Legislature(2021 - 2022)BUTROVICH 205
04/26/2021 01:30 PM Senate JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| SB122 | |
| SJR6 | |
| SB53 | |
| SB82 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 122 | TELECONFERENCED | |
| += | SB 82 | TELECONFERENCED | |
| += | SJR 6 | TELECONFERENCED | |
| += | SB 53 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
SB 82-ELECTIONS; ELECTION INVESTIGATIONS
2:04:00 PM
CHAIR HOLLAND announced the consideration of SENATE BILL NO. 82,
"An Act relating to elections and election investigations."
2:04:21 PM
At ease
2:05:17 PM
CHAIR HOLLAND reconvened the meeting.
2:05:37 PM
SENATOR SHOWER moved to adopt the proposed committee substitute
(CS) for SB 82, [work order 32-GS1645\B, Version B], as the
working document.
There being no objection, Version B was before the committee.
2:06:20 PM
At ease
2:06:24 PM
CHAIR HOLLAND opened public testimony on SB 82.
2:06:56 PM
GHERT ABBOTT, representing self, Ketchikan, Alaska, offered his
belief that SB 82 is necessary because former President Trump
was unwilling to accept his 2020 election loss. In an attempt to
overturn the election result, he and his supporters constructed
a vast conspiracy theory about how the voting machine software
was programmed by the government of Venezuela and various other
actors. When repeated hand count returns confirmed the voting
machine accuracy, Mr. Trump and his supporters shifted the
accusations to ones about ballot stuffing. No courts or audits
found any evidence to support these allegations. Subsequently,
many state legislatures introduced bills with the intent of
reinforcing doubt and distrust in the election system.
He offered his belief that SB 82 is one of the bills that
pretend to solve a pretend problem, giving credibility to the
accusations that the 2020 election was fraudulent. SB 82 is not
necessary. He urged members to reject SB 82.
2:08:47 PM
BERT HOUGHTALING, representing self, Big Lake, Alaska, said he
will speak in support of any bill that will strengthen the
integrity of Alaska's elections. He offered his view that the
November 2020 election was full of fraud. However, it lacked
sufficient fraud to overturn the election results. The state
needs to clean up Alaska's election rolls and ensure that
Alaska's legal votes are counted. He offered his support for any
bill that will help ensure fair and free elections.
2:10:01 PM
CHAIR HOLLAND closed public testimony on SB 82.
2:10:30 PM
SENATOR KIEHL moved to adopt Conceptual Amendment 1 [work order
32-GS1645\B, Version B]. Conceptual Amendment 1 was prepared by
his office and is labeled Conceptual Amendment 7]. It read:
Offered to: CSSB 82(JUD), Draft Version "B"
Offered by: Sen. Kiehl
Pg. 4, following ln. 12:
Insert new subsection to read:
"(k) Any court action brought by the attorney general
to enforce this section against a candidate or elected
official must be brought within two years of the
filing of the complaint."
Reletter the following subsections accordingly.
CHAIR HOLLAND objected for discussion purposes.
2:10:51 PM
SENATOR KIEHL explained Conceptual Amendment 1 to Version B,
would replace [Amendment 2] which was offered, discussed and
withdrawn at the 4/23/21 hearing on SB 82. He said he has had
ongoing discussions with the Department of Law (DOL). He noted
DOL would prefer the original language in SB 82. Conceptual
Amendment 1 would provide the attorney general a two-year time
limit to bring action against a candidate or elected official.
He clarified that Conceptual Amendment 1 would not affect
complaints filed against the Division of Elections, a
municipality, political party or group. DOL would need to file a
complaint or drop the issue within two years of filing the
complaint.
2:12:28 PM
CORI MILLS, Senior Assistant Attorney General, Labor & State
Affairs Section, Civil Division, Department of Law, Juneau,
Alaska, agreed DOL prefers the original language in SB 82. While
she could not say the department supports Conceptual Amendment
1, providing a two-year statute of limitations would force DOL
to prioritize complaints. It would also clarify the status of an
investigation. Once the statute of limitations is over, it would
bring the finality that the committee desires. She offered her
belief that this language is at least workable if the committee
decides to take this route.
2:13:47 PM
SENATOR SHOWER related his understanding that a statute of
limitations sets up a time limit within which an action must be
brought. He asked if this means the investigation must be
completed within two years or if an investigation could continue
if the accusation is filed within the statute of limitation
timeframe.
2:14:29 PM
MS. MILLS responded that DOL would need to file an action with
the two-year limit but the investigation does not need to be
completed within the statute of limitations timeframe. At that
point, DOL would make it public that it was trying to enforce a
violation.
