  had a  [jurisdictional] statute,  then it                                                               
would be covered.                                                                                                               
                                                                                                                                
Number 2159                                                                                                                     
                                                                                                                                
REPRESENTATIVE  BERKOWITZ returned  to  the  notion of  expanding                                                               
this  to include  aircraft.   He asserted  that the  Corsino case                                                             
seems to  suggest that  aircraft should be  included in  [HB 405]                                                               
because without  a statute addressing  a Corsino-type  problem in                                                             
Alaska,  the question  of jurisdiction  aboard an  aircraft could                                                               
raise the defense that there is no statute.                                                                                     
                                                                                                                                
MS. CARPENETI  expressed agreement with  Representative Kookesh's                                                               
earlier comment that Alaska doesn't have state-owned aircraft.                                                                  
                                                                                                                                
REPRESENTATIVE  BERKOWITZ  related  his  understanding  that  the                                                               
aircraft in the Corsino case was [commercially-owned].                                                                        
                                                                                                                                
MS.   CARPENETI  said   Representative  Berkowitz   was  correct.                                                               
However, [the  aircraft issue] doesn't  seem to be as  pressing a                                                               
problem, she noted,  since the federal government is  more apt to                                                               
prosecute [crimes committed] on aircraft.                                                                                       
                                                                                                                                
REPRESENTATIVE BERKOWITZ pointed  out that Alaska has  one of the                                                               
largest cargo  airports in the  country.  He reiterated  that [HB
405] provides  an opportunity to  address this problem  before it                                                               
happens, and that it should be utilized.                                                                                        
                                                                                                                                
MS. CARPENETI reiterated  that in the Corsino  case, the aircraft                                                             
wasn't  owned by  the  State of  New  York.   She  said that  she                                                               
wouldn't have any objection to including state-owned aircraft.                                                                  
                                                                                                                                
REPRESENTATIVE MEYER  said that  he wouldn't object  to including                                                               
state-owned aircraft either.                                                                                                    
                                                                                                                                
REPRESENTATIVE  BERKOWITZ stated  that  he  wasn't talking  about                                                               
that  specifically.    The  Corsino  case  was  about  commercial                                                             
aircraft.   If there is  the potential for a  commercial aircraft                                                               
problem, then [the state] should be able to fix it, he opined.                                                                  
                                                                                                                                
Number 2236                                                                                                                     
                                                                                                                                
REPRESENTATIVE KOOKESH  identified the question as  being who has                                                               
jurisdiction.   In  the case  of airlines,  there is  no question                                                               
that  the Federal  Aviation Administration  (FAA) would  be there                                                               
[asserting jurisdiction].   Someone  will take  jurisdiction with                                                               
airlines.   In the  case of  the crime  committed on  the Alaskan                                                               
ferry, no  one took jurisdiction;  thus the desire [with  HB 405]                                                               
is  to fashion  language that  specifies  that when  no one  else                                                               
exercises   jurisdiction,   the   state  wants   to   have   that                                                               
opportunity.  There is no FAA for the AMHS, he noted.                                                                           
                                                                                                                                
VICE  CHAIR OGAN  asked what  the AMHS's  policy is  if a  murder                                                               
occurred on a ferry [in international waters].                                                                                  
                                                                                                                                
CAPTAIN CAPACCI  answered that  the captain  of the  vessel would                                                               
secure  the situation  and  contact the  leadership  of AMHS  who                                                               
would then contact the authorities.                                                                                             
                                                                                                                                
VICE CHAIR  OGAN asked what  authorities would be contacted.   He                                                               
pointed out  that in the  situation that happened, the  ferry was                                                               
in Canadian waters.  Furthermore, he  said he felt that rape is a                                                               
serious  felony, and  asked what  happened  in the  case of  this                                                               
rape.                                                                                                                           
                                                                                                                                
CAPTAIN  CAPACCI  explained that  the  [leadership  of AMHS]  was                                                               
contacted and  the decision  was made to  proceed to  the nearest                                                               
[U.S.] port, which  was Ketchikan.  He noted that  the captain of                                                               
a vessel  has absolute power.   He  said that although  he didn't                                                               
believe the Canadian authorities  were contacted, he wasn't sure,                                                               
so he would check on that matter.                                                                                               
                                                                                                                                
VICE CHAIR OGAN asked if the suspect was placed in custody.                                                                     
                                                                                                                                
CAPTAIN CAPACCI  said that he  couldn't answer that  question now                                                               
[because] he  hasn't researched this  case.  In  further response                                                               
to Vice Chair Ogan, Captain  Capacci confirmed that [the captain]                                                               
has the authority to place people in custody.                                                                                   
                                                                                                                                
Number 2450                                                                                                                     
                                                                                                                                
REPRESENTATIVE COGHILL  posed a  hypothetical situation  in which                                                               
there was  a citizen from  another country involved  in felonious                                                               
behavior.  He  asked if the jurisdictional  problem would surface                                                               
to a greater degree.                                                                                                            
                                                                                                                                
MS.  CARPENETI related  her  belief  that it  would  be the  same                                                               
situation [that  HB 405  attempts to address].   If  this statute                                                               
were passed,  the state  would have  jurisdiction and  the [other                                                               
country] would also have jurisdiction.                                                                                          
                                                                                                                                
REPRESENTATIVE MEYER  surmised that  the captain  probably viewed                                                               
moving to the next U.S. port as the best option.                                                                                
                                                                                                                                
TAPE 02-23, SIDE B                                                                                                              
Number 2505                                                                                                                     
                                                                                                                                
REPRESENTATIVE MEYER  agreed with Representative  Kookesh's point                                                               
that had the  incident on the ferry occurred on  an aircraft, the                                                               
federal government would've been involved.   If later it is found                                                               
that incidents  on aircrafts  are [not]  being prosecuted  by the                                                               
federal government,  then that could  be addressed at  that time,                                                               
he  suggested.   He  expressed  his desire  to  limit  HB 405  to                                                               
[ferries and other state-owned watercraft].                                                                                     
                                                                                                                                
REPRESENTATIVE BERKOWITZ turned to  State v. Stepanski, a Florida                                                             
case  that references  the  reinstatement  of foreign  relations.                                                               
Representative  Berkowitz said  that  [this  Florida case]  says,                                                               
generally:                                                                                                                      
                                                                                                                                
     A  state  has  jurisdiction   of  prescribed  law  with                                                                    
     respect to conduct that wholly,  or in substantial part                                                                    
     takes place  within its territory  with respect  to the                                                                    
     status  of  persons  or  interests  in  things  present                                                                    
     within  its  territory,  or  see  conduct  outside  its                                                                    
     territory that  has or is intended  to have substantial                                                                    
     effect   within  a   territory   ...  the   activities'                                                                    
     interest,  status,   or  relations  of   its  nationals                                                                    
     outside as well as within its territory.                                                                                   
                                                                                                                                
REPRESENTATIVE BERKOWITZ  said, therefore,  that he felt  that in                                                               
asserting   jurisdiction   that   relates  to   the   activities,                                                               
interests, status, or  relations of Alaskans, the  state would be                                                               
within [its  rights].   He reiterated that  [HB 405]  provides an                                                               
opportunity to  do something of  general applicability,  which he                                                               
felt might protect  the state's interests, in ways  that can't be                                                               
fathomed  now,  while  responding   to  the  issues  raised  this                                                               
incident.                                                                                                                       
                                                                                                                                