2:15:19 PM
SENATOR HUGHES stated that this would place some constraint on
DOL but she believes Conceptual Amendment 1 raises a valid
point. Many of the complaints made on candidates or incumbents
pertain to financial matters that would be handled by the Alaska
Public Offices Commission (APOC), such as residency, or
qualifications that would be determined within 30 days. She
offered her view that Conceptual Amendment 1 would pertain to a
limited number of incidents related to candidates. It would
require DOL to prioritize cases, which she does not object to.
Alaska is one of the few states without an elected attorney
general. She acknowledged that partisan actions could occur. She
said that the time limit is reasonable. She offered her support
for Conceptual Amendment 1.
2:17:06 PM
CHAIR HOLLAND maintained his objection.
A roll call vote was taken. Senators Hughes, Myers, Kiehl
Shower, and Holland voted in favor of Conceptual Amendment 1 and
no senators voted against it. Therefore, Conceptual Amendment 1
was adopted by a 5:0 vote.
2:17:44 PM
SENATOR KIEHL moved to adopt Conceptual Amendment 2, labeled
Conceptual Amendment 8, prepared by his office, which read:
Offered to: CSSB 82(JUD), Draft Version
Offered by: Sen. Kiehl
Pg. 3, lns. 29-31:
Delete: "Intelligence information of the attorney
general is not a public record and is not subject to
disclosure under AS 40.25.100 40.25.295."
CHAIR HOLLAND objected for discussion purposes.
2:18:03 PM
SENATOR KIEHL explained that Conceptual Amendment 2 arose from
the committee discussion on the meaning of intelligence
information. He said he held discussions with DOL and
subsequently reviewed the Public Records Act. Ultimately, he
concluded that DOL's exemption for intelligence information
should be removed from the bill. This exemption would create a
special, secret category that is not even provided to the Alaska
State Troopers or other law enforcement agencies. Some things do
not require disclosure. The underlying bill says the information
from these investigations would have the same exceptions and
protections. By removing intelligence information from SB 82, it
would not compromise law enforcement or disclose anything that
will become a hot issue in a court fight. The Public Records Act
allows the public to view government actions just as for other
agencies in state government. Although he tried to define
"intelligence information," he ultimately concluded "a special,
secret category" for DOL was not needed. Alaska has a good
Public Records Act that allows any confidential information
necessary to conduct an investigation be held confidential.
2:20:17 PM
SENATOR SHOWER expressed concern that some information during an
investigation should not be shared since it could jeopardize
cases or cause problems for law enforcement. He agreed that most
information should be released but it is also appropriate for
the department to provide transparency and be open. He offered
to research the pertinent statutes. He asked the administration
to comment.
2:21:47 PM
MS. MILLS responded that there may have been a misunderstanding
about what the department previously stated about the meaning of
intelligence. As a policy matter, DOL does not support
Conceptual Amendment 2, she said. Exempting information from the
Public Records Act allows the department to obtain information
from parties since the parties understand that this information
will be held in confidence. She expressed concern that
Conceptual Amendment 2 could affect the fiscal impact since the
department receives a substantial number of public records it
would need to review. She said most DOL records should not be
disclosed due to privacy concerns, law enforcement referrals or
ongoing investigations. In fact, when people file public records
requests related to criminal cases, DOL must advise them the
department cannot even disclose whether an investigation exists
since that disclosure could hinder an investigation. She said
she was unsure if their requests would even lead to the public
obtaining additional information. Yet, it would be burdensome to
the department to redact the documents. It is vitally important
in civil investigations to receive candid information. While the
public is inclined to expect confidentiality in law enforcement
matters, the public tends to be less certain that information
will be held confidential in civil matters. When drafting the
bill, the department was intentional in considering what should
be considered public information and what should be protected.
MS. MILLS pointed out DOL agreed to the notice of findings in
Conceptual Amendment 4 to Version A that was adopted at the
hearing on 4/23/21. DOL agreed the amendment would help to
ensure information will not hinder DOL investigations or lead to
overly burdensome redactions of information. She said she spoke
to Deputy General Skidmore to better understand the law
enforcement aspect. She reported it is important that
information DOL shares remains confidential to further criminal
investigations and to ensure open relationships with the
department's counterparts.
2:25:26 PM
SENATOR SHOWER referred to page 3, lines 29-31 of Version B,
which read:
Intelligence information of the attorney general is
not a public record and is not subject to disclosure
under AS 40.25.100 - 40.25.295.