REPRESENTATIVE  MEYER remarked  that  the  government [often]  is                                                               
criticized  for overextending  itself,  and he  wasn't sure  that                                                               
there is  a problem  with aircraft yet.   Furthermore,  he opined                                                               
that if the  Department of Law felt that there  is a problem with                                                               
aircraft, then that  issue would have been  brought forward also.                                                               
Therefore,  although he  was open  to expanding  [HB 405]  if the                                                               
Department of  Law felt it  necessary, he preferred to  limit [HB
405] to [ferries and other  state-owned watercraft].  The AMHS is                                                               
unique  to  Alaska and  needs  additional  protection, which,  he                                                               
said, he didn't believe was necessary for aircraft.                                                                             
                                                                                                                                
REPRESENTATIVE BERKOWITZ posed a  hypothetical situation in which                                                               
there was a  sexual assault on a  privately owned Alaskan-flagged                                                               
vessel  transiting  Canadian waters.    He  asked whether  Alaska                                                               
would be  able to assert  jurisdiction in such  a case if  HB 405                                                               
became law.                                                                                                                     
                                                                                                                                
Number 2376                                                                                                                     
                                                                                                                                
MS. CARPENETI  clarified that although [HB  405] wouldn't exclude                                                               
jurisdiction,  it   wouldn't  provide  for  it   either;  HB  405                                                               
specifies, "This jurisdiction is in  addition to that provided by                                                               
AS 44.03 and any other  jurisdictional basis expressed or implied                                                               
in law."                                                                                                                        
                                                                                                                                
REPRESENTATIVE  BERKOWITZ surmised,  then,  that if  there was  a                                                               
problem on a fishing vessel  and [HB 405] only addresses [ferries                                                               
and  other  state-owned  watercraft],   then  the  problem  would                                                               
continue for fishing vessels.                                                                                                   
                                                                                                                                
MS. CARPENETI  remarked that in  the [department's]  opinion, [HB
405] is a specific clarification  of jurisdiction.  Ms. Carpeneti                                                               
noted  her respect  for Representative  Berkowitz' approach,  but                                                               
acknowledged  that it's  difficult, politically,  to make  a far-                                                               
reaching jurisdictional statement that both bodies would adopt.                                                                 
                                                                                                                                
REPRESENTATIVE  BERKOWITZ pointed  out that  other states  extend                                                               
their citizens  these type protections  and, thus,  he questioned                                                               
why  Alaskans  are less  protected  than  the citizens  of  other                                                               
states.   He said he was  willing to place that  issue before the                                                               
Senate.                                                                                                                         
                                                                                                                                
MS. CARPENETI  mentioned that Alaskans  aren't protected  per the                                                               
ruling of the [Alaska] Superior Court judge [in the case].                                                                      
                                                                                                                                
REPRESENTATIVE  BERKOWITZ  turned to  the  issue  of the  federal                                                               
government exercising  jurisdiction, and  pointed out  that there                                                               
may  be instances  when the  federal laws  aren't as  friendly as                                                               
state  laws with  regard to  prosecution and  pursuit of  a civil                                                               
action.  Therefore,  he felt that "we" should  preserve the right                                                               
to Alaska jurisdiction whenever possible.                                                                                       
                                                                                                                                
MS.  CARPENETI remarked  that  international  water doesn't  pose                                                               
nearly the  problem.  Alaska  has had its jurisdiction  upheld in                                                               
international waters.   Therefore,  she isn't as  concerned about                                                               
the  Stepanski situation  as much  as with  the Alaska  situation                                                             
because  the   court  has  upheld  Alaska's   exercise  of  state                                                               
prosecution of the  state's criminal laws -  state theft statutes                                                               
- in international waters.                                                                                                      
                                                                                                                                
Number 2255                                                                                                                     
                                                                                                                                
REPRESENTATIVE MEYER  related his  belief that  HB 405  is merely                                                               
filling  a  loophole,  adding that  if  Representative  Berkowitz                                                               
wants to  bring forth  legislation that is  broader in  scope, he                                                               
would be willing to work with him.                                                                                              
                                                                                                                                
VICE CHAIR OGAN  pointed out that the personal  bill deadline has                                                               
already passed  and since Representative Berkowitz  doesn't chair                                                               
a committee, he can't introduce a committee bill.                                                                               
                                                                                                                                
REPRESENTATIVE JAMES  interjected that [jurisdiction  on ferries]                                                               
is  a  critical  issue  today,  whereas  [jurisdiction  on  other                                                               
transportation modes] isn't.                                                                                                    
                                                                                                                                
Number 2181                                                                                                                     
                                                                                                                                
JERRY  LUCKHAUPT,   Attorney,  Legislative  Counsel,   Legal  and                                                               
Research Services Division,  Legislative Affairs Agency, informed                                                               
the  committee that  when  this  bill was  being  drafted he  had                                                               
discussions with  Ms. Carpeneti.   He explained  that he  took an                                                               
approach similar  to that put forth  by Representative Berkowitz.                                                               
Usually, the  desire is to be  as broad as possible.   He pointed                                                               
out  that Alaska  has a  bit more  protection due  to the  double                                                               
jeopardy provision that specifies  that Alaska can't prosecute if                                                               
someone else has.  Basically, Alaska  is the only state with such                                                               
a provision.   He indicated  that the lack  of such a  statute in                                                               
other states  has resulted  in situations  such as  Terry Nichols                                                               
being  prosecuted  by  the  State of  Oklahoma  even  though  the                                                               
federal government had already convicted him.                                                                                   
                                                                                                                                
MR.   LUCKHAUPT  informed   the   committee   that  the   federal                                                               
government's   jurisdiction  has   been  recognized   to  include                                                               
maritime jurisdiction  over any  U.S.-flagged vessel  anywhere in                                                               
the world, at any time, for any  offense.  He said that the first                                                               
U.S.  Supreme Court  case on  this issue  occurred in  1893; that                                                               
case involved a felony that  occurred on a U.S.-flagged vessel in                                                               
Canadian waters  and the U.S.  had jurisdiction over  the offense                                                               
because it  was committed on  a U.S.-flagged vessel.   Since that                                                               
time,  the  [federal]  maritime  jurisdiction  statute  has  been                                                               
amended to include aircraft and  spacecraft.  The U.S. government                                                               
has expanded the criminal statutes  to include offenses committed                                                               
against any U.S. citizens anywhere  in the world; furthermore, an                                                               
offense committed by a U.S.  citizen anywhere in the world raises                                                               
a jurisdictional [issue].                                                                                                       
                                                                                                                                
MR. LUCKHAUPT noted  that various states have  taken [the federal                                                               
government's] lead,  and opined  that the  State of  Alaska would                                                               
have criminal jurisdiction [in the  aforementioned case as well].                                                               
Although  the  trial court  didn't  agree,  Title 44  includes  a                                                               
provision  that says  the  state has  jurisdiction  any time  the                                                               
federal  government says  it  has jurisdiction.    "If they  have                                                               
jurisdiction, we  have jurisdiction, and that  should be enough,"                                                               
he said.                                                                                                                        
                                                                                                                                
Number 1982                                                                                                                     
                                                                                                                                
MR. LUCKHAUPT clarified that [the  section he was referring to is                                                               
AS 44.030.010(2)] which reads as follows:                                                                                       
                                                                                                                                
     (2) the  high seas to  the extent that  jurisdiction is                                                                    
     claimed  by the  United States  of America,  or to  the                                                                    
     extent  recognized   by  the  usages  and   customs  of                                                                    
     international law  or by agreement to  which the United                                                                    
     States of America or the state is a party....                                                                              
                                                                                                                                
He   interpreted  that   paragraph  to   mean  that   Alaska  has                                                               
jurisdiction because the federal  government has jurisdiction, by                                                               
both international law  and federal statute.  But  "we didn't win                                                               
on that" issue, he acknowledged.   Mr. Luckhaupt pointed out that                                                               
there have  been a  number of sexual  assaults by  crewmembers on                                                               
cruise  ships in  Florida  and California,  and  that there  were                                                               
problems regarding who would prosecute in those instances.                                                                      
                                                                                                                                