SENATOR SHOWER clarified it was not his intention to give the
executive branch the ability to avoid giving the public
information. However, Intelligence information is important. He
referred to AS 40.25.120 related to public records, exceptions,
certified copies, to the exceptions under paragraph:
(6) records or information compiled for law
enforcement purposes, but only to the extent that the
production of the law enforcement records or
information
(A) could reasonably be expected to interfere with
enforcement proceedings;
(B) would deprive a person of a right to a fair trial
or an impartial adjudication;
(C) could reasonably be expected to constitute an
unwarranted invasion of the personal privacy of a
suspect, defendant, victim, or witness;
(D) could reasonably be expected to disclose the
identity of a confidential source;
(E) would disclose confidential techniques and
procedures for law enforcement investigations or
prosecutions;
(F) would disclose guidelines for law enforcement
investigations or prosecutions if the disclosure could
reasonably be expected to risk circumvention of the
law; or
(G) could reasonably be expected to endanger the life
or physical safety of an individual;
SENATOR SHOWER asked DOL to clarify what intelligence
information means.
2:27:43 PM
MS. MILLS restated her description of intelligence information
provided at the last hearing. DOL views intelligence information
as information that is gathered actively in an investigation.
She explained that the investigators may be gathering witness
testimony or obtaining documents that are not otherwise public.
All information gathered in an investigation is information that
could be used for law enforcement purposes, she said.
SENATOR SHOWER related his understanding that a substantial
amount of information relates to criminal proceedings, such as
for drug cases, in which lives could be jeopardized. However, he
related his understanding that this realm pertains more to civil
proceedings relating to election law. He surmised it wouldn't be
necessary to have undercover agents. He asked for confirmation
that that's not what is being discussed here.
MS. MILLS agreed. However, she said it is amazing how much
criminal conduct can be uncovered in civil investigations. It is
possible to find criminal conduct which would be referred
appropriately. She agreed election investigation activity does
not pertain to discussions related to criminal investigation,
such as search and seizure.
2:30:07 PM
JOHN HALEY, Assistant Attorney General, Special Litigation and
Consumer Protection, Civil Division, Department of Law,
Anchorage, Alaska, stated that generally speaking, the
department views intelligence information quite broadly. He
characterized intelligence information as information about
potential violations of law including tips from the public,
documents, or anything else gathered in the investigation. It
may include photographs, stakeout videos, or other types of
information that could occur within the context of a criminal
investigation or a civil investigation. He agreed with Ms.
Mill's comments that civil investigations can often uncover
criminal activity. Sometimes a violation of law could be civil
or criminal at the same time. For example, tax fraud or
securities fraud often relates to civil and criminal conduct.
He stated that one purpose of SB 82 was to create the ability to
get to court earlier through a civil process to allow certain
violations to be uncovered and remedied before it could affect
the outcome of an election. He offered his view that an
investigation could involve parallel investigations, in which
the civil section is investigating a matter at the same time the
criminal section may be investigating the same conduct. He
expressed concern that the potential to publicly disclose
information related to a civil investigation may cause some
consternation for criminal investigators. It could potentially
hinder an investigation, he said.
2:32:09 PM
SENATOR HUGHES referred to page 3, subsection (h) of SB 82,
Version B, that once the attorney general submits a notice of
findings to the division the record and notice are public
records. DOL expressed concerns about tipoffs during the
investigation. She asked whether this issue could be solved by
adding language that keeps intelligence information confidential
until the civil or criminal investigation is completed to
prevent hindering the investigation. She asked whether once an
investigation is completed if the intelligence information could
be released or if DOL is more concerned about the workload
envisioned due to the volume of investigations.
2:33:32 PM
MS. MILLS responded that this raises two issues. Once the civil
case is concluded, it might not mean the criminal investigation
is finished. The minute DOL reveals the name of those
interviewed or which photos were taken in a civil case, it could
adversely affect an ongoing criminal investigation. She
suggested that DOL would need to consider the statute of
limitations on the criminal conduct. Second, as mentioned
earlier, it raises the issue of the sheer volume of intelligence
information that would need to be reviewed and redacted as per
the exceptions in statutes Senator Shower read. Further, DOL
would not be reimbursed for any costs to do so. She said that
while she understands the concern about transparency and
accountability, perhaps it could be done in an aggregate way to
ensure accountability to the legislature, yet not hamper
investigations. DOL does not want to lose investigative tools
because witnesses are afraid that their participation in an
investigation will become public.
2:36:42 PM
SENATOR HUGHES asked whether part of the problem is that
intelligence information is broad. She suggested defining
intelligence information or to make it clear which information
cannot be released until any criminal and civil case is
completed. She asked whether adding another exemption in the
Public Records Act might solve the problem.
MS. MILLS responded that these are big policy questions. She
agreed it could be addressed in the Public Records Act but the
fiscal note would still need to be increased due to the review
process. DOL would prefer not to make any changes to the bill
related to this. She cautioned that since intelligence
information is a term used in other statutes, trying to solve
this issue could create another one. She pointed out SB 82 still
has two committee referrals. She suggested trying to figure out
how to carve that out. DOL has not previously needed to describe
categories of investigative tools or documents. She
characterized it as a policy conundrum that make take time to
think through to resolve any issues that might be caused by
opening this up.