MR. LUCKHAUPT  explained that currently, Florida  has the longest                                                               
long-arm  criminal  statute  in  the  United  States  and  has  a                                                               
provision  that if  half of  the people  either get  on board  or                                                               
disembark at a  Florida port, then Florida has  jurisdiction.  He                                                               
added that  that provision  covers the  Stepanski case,  in which                                                             
the  Florida  Supreme  Court  affirmed  Florida's  jurisdictional                                                               
statute.                                                                                                                        
                                                                                                                                
Number 1798                                                                                                                     
                                                                                                                                
REPRESENTATIVE  MEYER related  his  understanding  that Title  44                                                               
refers to  the high seas,  and that  the incident on  the Alaskan                                                               
ferry  didn't occur  on the  high seas.   He  asked whether  [the                                                               
aforementioned] provision in Title 44 would apply.                                                                              
                                                                                                                                
MR.  LUCKHAUPT noted  that when  the legislation  was brought  to                                                               
him, he  was not told whether  the incident occurred on  the high                                                               
seas or  in Canadian waters,  though clearly the  incident didn't                                                               
occur  in  port.     Mr.  Luckhaupt  said  that   until  a  final                                                               
determination has  been made, he is  not ready to give  up on the                                                               
issue   of   Alaska's   jurisdiction.       Furthermore,   if   a                                                               
jurisdictional basis is asserted,  then it doesn't matter whether                                                               
the  vessel  is  in  port   or  not;  for  example,  the  federal                                                               
government  has  jurisdiction   over  any  U.S.-flagged  vessels,                                                               
regardless of  whether it's in  port or in anyone  else's waters.                                                               
Mr.  Luckhaupt  said, "Usually  you  don't  go wrong  with  going                                                               
broader in these situations."                                                                                                   
                                                                                                                                
REPRESENTATIVE MEYER highlighted the  fact that the Department of                                                               
Law  views it  differently  than Mr.  Luckhaupt.   Therefore,  he                                                               
offered to meet with Ms. Carpeneti  and Mr. Luckhaupt in order to                                                               
discuss this.   In  response to  Vice Chair  Ogan, Representative                                                               
Meyer noted his preference to move HB 405.                                                                                      
                                                                                                                                
Number 1673                                                                                                                     
                                                                                                                                
REPRESENTATIVE  JAMES moved  to report  HB 405  out of  committee                                                               
with  individual  recommendations  and  the  accompanying  fiscal                                                               
notes.                                                                                                                          
                                                                                                                                
REPRESENTATIVE BERKOWITZ  announced that before the  bill reaches                                                               
the House  floor, he  would be requesting  an amendment  from the                                                               
drafter  to offer  on the  House floor.   He  specified that  the                                                               
amendment would be  to extend jurisdiction as far  as possible in                                                               
order  to  assert jurisdiction  over  Alaskan  citizens [and]  to                                                               
protect Alaskan victims wherever they might be.                                                                                 
                                                                                                                                
REPRESENTATIVE  MEYER suggested  that perhaps  "the three  of us"                                                               
could meet to discuss what the amendment would do to the bill.                                                                  
                                                                                                                                
VICE CHAIR OGAN  remarked that he believes  the appropriate place                                                               
to offer a substantive amendment is in the committee.                                                                           
                                                                                                                                
REPRESENTATIVE BERKOWITZ said that he  is just announcing what he                                                               
is going to do.  "If  we leave Alaskans unprotected, the shame is                                                               
on us," he charged.                                                                                                             
                                                                                                                                
Number 1619                                                                                                                     
                                                                                                                                
VICE CHAIR  OGAN asked if there  is any objection to  the motion.                                                               
There  being no  objection, HB  405 was  reported from  the House                                                               
Judiciary Standing Committee.                                                                                                   
                                                                                                                                

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