2:39:41 PM
SENATOR KIEHL said Senator Hughes's questions get to the reason
for Conceptual Amendment 2, which is that the amendment would
not open everything up. Further, it would not subject anything
to the public records act until after the civil investigation is
completed. He acknowledged that intelligence information appears
in another statute and it is not defined. Senator Shower read an
extensive list of exceptions of disclosures, including that any
information related to an active criminal investigation would
not be disclosed. Anything made confidential by federal law,
such as information shared by the Department of Homeland
Security, or trade secrets would not need to be disclosed.
Ultimately, this amendment would pertain to post-investigative
actions. It's hard for him to see how it would create challenges
for DOL's civil division to work with the criminal division
since these are the rules that the criminal division works
under, he said. He said he was unsure what aggregate
accountability means. Ultimately, it appears that it would be "a
pain in the neck" for government to sift through intelligence
information. However, it should also be "a pain in the neck" for
government to keep things secret from the citizens once
investigations are completed. He acknowledged this comes with a
price but Alaska has a good Public Records Act, which should be
followed.
2:42:33 PM
CHAIR HOLLAND related his understanding that this would address
civil investigations and not necessarily criminal
investigations.
2:42:39 PM
SENATOR SHOWER expressed a willingness to work with DOL on the
definition for intelligence information.
2:43:08 PM
SENATOR HUGHES, speaking generally about the bill, stated that
the National Council of State Legislatures (NCSL) pointed out in
early 2000, an Act required states to establish a system for
complaints. Thus, SB 82 does not relate to the last election
cycle but rather that Alaska lags behind other states. She
stated her preference is to avoid a big fiscal note. SB 82 has a
referral to the Senate State Affairs Committee, where the issues
can potentially be addressed and still avoid a big fiscal
impact. She said she does not support Conceptual Amendment 2 to
Version B.
2:45:04 PM
CHAIR HOLLAND maintained his objection.
2:45:12 PM
A roll call vote was taken. Senator Kiehl voted in favor of
Conceptual Amendment 2 and Senators Myers, Shower, Hughes, and
Holland voted against it. Therefore, Conceptual Amendment 2
failed by a 1:4 vote.
2:45:42 PM
SENATOR KIEHL stated that two of his amendments were held in
abeyance from the 4/23/21 hearing on SB 82, Version A.
SENATOR KIEHL withdrew Amendment 1 [work order 32-GS1645\A.1]
and Amendment 2 [work order 32-GS1645\A.7] that were previously
tabled.
CHAIR HOLLAND stated that Amendment 1 and Amendment 2 are
withdrawn.
2:46:25 PM
SENATOR HUGHES asked the record to reflect that the state has a
duty to have a system in place to handle complaints. She
acknowledged that partisan politics exist. She offered her view
that an attorney general could potentially cover for the
Division of Elections. That is more apt to happen in Alaska
because Alaska does not have an elected attorney general who is
directly responsible to the people. She said she considered a
model with citizen oversight for the complaint process. For
example, if a complaint is filed with the division but is
dismissed, the complainant could request the attorney general
consider the matter. If the attorney general takes a partisan
position and declines the case, the complainant's next option
would be to file a case in superior court, which is an expensive
option. She could not find a model but she suggested that the
need exists. She said she appreciates that SB 82 addresses some
issues but the issue related to releasing information will
trigger a fiscal note. She maintained her view that citizen
oversight is a necessary component unless the state elects its
attorney general. SB 82 provides some important steps to provide
a system for complaints and investigations, she said. However,
one area of concern still needs to be addressed.
2:49:18 PM
SENATOR MYERS offered his view that this bill is not a response
to the 2020 election as one testifier indicated. He recalled
issues that arose in Alaska's 2018 election resulting in a case
with former Representative LeDoux that is not yet resolved. He
recalled that the investigation became public in 2020. Although
COVID-19 contributed to some of the delays in that case, SB 82
will provide tools to give the administration an opportunity to
resolve issues earlier and better serve the public.
2:50:55 PM
SENATOR SHOWER offered his view that election issues go back to
the 2012, 2014, and the 2016 elections and not just to the 2020
election.
2:51:51 PM
SENATOR SHOWER moved to report SB 82, work order 32-GS1645\B as
amended, from committee with individual recommendations and
attached fiscal note(s). There being no objection, CSSB 82(JUD)
was reported from the Senate Judiciary Standing Committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| CSSB82 version B.pdf |
SJUD 4/26/2021 1:30:00 PM |
SB 82 |
| SB53 and SJR6 Written Testimony.pdf |
SJUD 4/26/2021 1:30:00 PM |
SB 53 SJR 6 |
| Kroll_SB53_SJUD_042621.pdf |
SJUD 4/26/2021 1:30:00 PM |
SB 53 |